In many of the rural parts of our state, it’s not uncommon for property owners to burn vegetation or other materials on their property. Although these burnings are regulated and are typically performed without incident, they do pose some hazards. Indeed, in a recent decision, Grant v. Georgia Forestry Comm., the Georgia Court of Appeals needed to determine what, if any, liability existed against the Georgia Forestry Commission for an auto accident caused, in part, by smoke from a regulated burning.
The accident at issue in this case occurred in the early morning of March 17, 2011. On the day before, the Georgia Forestry Commission (“GFC”) issued a burn permit to a property owner who lived near Interstate 16 and wished to burn vegetation on his land. At around 3 p.m. that day, the local Chief Ranger of the Bulloch County GFC fire protection unit received notice of a fire on that property. When he arrived, the ranger observed the fire burning out of control and initiated measures to contain and monitor the fire. Among these measures were the posting of smoke/fog warning signs and the placement of local deputies to handle traffic issues. At around 7 p.m. that day, the Chief Ranger determined that the blaze had been contained, although the burned area continued to smoke. The Chief Ranger saw the smoke drifting toward the southeast away from I-16, which was about three-quarters of a mile to the north of the closest part of the burn area, and he reported seeing no visibility issues on either I-16 or another local thoroughfare. The Chief Ranger nevertheless called 911 to provide notice of smoke in the area and directed the the local county sheriff to continue to monitor the situation. At around 5 p.m. that day, a local official for the Georgia Department of Transportation (“GDOT”) also responded to notice of the fire and placed warning signs in both directions on a local state road. The GDOT official returned to the area at 7:45 and reported no visibility issues but left the signs in place.
On the following morning, the Chief Ranger was returning to the burn site when he received notice of an accident. At some time between 5:30 and 5:50 a.m., the late husband and son of the plaintiff in this action, who brought the case on the decedents’ behalves, collided with a tractor trailer along I-16. At the time of the collision, there was little to no visibility on the interstate as a result of smoke and fog. When the Chief Ranger arrived at the scene, he observed that the area was enveloped in dense fog and smoke, but he reported he was able to breathe normally, suggesting that the mixture did not contain enough smoke to cause respiratory difficulty. At around this time, the GDOT official also received notice that he should place warning signs along I-16. While en route to I-16, the official received notice that the interstate had been closed because of an accident and that local law enforcement was asking for assistance in setting up a detour. When the official arrived at the scene, he reported that the fog and smoke were so thick that he could not see beyond the hood of his truck. Following this tragic event, the plaintiff filed suit against both GFC and GDOT, alleging negligence. The defendants moved to dismiss, asserting that they were immune under the doctrine of sovereign immunity. The trial court granted the motion, and the plaintiff thereafter filed the current appeal.
In relevant part, the plaintiff asserted that GFC was negligent by allegedly failing to notify other government agencies of the potentially hazardous condition caused by the fire and to coordinate with GDOT to put signs in place to warn the public of these conditions. O.C.G.A. § 50-21-24 (6) absolves the State of liability for losses associated with “policy decisions by state employees and officers . . . relating to the amount, disbursement, and use of equipment and personnel to provide law enforcement, police or fire protection services, and to the acts and omissions of state employees and officers executing . . . those policies.” Ga. Forestry Comm. v. Canady, 280 Ga. 825, 830 (2006). Importantly, “[t]he [S]tate is immune . . . if the alleged negligence causing . . . injury . . . lies in some defect in the policy itself” but does not immunize the State from liability if the agent of the state “is implementing a non-defective policy . . . in a negligent manner” or if the “act or omission . . . is not authorized by any policy.” Ga. Dept. of Public Safety v. Davis, 285 Ga. 203, 206 (2009).
Applying the foregoing principles, the Court of Appeals determined that the claims against GFC were not properly dismissed on the basis of sovereign immunity. First, pursuant to existing policy concerning the distribution of responsibilities in such emergency situations, GFC was only responsible for reporting to GDOT existing poor visibility conditions rather than conditions creating the potential for future poor visibility conditions. Likewise, the existing policy only required that GFC coordinate with GDOT when there were existing limited visibility conditions. Since GFC did not receive notice of these visibility conditions until after being notified of the accident, it could not be said that GFC’s agents acted negligently in executing the policy. However, a separate policy provision required GFC to report large controlled burns or wildfires to the Georgia State Patrol (“GSP”). Although the Chief Ranger did call 911 and request that GSP be informed about the contained fire and smoke conditions, the policy did not explicitly provide for the delegation of this duty to 911 operators, and the record was otherwise silent as to whether GSP did in fact receive notice. Accordingly, since sovereign immunity is unavailable for negligent omissions not authorized by any policy, see Davis, 285 Ga. at 206, the Court of Appeals determined the trial court improperly applied sovereign immunity to the claims against GFC and reversed.
In addition, the Court of Appeals determined that the GFC claims were not otherwise subject to sovereign immunity under the discretionary duty exception, see O.C.G.A. § 50-21-24 (2) (“The state shall have no liability for losses resulting from . . . [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee”), since the issue was not properly raised and argued at the trial court level, and, moreover, the trial court record was insufficient to make such a determination. However, the Court of Appeals found the the claims against GDOT were properly dismissed on sovereign immunity grounds and affirmed the trial court order with respect to those claims.
Although the claims against GDOT are lost, the revival of the claims against GFC is a victory for the plaintiff in this action. However, even though the plaintiff will get discovery in relation to these claims, compensation is far from assured, and the state will likely invoke sovereign immunity at the summary judgment stage. Indeed, governmental liability claims are always particularly difficult to prove, and those who have been harmed as a result of the possible negligent conduct of a state actor should consider finding competent legal counsel before pursuing a claim. The Atlanta auto accident attorneys at the Simon Law Firm have represented numerous injured Georgia drivers and are experienced in handling claims against both governmental and non-governmental entities. If you’ve recently been injured in an auto accident and are curious about the legal options you may have, feel free to contact us to schedule a free case consultation.