Although we charge police and fire departments with protecting lives and property, as a matter of law it is difficult to actually sue these agencies if they fail in their duties. Georgia law extends sovereign immunity to absolve state agencies of any liability arising from a “failure to provide, or the method of providing, law enforcement, police, or fire protection.” But there are cases in which a victim may sue the state for negligent application of existing police or fire protection policies, at least according to one recent decision by the Georgia Court of Appeals.
Grant v. Georgia Forestry Commission
In March 2011 the Georgia Forestry Commission issued a burn permit to a landowner in Bulloch County. Such permits are required before anyone can burn “natural vegetation that is hand piled” such as leaf piles. Unfortunately in this case, the landowner’s fire burned out of control. A fire protection ranger employed by the Commission arrived at the scene to assume responsibility for managing the situation.
After several hours, the ranger determined that the fire had been contained. But the damage was extensive. About 45 acres of land had burned, producing a massive amount of smoke that reduced highway visibility well into the next morning. Sometime between 5:30 a.m. and 5:50 a.m. that next morning, a car traveling through a smoke-and-fog-filled portion of Interstate 16 collided with a tractor trailer, killing the father and son in the car.
The wife and mother of the victims subsequently filed a wrongful death lawsuit against the Forestry Commission and the Georgia Department of Transportation. With respect to the Commission, the plaintiff alleged the agency was negligent in “failing to notify” other government agencies about the “potentially hazardous conditions” generated by the wildfire. More specifically, the plaintiff said the Commission was negligent in “failing to coordinate” with the Department of Transportation to place appropriate warning signs on I-16 just before the accident. As for the Department, the plaintiff alleged it was negligent in “failing to monitor I-16” and failing to “assess” and “warn” motorists of hazardous conditions due to the fire.
In a July 14 decision, the Georgia Court of Appeals barred all but one of the plaintiff’s claims. A trial court previously dismissed the entire complaint on sovereign immunity grounds. But the Court of Appeals said the plaintiff could proceed against the Commission on one issue. While sovereign immunity protects state employees in the exercise of discretionary judgment, it does not protect against negligent acts that are not authorized by official policy.
In this case, there is a written policy memorandum between the Commission, the Department, and the Georgia State Police on how to handle “Reduced-Visibility Driving Situations on State Roads.” Among other things, the Court of Appeals said that under this policy the Commission has a legal duty to advise the State Police “of the existence of any large controlled burns or wildfires in the vicinity of state roadways.” The Commission’s fire ranger testified that he did not notify the State Police directly; rather he asked a 911 operator to inform the police and the local sheriff’s office about the uncontrolled fire. The appeals court said this may constitute a negligent act not covered by sovereign immunity. Accordingly, it returned the case to the trial court for further proceedings.