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McElmurray v. Augusta-Richmond County7/11/2005
er the instrumentality is easily or reasonably at hand, and particularly when it is still being " utilized." (Emphasis supplied.) It follows that where a truck is being used for mosquito eradication, damages resulting from the spraying of insecticide from that truck are injuries arising by reason of the "use" of that truck.
Id. at 645.
In Mitchell, as previously discussed, the injury occurred while the truck was being operated to spray for mosquitoes and resulted from the negligent operation of the mosquito-spraying truck. This case bears no relation to the facts in Mitchell. Moreover, under the reasoning in Mitchell set out above, the damages caused by the sludge could not be the result of the "use" of a motor vehicle. The injuries occurred long after the trucks were "easily or reasonably at hand," and certainly long after the trucks were still being "utilized." Id. As the opinion states, although the term "use" can still be contemplated at a time beyond actual physical contact, it should not be considered when the contact is "remote." Id.
The majority cites to no case other than Mitchell, and, as stated, that case does not support the conclusion. On the other hand, there are numerous cases which support a different result. See, e.g., Harry v. Glynn County, 269 Ga. 503 (501 SE2d 196) (1998) ( not "use" of ambulance even though part of diagnosis and treatment complained of occurred while appellant was being transported to the hospital); Saylor v. Troup County, 225 Ga. App. 489 (484 SE2d 298) (1997) (injury did not arise from use of van where appellant was injured by blade attached to bumper of a county-owned van).
Also helpful is City of Rossville v. Britton, 170 Ga. App. 1 (316 SE2d 16) (1984). In that case, a garbage truck placed a dumpster in position two days before it fell and injured a child. This Court held that the injury did not arise from the "use" of the garbage truck, stating that the term "use" relates to the vehicle itself and excludes acts that are only remotely connected with its maintenance, use, or operation. Id. at 3. The court determined that a construction that would find coverage for something done two days before the accident happened would "impart to it an artificial meaning at variance with the apparent intention of the parties." Id. See also Dolly Griffin & Associates v. Intl. Indem. Co., 220 Ga. App. 376 (469 SE2d 464) (1996) (injury resulting from collision with parked trailer that occurred 11 days after trailer was transported by insured tractor was too remote from and did not result from the use of the tractor).
Therefore, in light of the above, I find no support for the majority's conclusion that the claims at issue in this case are the result of county employees' negligent use of a motor vehicle. Thus, they are not covered by the county's insurance policy. Therefore, there has been no waiver of sovereign immunity.
I am authorized to state that Presiding Judge Johnson and Judge Mikell join in this dissent.
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