Crosby v. Johnson

• Decision Date: 12 November 2015
• Docket Number: No. A15A1095.,A15A1095.
• Citation: 334 Ga.App. 417,779 S.E.2d 446
• Parties: CROSBY et al. v. JOHNSON et al.
• Court: Georgia Court of Appeals

334 Ga.App. 417

779 S.E.2d 446

CROSBY et al.

v.JOHNSON et al.

No. A15A1095.

Court of Appeals of Georgia.

Nov. 12, 2015.

Certiorari Denied March 7, 2016.

Emily Rose Hancock, Richard Keith Strickland, Brunswick, for Appellant.

Roy Jerome Boyd Jr., Brunswick, Jack J. Helms Jr., Homerville, Daniel C. Hoffman, Valdosta, William Floyd Holbert, Atlanta, for Appellee.

DOYLE, Chief Judge.

Roy Crosby, the Coroner of Bacon County, appeals the denial of his motion to dismiss a lawsuit filed against him in his individual and official capacities by Johnny Johnson, personally and as administrator of the estate of Dewey Johnson (deceased); Frances Johnson; Candace Medders; Jennifer Johnson; Johnny Johnson, Jr.; Roy Johnson; Theresa Johnson; and Cindy Thompson, as parent and guardian of Dewey Johnson, Jr., and Kamie Deanna Johnson. Crosby contends that the trial court erred by ruling that (1) Crosby is a county official instead of a state official, (2) Crosby is not entitled to sovereign immunity, and (3) Crosby is not entitled to official immunity because his allegedly tortuous conduct was ministerial. For the reasons that follow, we reverse.

"On appeal, we review a trial court's decision to grant or deny a motion to dismiss de novo. And in reviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant's favor."¹

The plaintiffs' complaint as amended alleges that at approximately 5:30 a.m. on September 8, 2007, Dewey Johnson died. His body was discovered at approximately 6:12 p.m. on the same day, and the Georgia Bureau of Investigation responded to the scene to investigate the circumstances of death. Shortly after midnight, Crosby took custody of the body in his capacity as Coroner, but instead of taking the body to a refrigerated hospital morgue, Crosby transported it to a shed behind a private funeral home he operated, Crosby Funeral Homes, Inc.

The complaint further alleges that the plaintiffs contracted with Crosby to provide funeral and burial services, but by the time the family attempted to hold an open casket viewing on September 12, four days later, the body had decomposed to the point of being in an inappropriate condition for viewing. Over the family's objection, Crosby did not allow them to view the body, and the funeral and burial were conducted with a closed casket.

Based on these events, the plaintiffs sued Bacon County, Crosby Funeral Homes, and Crosby, naming him in his individual capacity and his official capacity as Coroner, alleging claims for breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraudulent conduct, negligence and negligence per se, willful interference with remains, negligent interference with remains, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent performance of a ministerial duty.

Pursuant to OCGA § 9–11–12(b)(6), Crosby and Bacon County moved to dismiss the claims against them to the extent they derived from Crosby's acts as Coroner for the County. The motion noted that Crosby had also been sued with respect to his non-governmental position at the funeral home, and it did not seek dismissal as to claims against Crosby in that capacity. Following a hearing, the trial court denied the motion as to Crosby, noting that the parties had agreed that Bacon County was not properly subject to suit, apparently on sovereign immunity grounds. Crosby now appeals.

1. Crosby contends that the trial court erred by characterizing him as a county official, instead of a state officer who would enjoy protection from liability under the Georgia Tort Claim Act ("GTCA"). We disagree.

The GTCA provides that "[a] state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor."² The GTCA defines "state officer or employee," in relevant part, as "an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity."³ There is a dearth of case law on whether coroners fall within this category, so we turn to the statutory scheme governing coroners.

OCGA § 45–16–1 provides, in relevant part:

(a) Coroners are elected, commissioned, and removed as are clerks of the superior courts; and coroners shall hold their offices for four years.

(b) (1) No person shall be eligible to offer for election to or to hold the office of coroner unless he or she:

...

(B) Is a resident of the county in which he or she seeks the office of coroner for at least two years prior to his or her qualifying for the election to the office and remains a resident of such county during his or her term of office[.]

...

(c) Notwithstanding any other provision of law, any person holding office as the mayor of a municipality with a population of 5,000 or less according to the United States decennial census of 1980 or any future such census is specifically authorized to serve simultaneously as coroner; and any person holding the office of coroner is specifically authorized to serve simultaneously as mayor of a municipality with a population of 5,000 or less according to the United States decennial census of 1980 or any future such census.

Thus, on the face of this Code section, coroners are subject to county elections, not state-wide, and appear to be closely tied to their counties as opposed to the State.

This view is supported by other portions of the Code, which provide that coroners may in some circumstances act in the place of the county sheriff,⁴ a post which this Court has held to be a county official and not a state officer.⁵ Also, the Code requires the "coroner of each county" to appoint a deputy coroner "for each county."⁶ The county governing authority (not the State) is authorized to approve the appointment of additional deputy coroners for the county.⁷ The Code requires a county coroner's salary to be paid "from the funds of the coroner's county,"⁸ and authorizes county governing authorities to provide for contingent expense allowances "from county funds."⁹ The General Assembly may, through the passage of a local law, abolish the office of coroner and create the office of medical examiner for a particular county, but in such a case, the new medical examiner

shall be appointed by the governing authority of that county, shall serve at the pleasure of that governing authority, shall be compensated in an amount determined by that governing authority, and all expenses of the office of such medical examiner shall, subject to county budgetary limitations, be paid from the general funds of that county.¹⁰

Based on this statutory scheme, we conclude that for purposes of immunity under the GTCA, coroners are county officials, not state officers.¹¹ Accordingly, this enumeration presents no basis for reversal.

2. Crosby next contends that the trial court erred by ruling that he is not entitled to assert a sovereign immunity defense to the extent he was sued in his official capacity. We agree.

The complaint names Crosby as a defendant in his official capacity and in his individual capacity, and it alleges that Crosby committed negligent acts while he acted as Coroner (choosing to transport the body to a place other than a refrigerated hospital morgue) and while he acted in a non-governmental function on behalf of the funeral home (allegedly allowing the body to unduly decompose prior to burial). The claims related to the non-governmental funeral home operations were not subject to the motion to dismiss and are still pending. Thus, the claims against Crosby for his conduct as Coroner are the sole focus of this appeal.

With respect to the motion to dismiss filed by Crosby and the County, the trial court's order states that "[t]he parties have indicated that they are in agreement that Bacon County is not a proper party to this lawsuit," apparently on the ground that the County is entitled to sovereign immunity. Nevertheless, the court's order goes on to hold that "Defendant Crosby's Motion to Dismiss, in his official capacity, is hereby DENIED."

This result conflates the concepts of a suit against Crosby in his official and individual capacities. When a claim is filed against a county official in his official capacity, the claim is, "in essence, ... against [the] County[,] and [the official] may raise any defense available to the county, including sovereign immunity."¹² Accordingly, with respect to the claims against Crosby in his official capacity, they are essentially against the County, which is entitled to sovereign immunity.¹³ As noted by the trial court, the plaintiffs do not argue that the County has waived its immunity, nor do they, on appeal, identify any statutory waiver of immunity on the part of the County. It is well settled that "[s]overeign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege and the waiver must be established by the party seeking to benefit from the waiver."¹⁴ Accordingly, the trial court erred to the extent that it denied the motion to dismiss the claims against Crosby in his official capacity, i.e., against the County.

3. Crosby also challenges the trial court's ruling that he, in his individual capacity, is not entitled to official immunity. We agree.

When a county official is sued in his individual capacity, the doctrine of official immunity (as opposed to sovereign immunity) is implicated.¹⁵

The doctrine of official immunity, developed primarily in Georgia through case law, provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority. Furthermore, a

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