Currid v. DeKalb State Court Prob. Dept.

• Court: Georgia Supreme Court
• Writing for the Court: Melton
• Citation: Currid v. DeKalb State Court Prob. Dept., 674 S.E.2d 894, 285 Ga. 184 (Ga. 2009)
• Decision Date: 23 March 2009
• Docket Number: No. S08G0322.,S08G0322.
• Parties: CURRID et al. v. DeKALB STATE COURT PROBATION DEPARTMENT et al.

285 Ga. 184

674 S.E.2d 894

CURRID et al. v. DeKALB STATE COURT PROBATION DEPARTMENT et al.

No. S08G0322.

Supreme Court of Georgia.

March 23, 2009.

Charles A. Mathis Jr., Martin & Jones, Clinton W. Sitton, Samuel L. Starks, Atlanta, for appellants.

Constangy, Brooks & Smith, Wade W. Mitchell, R. Carl Cannon, Jena S. Tarabula, Atlanta, for appellees.

MELTON, Justice.

We granted certiorari in this case to determine whether the Court of Appeals erred in concluding that the language of the Community Service Act, OCGA § 42-8-71(d) et seq., did not create a statutory waiver of a county's sovereign immunity. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). For the reasons that follow, we affirm the judgment of the Court of Appeals.

The record reveals that, while performing court-ordered community service work in connection with a DUI plea deal, Vincent Currid ("Decedent") fell off of the rear catwalk of a DeKalb County sanitation truck and sustained several injuries, including a serious head injury. He died several weeks later while still hospitalized for his injuries. On December 10, 2001, Decedent's brother, as administrator of Decedent's estate, and Decedent's father (hereinafter collectively "Decedent's Estate") sued the DeKalb State Court Probation Department and the DeKalb County Public Works Department,¹ various individuals, and the Georgia Department of Corrections, alleging that DeKalb proximately caused Decedent's wrongful death. On September 12, 2003, the trial court granted DeKalb's motion for summary judgment, except to the extent that the county waived immunity by purchasing automobile liability insurance pursuant to OCGA § 33-24-51.² As part of its ruling, the trial court also concluded that DeKalb was entitled to protection under OCGA § 42-8-71, the Community Service Act,³ because the record was devoid of any evidence of gross negligence regarding Decedent's community service assignment. The court also ruled that a waiver signed by Decedent entitled DeKalb to summary judgment. Decedent's Estate appealed, and the Court of Appeals reversed, finding that a jury question existed as to whether DeKalb's actions in assigning Decedent to the sanitation truck constituted gross negligence, which would defeat the protections afforded DeKalb under the Community Service Act and the waiver that Decedent signed. Currid v. DeKalb State Court Probation Dept., 274 Ga.App. 704, 618 S.E.2d 621 (2005) (hereinafter "Currid I").

Following remand, DeKalb filed a Motion to Limit Damages, arguing that sovereign immunity and OCGA § 33-24-51 barred Decedent's Estate from recovering damages in excess of the limits of DeKalb's motor vehicle liability insurance. The trial court denied this motion and allowed the trial to proceed without any limitation on damages.⁴ On August 21, 2006, the jury returned a verdict in favor of Decedent's Estate in the amount of $5,110,391. DeKalb appealed, and the Court of Appeals of Georgia reversed, holding that sovereign immunity barred the Estate's claims against DeKalb County, because the language of the Community Service Act did not create a statutory waiver of DeKalb's sovereign immunity. DeKalb State Court Probation Dept. v. Currid, 287 Ga.App. 649, 653 S.E.2d 90 (2007) (hereinafter "Currid II").⁵

"The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). See also Gilbert v. Richardson, 264 Ga. 744, 748(3), 452 S.E.2d 476 (1994) ("we hold that sovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver") (emphasis supplied); OCGA § 33-24-51. In this regard, "[i]mplied waivers of governmental immunity should not be favored." (Citation omitted.) City of Atlanta v. Gilmere, 252 Ga. 406, 409, 314 S.E.2d 204 (1984); cf. College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 682(IV), 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) ( 34;[W]aivers [of sovereign immunity] are not [to be] implied" in the context of State allowing itself to be sued in federal court).

As stated previously, OCGA § 42-8-71(d) provides that

[n]o agency or community service officer shall be liable at law as a result of any of his acts performed while participating in a community service program. This limitation of liability does not apply to actions on the part of any agency or community service officer which constitute gross negligence, recklessness, or willful misconduct.

In construing this statute,

we apply the fundamental rules of statutory construction that require us to construe [the] statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.

(Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191, 587 S.E.2d 24 (2003). Here, the plain language of the statute creates a limitation of liability for any "agency or community service officer . . . participating in a community service program," and goes on to clarify that "[t]his limitation of liability [i.e. the specific limitation of liability created by the statute itself] does not apply to actions on the part of any agency or community service officer which constitute gross negligence, recklessness, or willful misconduct." Nowhere in the statute has the Legislature "specifically provide[d] that sovereign immunity [has been] waived and the extent of such waiver" (Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e)), and, without specific statutory language providing for (1) a waiver of sovereign immunity and (2) the extent of such waiver, no waiver can be shown. Gilbert, supra, 264 Ga. at 748(3), 452 S.E.2d 476; City of Atlanta, supra, 252 Ga. at 409, 314 S.E.2d 204 ("Implied waivers of governmental immunity should not be favored") (citation omitted).

The plain language of the Community Service Act fails both prongs of the constitutional test, as it provides for neither a specific waiver of sovereign immunity nor the extent of any waiver. The statute indicates only that the limitation of liability contained therein protects those entities participating in community service programs that otherwise would not be immune from suit, not that those entities that are already immune from suit have waived their sovereign immunity when participating in a community service program. See Norton v. Cobb, 284 Ga.App. 303(1), 643 S.E.2d 803 (2007) (trial court erred in finding implicit waiver of county's sovereign immunity in the Recreational Property Act, OCGA § 51-3-20 et seq., where there was no explicit language in the Act that waived sovereign immunity); Hendon v. DeKalb County, 203 Ga.App. 750, 756(2)(c), 417 S.E.2d 705 (1992) (county could not be held vicariously liable for the wanton and wilful misconduct or bad faith of its officers and employees under OCGA § 46-5-131(a) (providing emergency "911" telephone services) where statute, on its face, did not specifically provide that sovereign immunity of the county was waived and the extent of the waiver). For example, under the Community Service Act, an "agency" can be "any private or public agency or organization approved by the court to participate in a community service program." (Emphasis supplied.) OCGA § 42-8-70(a)(1). Private agencies that are approved to participate in community service programs would not be entitled to sovereign immunity, but they would be entitled to the protection afforded to them by the limitation of liability provision specifically contained in the Community Service Act. See OCGA § 42-8-71(d). Similarly, State entities that would otherwise enjoy sovereign immunity, but have specifically waived such immunity pursuant to the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.), would still be entitled to the protection afforded by the Community Service Act while participating in a community service program. The waiver of sovereign immunity contained in the Georgia Tort Claims Act does not apply to counties. OCGA § 50-21-22(5). Because the Community Service Act does not contain language providing for an express waiver of a county's sovereign immunity and the extent...