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Currid v. DeKalb State Court Probation Dep't7/12/2005
ceeded 10 miles per hour on a busy roadway. Appellants have shown facts sufficient to raise a jury question as to gross negligence on the part of DeKalb County. On motion for summary judgment, we cannot resolve the facts; a jury must decide whether this evidence supports a finding of gross negligence.
Additionally, the trial court granted summary judgment to DeKalb County on the basis of the waiver Currid signed. The trial court held that this waiver barred Appellants' claims against Carter and DeKalb County, except to the extent of the county's automobile liability insurance. The waiver provides, in pertinent part:
I will assume liability for any bodily or personal injury received as a result of performing this community service. I will not institute any proceedings against [any court approved agency, its employees, agents, officers, and supervisors] . . . Probation Officials, or any party associated with the community service . . . because of any injury arising out of this community service or because of any injury sustained while going to or from any location where such community service is or is to be performed.
In Turner v. Walker County, we held that an almost identical waiver would protect a county and its employee from liability in a wrongful death action, unless willful and wanton misconduct was shown. Appellants argue that there was sufficient evidence of gross negligence, recklessness or willful misconduct to create a jury issue on the applicability of the waiver to their claims. As discussed herein, genuine issues of material fact exist as to whether DeKalb County's actions constitute willful misconduct, and the trial court thus could not grant summary judgment to DeKalb County on this basis, either. We therefore reverse the trial court's grant of summary judgment to DeKalb County.
(b) While Appellants have described the responsibilities of the DOC under the community service program, they have not identified facts which demonstrate that the DOC violated its responsibilities, or analyzed how the law would apply to the relevant facts. Thus their enumeration of error with regard to the DOC is unsupported and deemed abandoned.
(c) Appellants allege that genuine issues of material fact exist as to whether Gabriel and Carter were grossly negligent, reckless or committed willful misconduct in assigning Currid to a community service program and supervising him. Appellants allege that Gabriel and Carter did not ensure that the agencies where probationers were performing community service had adequate safety training for the probationers. The limited evidence cited by Appellants, however, does not rise to the level of gross negligence, recklessness, or willful misconduct. Gabriel and Carter are thus entitled to summary judgment as to all claims against them.
Appellants also contend that Gabriel and Carter are not entitled to official immunity because, even if there is no evidence of gross negligence, there is evidence of ordinary negligence in the performance of their duties as community service coordinators. We need not reach this issue, however, because even if Gabriel and Carter were not entitled to official immunity due to ordinary negligence, they would still be entitled to immunity under the Community Service Act and the waiver executed by Currid.
Judgment affirmed in part, reversed in part. Johnson, P. J., and Barnes, J., concur.
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