City of Atlanta v. Mitcham

• Decision Date: 16 February 2015
• Docket Number: No. S14G0619.,S14G0619.
• Citation: 296 Ga. 576,769 S.E.2d 320
• Parties: CITY OF ATLANTA et al. v. MITCHAM.
• Court: Georgia Supreme Court

296 Ga. 576

769 S.E.2d 320

CITY OF ATLANTA et al.

v.MITCHAM.

No. S14G0619.

Supreme Court of Georgia.

Feb. 16, 2015.

Cathy Hampton, Laura Sauriol Burton, Atlanta, for appellants.

Charles Henry McAleer, Decatur, for appellee.

Joseph D. McGovern, Dubberly & McGovern, Glennville, Richard Keith Strickland, Paul Michael Scott, Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, LLP, Brunswick, amici curiae.

Opinion

THOMPSON, Chief Justice.

We granted a petition for writ of certiorari in this case to determine whether the Court of Appeals used the proper analysis when it determined that the provision of medical care by the City of Atlanta to inmates in its custody was a ministerial function for which the City of Atlanta's sovereign immunity had been waived. See City of Atlanta v. Mitcham, 325 Ga.App. 481, 751 S.E.2d 598 (2013). Because we find that the care of inmates in the custody of a municipal corporation is a governmental function for which sovereign immunity has not been waived, we reverse.

Appellee Barto Mitcham filed a negligence action against appellants, the City of Atlanta (the “City”) and George Turner, in his official capacity as the Chief of Police for the City of Atlanta Police Department, alleging that Mitcham was seriously injured as a result of appellants' failure to provide him necessary medical treatment while in their custody. Mitcham specifically alleged that after he was arrested by the City of Atlanta Police Department, he became ill because of low blood sugar associated with diabetes. He was taken to the hospital, and upon his discharge and release back into the custody of the City, Atlanta Police Department officers were informed of his diabetic condition and the need to monitor and regulate his insulin

levels. He alleged they failed to do so, causing him further illness and serious and permanent injuries.

Appellants answered the complaint and filed a joint motion to dismiss on sovereign immunity grounds. See OCGA § 9–11–12(b)(6). The trial court denied the motion, finding that Mitcham's claims were not barred by sovereign immunity because the provision of “medical attention and/or care for an inmate is a ministerial act which does not involve the exercise of discretion.” Relying primarily on its opinion in Cantrell v. Thurman, 231 Ga.App. 510, 499 S.E.2d 416 (1998), a case involving claims against a county sheriff and the constitutional waiver of the sovereign immunity of the state and its departments and agencies under Article I, Section II, Paragraph IX (d) of the Georgia Constitution, the Court of Appeals affirmed, holding that “the provision of medical care to inmates in the City's and Turner's custody was a ministerial act and, because it was a ministerial act, sovereign immunity was waived pursuant to OCGA § 36–33–1(b).”¹ We granted certiorari.

1. A motion to dismiss for failure to state a claim should not be granted unless the allegations of the complaint demonstrate to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support thereof. Anderson v. Flake, 267 Ga. 498, 501(2), 480 S.E.2d 10 (1997). Appellants moved to dismiss Mitcham's claims on the ground of sovereign immunity. Under Georgia law, municipal corporations are protected by sovereign immunity pursuant not to Article I of the Constitution but rather Article IX, Section II, Paragraph IX, unless that immunity is waived by the General Assembly. See Godfrey v. Georgia Interlocal Risk Mgmt. Agency, 290 Ga. 211, 214, 719 S.E.2d 412 (2011) (absent legislative scheme providing for specific waiver, there is no waiver of municipal sovereign immunity). See also City of Thomaston v. Bridges, 264 Ga. 4, 439 S.E.2d 906 (1994). With particular regard to municipal corporations, our General Assembly has enacted OCGA § 36–33–1 which reiterates that “it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability from damages.” OCGA § 36–33–1(a). The same statute, however, also provides for a narrow waiver of a municipal corporation's sovereign immunity, expressly providing in subsection (b) that “[m]unicipal corporations shall not be liable for failure to perform or for errors in performing, their legislative or judicial powers. For neglect to perform or for improper or unskillful performance of their ministerial duties, they shall be liable.”² OCGA § 36–33–1(b). This provision has for more than a century been interpreted to mean that municipal corporations are immune from liability for acts taken in performance of a governmental function but may be liable for the negligent performance of their ministerial duties. See Koehler v. Massell, 229 Ga. 359, 361–362(3), 191 S.E.2d 830 (1972) ; Mayor and Aldermen of Savannah v. Jones, 149 Ga. 139, 141–142, 99 S.E. 294 (1919) ; Wright v. City Council of Augusta, 78 Ga. 241, 243–244 (1886). The propriety of the trial court's ruling on appellants' motion to dismiss thus turns on whether appellants' failure to provide medical treatment to an inmate in the City's custody involved a governmental function.

2. Governmental functions traditionally have been defined as those of a purely public nature, intended for the benefit of the public at large, without pretense of private gain to the municipality. See Cornelisen v. City of Atlanta, 146 Ga. 416, 419, 91 S.E. 415 (1917). The exemption from liability for governmental functions “is placed upon the ground that the service is performed by the corporation in obedience to an act of the legislature, is one in which the corporation has no particular interest and from which it derives no special benefit in its corporate capacity.” Wright, supra, 78 Ga. at 243, quoting Dillon (2 Municipal Corp. § 976, 3rd ed.). Ministerial functions, in comparison, are recognized as those involving the “exercise of some private franchise, or some franchise conferred upon [the municipal corporation] by law which it may exercise for the private profit or convenience of the corporation or for the convenience of its citizens alone, in which the general public has no interest.”³ Love v. City of Atlanta, 95 Ga. 129, 131, 22 S.E. 29 (1894).

The exemption from liability for governmental functions set out in OCGA § 36–33–1(b) thus left in place “the common-law doctrine, frequently applied in this State before and since the adoption of the code, of non-liability for conduct of officers, agents and servants of municipal corporations in respect to duties devolving upon them in virtue of the sovereign or governmental functions of the municipality.” Brannan v. City of Brunswick, 49 Ga.App. 62, 174 S.E. 186 (1934). It reflects a municipal corporation's dual functions, performing in the exercise of its corporate functions two classes of service, governmental duties and private corporate, or ministerial, duties. Jones, supra, 149 Ga. at 141, 99 S.E. 294. See Purser v. Dodge County, 188 Ga. 250, 251, 3 S.E.2d 574 (1939) (recognizing that municipal corporations act in dual capacities, “exercising powers pertaining not only to their delegated sovereignty, but powers of ministerial or proprietary in character.”). As this Court has recognized with approval:

A municipal corporation has a dual character, the one public and the other private, and exercises correspondingly two-fold functions, the one governmental and legislative, and the other private and ministerial. In its public character, it acts as an agency of the State to enable it the better to govern that portion of its people residing within the municipality, and to this end there is granted to or imposed upon it by the charter of its creation powers and duties to be exercised and performed exclusively for public, governmental purposes. These powers are legislative and discretionary, and the municipality is exempt from liability for an injury resulting from the failure to exercise them or from their improper or negligent exercise. In its corporate and private character there are granted unto it privileges and powers to be exercised for its own private advantage, which are for public purposes in no other sense than that the public derives a common benefit from the proper discharge of the duties imposed or assumed in consideration of the privileges and powers conferred. This latter class of powers and duties are not discretionary, but ministerial and absolute; and, for an injury resulting from negligence in their exercise or performance, the municipality is liable in a civil action for damages, in the same manner as an individual or private corporation.

Mayor and Council of Dalton v. Wilson, 118 Ga. 100, 102, 44 S.E. 830 (1903), quoting Jones v. Williamsburg, 97 Va. 722, 723–724, 34 S.E. 883 (Va.1900).

This Court on occasion has acknowledged the difficulty in determining to which of the two classes a function belongs, the proper classification depending in each case on an interpretation of the powers and duties delegated to the corporation and the character of the function being performed. See Mayor and Council of Dalton, supra, 118 Ga. at 102–103, 44 S.E. 830, Love, supra, 95 Ga. at 131, 22 S.E. 29. Our courts, however, have had no difficulty concluding that the operation of a jail and the care and treatment of individuals in police custody are purely governmental functions related to the governmental duty to ensure public safety and maintain order for the benefit of all citizens. See Hurley v. City of Atlanta, 208 Ga. 457, 457–459, 67 S.E.2d 571 (1951) (dismissing writ of certiorari as improvidently granted while approving Court of Appeals' ruling that “keep and maintenance of the convict ... was a governmental function, for the negligent performance of which the city was not liable to him in damages”); Gray v. Mayor and City of Griffin, 111 Ga. 361, 363, 36 S.E. 792 (1900) (when city “maintains a prison wherein to confine offenders ... for safe-keeping until...