City of Atlanta v. Mitcham

• Decision Date: 19 May 2014
• Docket Number: No. A13A0912.,A13A0912.
• Citation: 751 S.E.2d 598,325 Ga.App. 481
• Parties: CITY OF ATLANTA et al. v. MITCHAM.
• Court: Georgia Court of Appeals

325 Ga.App. 481

751 S.E.2d 598

CITY OF ATLANTA et al.

v.MITCHAM.

No. A13A0912.

Court of Appeals of Georgia.

Nov. 20, 2013.

Reconsideration Denied Dec. 16, 2013.

Certiorari Granted May 19, 2014.

Weissman, Nowack, Curry & Wilco, Jin T. Kim, Laura S. Burton, for appellants.

Shaun R. Cade, Decatur, for appellee.

PHIPPS, Chief Judge.

Barto Mitcham filed a negligence action against the City of Atlanta (“City”) and George Turner (in Turner's official capacity as “Police Chief for City of Atlanta”), alleging that Mitcham was injured as a result of the City's and Turner's failure to provide the medical care he needed while he was in their custody. The City and Turner appeal from the trial court's denial of their motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Finding no error, we affirm.

A motion to dismiss brought under OCGA § 9–11–12(b)(6) for failure to state a claim upon which relief can be granted should be granted only when the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.¹

“We review the denial of a motion to dismiss de novo.” ²

In his complaint, Mitcham pertinently alleged the following. In October 2010, Mitcham was in the custody of the Atlanta Police Department, having been arrested for “hit and run.” While in custody, Mitcham became ill and was taken to a hospital in connection with “low blood sugar associated with diabetes.” Upon Mitcham's discharge from the hospital, the City and Turner were notified of the need to monitor Mitcham's blood sugar levels and instructed to provide him with insulin on a regular schedule. The City and Turner failed to monitor and properly regulate Mitcham's insulin levels as instructed, and Mitcham became ill and received serious and permanent injuries as a result of the City's and Turner's negligence.

Citing OCGA § 36–33–1(b),³ the City and Turner moved to dismiss the action for failure to state a claim, asserting that the City is entitled to sovereign immunity because it was “engaged in the performance of [a] governmental function at the time [Mitcham] allegedly suffered his injuries”; ⁴ and that Turner is entitled to sovereign or governmental immunity because he was sued in his official capacity, and the claim against him is thus equivalent to the claim against the City.⁵

Mitcham countered that the provision of adequate medical attention to inmates under the City's and Turner's custody and control was, instead, a ministerial act; thus, the City and Turner are not entitled to sovereign immunity. The trial court agreed, and denied the motion to dismiss.

“The trial court's ruling on the motion to dismiss on sovereign immunity grounds is reviewed de novo, while factual findings are sustained if there is evidence supporting them.” ⁶

Under OCGA § 36–33–1(b): “Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.” In other words “[m]unicipalities are not liable for negligence in the performance of [their] governmental, as opposed to their ministerial[,] functions,” but “sovereign immunity of municipal corporations is waived when [the municipal corporations] negligently perform ministerial duties.” ⁷ A governmental function has been characterized as one which involves “the exercise of deliberate judgment and wide discretion.” ⁸ “A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” ⁹

A government unit's function of providing adequate medical care for inmates under its custody has been held to be ministerial in nature. In Cantrell v. Thurman,¹⁰ this court concluded:

Providing adequate medical attention for inmates under defendants' custody and control is a ministerial act by the sheriff and his or her deputies and does not involve the exercise of discretion to provide medical care, because medical care is a fundamental right and is not discretionary ...; thus, such act is not subject to either sovereign immunity or official immunity.¹¹

Although Cantrell involved a sheriff's duty to furnish medical aid to persons confined in the jail,¹² the responsibility to furnish needed medical attention to an inmate in custody is not limited to sheriffs; “it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to ... furnish[ ] him ... any needed medical and hospital attention.” ¹³ Notably, as the Georgia Supreme Court recognized in Murphy v. Bajjani,¹⁴

[t]he United States Supreme Court has ruled that “the [U.S.] Constitution imposes upon the State affirmative duties of care and protection [including medical care] with respect to particular individuals ... when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself”.¹⁵

Thus, 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).

The City and Turner assert that Cantrell is inapposite because that case involved a federal claim brought pursuant to 42 USC § 1983, while the instant case does not. The assertion is without merit, because Cantrell involved not only a federal claim, but negligence claims based on state law; the court's discussion of the provision of adequate medical care in that case concerned state law.¹⁶

The City and Turner also contend that the duty to provide medical care at issue in this case was not ministerial because “[m]inisterial or proprietary functions are performed in the municipality's private character and for public business purposes,” ¹⁷ that “the term ministerial means proprietary,” and that “what is significant is whether the character of the enterprise is ‘primarily a source of revenue,’ rather than being used primarily for the benefit of the public.” But our courts do not define “ministerial” so narrowly; indeed, we do not always employ a revenue-based analysis in determining whether an act is ministerial.¹⁸ Notably, the authorities upon which the City and Turner rely as support for their revenue-based analysis did not involve the provision of medical attention to inmates under the custody and control of a governmental entity.¹⁹

The trial court did not err by denying the City's and Turner's motion to dismiss for failure to state a claim based on sovereign immunity.²⁰

Judgment affirmed.

ELLINGTON, P.J., concurs.

BRANCH, J., concurs specially.

BRANCH, Judge, concurring specially.

Although I agree with the majority that the trial court correctly denied the motion to dismiss at this stage of the proceedings, I concur in the judgment only because I disagree with the reasoning of the majority opinion.

As the Supreme Court of Georgia has recently reiterated, municipalities are protected by sovereign immunity unless that immunity is specifically waived by statute:

Sovereign immunity applies to municipalities, unless the General assembly waives it by law. Ga. Const. of 1983, Art. IX, Sec. II, Para. IX. Waiver of a municipality's sovereign immunity in tort law is narrow, and only the General Assembly has the authority to enact a law that specifically provides for such a waiver. Any waiver of sovereign immunity is solely a matter of legislative grace. There is no authority for a waiver of sovereign immunity beyond the legislative scheme.

(Citations omitted.) Owens v. City of Greenville, 290 Ga. 557, 559–560 (3), 722 S.E.2d 755 (2012), quoting Godfrey v. Ga. Interlocal Risk Mgmt. Agency, 290 Ga. 211, 214, 719 S.E.2d 412 (2011).¹OCGA § 36–33–1(b) includes such a waiver as to municipalities, but it is limited:

Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable.

This Code section has been consistently interpreted to mean that “[a] municipality is immune from liability for the negligent performance of its governmental duties, but may be held liable for negligence in the performance of its ministerial duties.” (Citations omitted.) Sinkfield v. Pike, 201 Ga.App. 652, 653, 411 S.E.2d 889 (1991); City of Savannah v. Jones, 149 Ga. 139 (1), 99 S.E. 294 (1919) (same).

The question here is whether providing medical services to a detainee is a governmental duty or a ministerial duty of the city. It has been explained that “[a] municipal corporation in the exercise of its corporate functions performs two classes of service: (1) Governmental duties; and (2) private, corporate, or ministerial, duties.” City of Savannah v. Jones, 149 Ga. 139, 99 S.E. 294 (1919). An earlier Supreme Court case provides a discussion of the difference between the two classes of service.²

It has been held that “[t]he operation of a police department, including the degree of training and supervision to be provided its officers, is a discretionary governmental function of the municipality as opposed to a ministerial, proprietary, or administratively routine function.” (Citations omitted.) McDay v. City of Atlanta, 204 Ga.App. 621 (1), 420 S.E.2d 75 (1992). But, as pointed out by the majority, in a case involving counties (as opposed to municipalities), it has been held that providing medical care to persons in governmental custody is a ministerial act. See, e.g., Cantrell v. Thurman, 231 Ga.App. 510, 499 S.E.2d 416 (1998) (the...