Case Law Update: A Municipality Can Have Sovereign Immunity When A Typically Ministerial Act Is Deemed Discretionary

The Court of Appeals recognized how the traditionally ministerial act of vehicle maintenance can become discretionary when the maintenance act at issue is neither standard nor routine. In City of Milledgeville v. Primus, 325 Ga. App. 553, 753 S.E.2d 146 (2013), Lucricious Primus was injured when the brake line burst in the bus he was driving, causing the front brakes to fail. Mr. Primus swerved off the road to avoid careening through an intersection, and crashed into a utility pole, sustaining neck and shoulder injuries.   Primus sued the City of Milledgeville, who maintained the bus, for negligence, alleging an adequate inspection would have revealed the problem with the break line. The Court of Appeals reversed the denial of summary judgment to the City of Milledgeville, finding that Primus failed to meet his burden of showing a clear standard for such inspections. Without any evidence that the City deviated from a clear standard, the act was a discretionary one and sovereign immunity applied.

Sovereign immunity applies to municipalities, unless the General Assembly waives it by law. “Traditionally, municipalities have been subject to suit for negligent performance or nonperformance of their ministerial functions while enjoying immunity from suit for the negligent performance or nonperformance of their governmental or discretionary functions.” J. N. Legacy Group v. City of Dallas, 322 Ga. App. 475, 478, 745 SE2d 721 (2013). A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. Russell v. Barrett, 296 Ga. App. 114, 117, 673 SE2d 623 (2009). The City of Milledgeville conceded that it had a ministerial duty to maintain and inspect the bus, but that the decision whether to replace the brake line of the bus was a discretionary act.

The Court of Appeals agreed with the City. The court found that there was no standard replacement schedule for the brake lines, as opposed to the routine maintenance of oil, air filters, or tires on the timetable recommended by the vehicle’s manufacturer. The City’s chief mechanic stated in an affidavit that the brake line is a “lifelong part to the vehicle,” and not “typically ever replaced.” A mechanic would only replace the brake line if, in the exercise of their judgment, they saw some reason to do so. Thus, while the maintenance of a vehicle is generally ministerial in nature, the specific act of replacing a brake line was discretionary. The distinction between a ministerial and a discretionary act for negligence in municipalities has always rested on a knife’s blade. And knowing the difference between the two can give you the legal edge.

Nathan J. Smith