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McElmurray v. Augusta-Richmond County7/11/2005
when the tractor bumped Saylor, the van was inoperative, parked off the roadway while its engine was not engaged. Saylor was merely using the bumper of the van for placement of the vise.
In Harry, the plaintiff's wife died as a result of the alleged negligence of a paramedic who provided emergency aid for her in an ambulance while she was being transported to a hospital. Plaintiff sued the paramedic and the county who employed him, charging the paramedic with negligence in misdiagnosing the decedent's condition and in failing to use defibrillation. Plaintiff contended that the county had waived its sovereign immunity because the negligence of the paramedic had occurred while his wife was being transported in an ambulance. Our Supreme Court disagreed, holding that the allegedly negligent acts did not involve the use of the ambulance.
This case is controlled by Mitchell. There, the city was using a motor vehicle to spray a toxic chemical. The McElmurrays allege that the city was using motor vehicles to spread toxic waste. These facts are legally indistinguishable from those in Mitchell. The facts in Saylor and Harry are readily distinguishable. The plaintiff in Saylor was injured by a swing blade that he was sharpening on a vise that was attached to a parked van. Although the van was a motor vehicle, it was not being used as such at the time of the incident. In Harry, a paramedic was charged with negligent treatment. The alleged negligence occurred while the paramedic was in an ambulance, but was in no way connected to operation of the ambulance. In contrast, the allegation here is that motor vehicles were being used to spread the sludge on plaintiffs' lands. The trial court thus erred in dismissing the McElmurrays' tort claims on the ground that liability insurance for motor vehicle use would not be applicable.
3. The McElmurrays contend that the trial court erred in dismissing their claim for violation of the HSRA.
Pursuant to the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution, "the defense of sovereign immunity to tort liability . . . can only be waived pursuant to a `legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.' [Cit.]"
The Georgia HSRA declares it to be the public policy of this state "to require corrective action for releases of hazardous wastes, hazardous constituents, and hazardous substances . . . into the environment that may pose a threat to human health or the environment. . . ." To this end, the Act provides that whenever the director of the Environmental Protection Division of the Department of Natural Resources has reason to believe there has been a release of hazardous wastes or substances posing a danger to health or the environment, the director shall make a reasonable effort to identify each person contributing to the release and order such person to take corrective action if he does not agree to do so voluntarily. The Act makes each person contributing to the release "jointly, severally, and strictly liable to the State of Georgia for the reasonable costs of activities associated with the cleanup of environmental hazards." And during or following the undertaking of any corrective action, each such person may seek contribution from any other person who has contributed or is contributing to the release. Clearly, this Act provides an administrative environmental-cleanup procedure and does not expressly waive sovereign immunity for any allegedly responsible governmental entity. Therefore, the trial court did not err in dismissing the McElmurrays' claim under the HSRA.
4. The McElmurrays contend that the trial court erred in awarding summary j
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