Odum v. Harn

829 S.E.2d 818
CourtCourt of Appeals of Georgia
DecidedJune 19, 2019
DocketA18A0394
StatusPublished
Cited by4 cases

This text of 829 S.E.2d 818 (Odum v. Harn) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Odum v. Harn, 829 S.E.2d 818 (Ga. Ct. App. 2019).

Opinion

Goss, Judge.

This is the second appearance of this case before this Court. Defendant Cynthia Harn released a five-year-old child from the school bus Harn was driving, shortly after which the child was killed by a driver who ignored the bus's extended stop arm and flashing lights. In Odum v. Harn , 344 Ga. App. 488, 811 S.E.2d 19 (2018), we affirmed the trial court's grant of summary judgment to Harn in plaintiffs Keisha Odum and Michael Mutcherson's wrongful death action on the ground that Harn was entitled to official immunity. Id. at 489, 811 S.E.2d 19. The Supreme Court of Georgia granted plaintiffs' petition for certiorari, vacated our previous opinion, and remanded the case to this Court for reconsideration in light of the Supreme Court's decision in Barnett v. Caldwell , 302 Ga. 845, 809 S.E.2d 813 (2018). On remand to this Court, plaintiffs assert that because Harn's training manual required her to keep students on the bus until all traffic had stopped, the trial court erred when it granted *819summary judgment to Harn. After reexamining both the law and the record, we again affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.

(Emphasis omitted.) Lau's Corp. v. Haskins , 261 Ga. 491, 491, 405 S.E.2d 474 (1991).

Thus viewed in plaintiffs' favor, the record shows that on February 7, 2013, the child was a passenger on a Bryan County school bus driven by Harn, a driver with over 15 years experience, when Harn stopped the bus across the street from the child's house, activating the vehicle's red flashing lights, stop arm, and crossing gate. The child was required to cross a lane containing oncoming traffic in order to reach his mother, who was waiting for him. The District's training manual, which was formulated by the Georgia Department of Education, provided in relevant part that "[s]tudents should not be allowed off the bus until all traffic has stopped" and that drivers should "[t]each the students that [the driver's] signal for danger after they are off the bus is blowing the horn." Drivers were also instructed that they should "[c]ontinuously use[ ] both direct vision and mirrors to identify any moving traffic from both the front and from behind." Shortly before the accident, Harn had attended a training session at which these and other guidelines, including having a child pause on the bottom step of the bus before disembarking, were reviewed.

Plaintiffs retained Scott Short, a collision reconstruction expert, who testified to his opinion that at the time Harn was heard on the bus's video/audiotape recording system saying "See you tomorrow" to the child, the approaching truck was approximately 825 feet away from the bus, and that when the child stepped down to the last step above the street, the truck was approximately 534 feet away. Harn testified that she looked for traffic as she released the child but did not see any. Harn also testified that although the child stopped before crossing the yellow line in the middle of the road, he did not look back at her for permission to cross that line, which would have been by means of a hand signal, because he had seen his mother waiting for him. Harn sounded her horn as soon as she saw the oncoming truck. However, the truck then struck the child, resulting in his death.

The trial court granted summary judgment to Harn in her individual capacity and entered judgment in her favor.1 After this Court affirmed the trial court's judgment, the Supreme Court granted certiorari and remanded the case to this Court "for reconsideration in light of Barnett v. Caldwell , 302 Ga. 845, 851, 809 S.E.2d 813 (2018)." On remand to this Court, Odum now argues that the trial court erred when it granted summary judgment to Harn because her duty to keep students on the bus until all traffic had stopped was ministerial and absolute. We disagree.

[I]in cases like this one where there is no evidence of malice or intent to injure, the determination of whether official immunity bars the suit against the defendant turns on the issue of whether the defendant's actions were discretionary or ministerial. We have defined a ministerial act as "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." Murphy v. Bajjani , 282 Ga. 197, 199 [ (1) ], 647 S.E.2d 54 (2007 ). A discretionary act, on the other hand, "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." Id.

*820Barnett , 302 Ga. at 848 (II), 809 S.E.2d 813. As our Supreme Court also noted in Barnett

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Bluebook (online)
829 S.E.2d 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odum-v-harn-gactapp-2019.