Austin v. Clark

¶1concurring.

¶2I concur fully in the Court’s opinion, because as the Court says, Austin’s complaint alleging that her injuries were caused by the individual defendants’ negligent performance of ministerial duties satisfies the minimal requirements of notice pleading as set forth in our case law, allowing this lawsuit to survive a motion to dismiss based on official immunity and to proceed into discovery. It is conceivable, as the Court explains, that the discovery process will identify government policies imposing clear, specific, and non-discretionary duties on the defendants to inspect, maintain, and repair the sidewalk and road at Peach County High School where Austin was injured. But that seems very unlikely, particularly given the executive and managerial positions of the public officials whom Austin chose to sue — officials who typically have the discretion to establish policies for lower-level employees to implement ministerially, if such policies exist at all. As a result, this case is almost certain to end with summary judgment for the defendants based on official immunity, as occurred in all the cases cited by the Court of Appeals — if the case is litigated that far.

¶3As the defendants point out, however, if this case proceeds to full discovery, including medical experts on the issue of Austin’s damages, the litigation expenses would likely make it economically rational for the defendants to pay a significant sum to settle with Austin, notwithstanding their strong likelihood of ultimately prevailing in the case due to official immunity. The defendants urge this Court to apply the pleading rules more strictly in this context to avoid such an unjust result.

¶4There appears to be a preferable approach, however, which avoids varying from our traditional notice pleading standard in cases like this. The trial court can exercise its broad discretion to enter protective orders governing discovery, see OCGA § 9-11-26 (c),3 4to control the sequence and timing of discovery, see OCGA § 9-11-26 *777(d),4 and to establish pretrial procedure, see OCGA § 9-11-16 (a) (5),5 to focus discovery initially on the issue of whether any applicable ministerial duties existed. See generally Wayne M. Purdom, Ga. Civil Discovery §§ 4.4 (discussing sequencing of discovery), 4.11 (discussing pretrial and scheduling orders) (2013). If this initial and limited stage of discovery produces the likely result — that no such ministerial duty exists — then the defendants could move for summary judgment to end the case. If Austin does find evidence of such a duty, more extensive and expensive discovery into the issues of breach of the duty, causation, and damages could proceed and would be warranted.

¶5By carefully utilizing their authority to manage discovery and pretrial practice, trial courts should be able to “secure the just, speedy, and inexpensive determination” of this and similar cases involving official immunity. OCGA § 9-11-1. See Crawford-El v. Brit-ton, 523 U. S. 574, 593 & n.14, 597-601 (118 SCt 1584,140 LE2d 759) (1998) (discussing various ways in which trial judges should exercise their discretion to protect the substance of the qualified immunity defense in federal civil rights and “constitutional tort” cases by protecting public officials from unnecessary and burdensome discovery or trial proceedings, including by tailoring and sequencing discovery). If this approach proves insufficient to protect public funds and public officials from the costs and distractions of lawsuits that have no plausible merit, then the General Assembly may consider whether alteration of the traditional notice pleading standard for such cases would be appropriate. See id. at 595-597. Compare Ashcroft v. Iqbal, 556 U. S. 662, 680-683 (129 SCt 1937, 173 LE2d 868) (2009).

¶6I am authorized to state that Justice Blackwell joins in this concurrence.