Roberts et al. v. Mulkey et al.

In plaintiffs' personal injury suit, the trial court erred in granting summary judgment to defendant on the basis of official immunity because defendant negligently failed to perform a ministerial act and official immunity thus did not bar the suit.

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Ellington, Presiding Judge.Tracey Roberts and her husband were injured when the van she was driving collided with a pile of dirt and then an excavator at a Carroll County Water Authority (CCWA) work site. Roberts, individually and as temporary administrator of her husband’s estate,^{^[1]} filed this personal injury action in the State Court of Carroll County against CCWA and Henry Junior Mulkey, a CCWA employee, in his individual capacity. The trial court granted summary judgment to Mulkey on the basis of official immunity and CCWA on the basis of sovereign immunity and dismissed Roberts’s complaint with prejudice. In an alternate holding, the trial court found that even if Mulkey and CCWA were not immune from suit, they were entitled to summary judgment on the merits. On appeal, Roberts contends that the trial court erred (i) in finding that her claims against Mulkey were barred by official immunity, (ii) in dismissing her claims against CCWA on the grounds of sovereign immunity when that issue was not raised in the motion for summary judgment, and (iii) in finding that she was the sole proximate cause of the collision and subsequent injuries. For the reasons set forth below, we reverse in part and vacate in part. Under OCGA § 9-11-56 (c),[s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

Roberts et al. v. Mulkey et al.

In plaintiffs' personal injury suit, the trial court erred in granting summary judgment to defendant on the basis of official immunity because defendant negligently failed to perform a ministerial act and official immunity thus did not bar the suit.

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