Department of Human Resources v. Coley

• Citation: 544 S.E.2d 165,247 Ga. App. 392
• Decision Date: 01 December 2000
• Docket Number: No. A00A1491.,A00A1491.
• Parties: DEPARTMENT OF HUMAN RESOURCES v. COLEY et al.
• Court: United States Court of Appeals (Georgia)

544 S.E.2d 165

247 Ga. App. 392

DEPARTMENT OF HUMAN RESOURCES v. COLEY et al.

No. A00A1491.

Court of Appeals of Georgia.

December 1, 2000.

Reconsideration Dismissed December 15, 2000.

Certiorari Denied May 7, 2001.

Thurbert E. Baker, Atty. Gen., John C. Jones, Senior Asst. Atty. Gen., Gray, Hedrick & Edenfield, Bruce M. Edenfield, Robert L. Bunner, Atlanta, for appellant.

Lawson & Sippel, John A. Lawson, Cole & Cox, Charles E. Cox, Jr., Jason K. Priebe, Macon, for appellees. RUFFIN, Judge.

While he was a patient at Central State Hospital, an institution operated by the Georgia Department of Human Resources (DHR), Ronnie Dudley was allegedly strangled to death by another patient, Richard Hailey. Dudley's sister, Patricia Coley, individually and as executrix of her brother's estate, sued DHR, claiming that it violated a duty to protect Dudley from harm. In particular, Coley alleged that DHR negligently placed Dudley in a room with Hailey, who had made threats to kill someone in order to be transferred to a different building for the criminally insane. DHR filed a motion to dismiss, arguing that Coley's claims were barred by sovereign immunity. Specifically, DHR asserted that such claims were barred by OCGA § 50-21-24(7), which provides that "[t]he state shall have no liability for losses resulting from ... [a]ssault, battery," or certain other enumerated torts. The trial court denied the motion to dismiss. We granted DHR's application for interlocutory appeal, and reverse the trial court's ruling.

1. The starting point for any consideration of sovereign immunity is, of course, the Georgia Constitution. Art. I, Sec. II, Par. IX(e) of the constitution states that

[e]xcept as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. 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.

Thus, as a matter of constitutional law, with respect to tort claims, the state and its departments and agencies are entitled to sovereign immunity unless such immunity is specifically waived by a statute setting forth the extent of the waiver.

The state's waiver of sovereign immunity for tort claims is set forth in the Georgia Tort Claims Act (GTCA), OCGA § 50-21-20 et seq., which states that it "constitutes the exclusive remedy for any tort committed by a state officer or employee."¹ OCGA § 50-21-23(a) provides that

[t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state's sovereign immunity is waived subject to all exceptions and limitations set forth in this article.²

Many of these "exceptions and limitations" are set forth in OCGA § 50-21-24, which lists numerous circumstances in which the state does not waive sovereign immunity. The exception relevant in this case is contained in subsection (7), which provides that "[t]he state shall have no liability for losses resulting from ... [a]ssault, battery," or other enumerated torts. Thus, where a loss results from assault or battery, there is no waiver of sovereign immunity, even though "a private individual or entity would be liable under like circumstances." We have uniformly held that OCGA § 50-21-24(7) applies not merely when a state officer or employee commits one of the enumerated torts, but whenever the underlying loss results from such tort. In Dept. of Human Resources v. Hutchinson,³ we noted that

"[l]oss" is extensively defined in OCGA § 50-21-22(3) and includes "any ... element of actual damages recoverable in actions for negligence." The focus of the exceptions to liability in OCGA § 50-21-24(7) is not on the government action taken, but upon the act that produces the loss.

We noted that other subsections of OCGA § 50-21-24 specifically limited their application to acts taken by "a state officer or employee," while subsection (7) contained no such limitation.⁴ Thus, we held that "the exception to the waiver of immunity covers any and all losses resulting from the torts enumerated in OCGA § 50-21-24(7), regardless of who committed them."⁵ Applying this rule to the facts in that case, we held that the state was entitled to sovereign immunity where a juvenile delinquent, who had been committed to the custody of the DHR, shot the operator of a contract home where the Department had placed him.

The holding in Hutchinson was subsequently reaffirmed in Ga. Military College v. Santamorena.⁶ In that case, a student at Georgia Military College, a state institution, was raped by a fellow student on school premises. The victim's mother sued the college for negligence, alleging that it failed to take proper actions to ensure her daughter's safety. Although the plaintiff couched her action as a claim for breach of the college's independent duty to protect the victim, we relied on Hutchinson for the proposition that "we do not look at the duty allegedly breached by the government, but focus on the act causing the plaintiff's loss."⁷ Because the victim's loss resulted from the commission of a tort enumerated in subsection (7), the state was entitled to sovereign immunity.

In determining whether the exception set forth in OCGA § 50-21-24(7) applies, therefore, the focus is not on "the government action taken" or "the duty allegedly breached by the government," but on the act causing the underlying loss, and it is not necessary that such act have been committed by a state officer or employee. In this case, it is apparent that the act allegedly causing the underlying loss—i.e., the strangulation of Dudley—constitutes an assault or battery within the meaning of the exception.⁸ Accordingly, the exception to the waiver of sovereign immunity applies, and the trial court erred in denying DHR's motion to dismiss.⁹ 2. In his dissent, Presiding Judge Pope argues that Hutchinson and Santamorena were wrongly decided and should be overruled. In essence, the dissent¹⁰ asserts that (1) the assault and battery exception applies only where the state is being sued for the specific tort of assault or battery, and not where it is being sued under a different legal theory; and (2) the exception applies only if the assault or battery is committed by a state officer or employee acting in the scope of his employment. Under the dissent's reasoning, therefore, the assault and battery exception would provide protection only in one narrow instance, i.e., when the plaintiff seeks to hold the state liable under the doctrine of respondeat superior for an assault or battery committed by one of its officers or employees in the course of his employment. If the state is sued under a different theory, based on the independent negligence of a state officer or employee, the assault and battery exception would provide no protection. For the reasons discussed below, this approach is incorrect.

The dissent's analysis is based almost entirely on analogy to the Federal Tort Claims Act (FTCA). The dissent asserts that (1) the GTCA was "in most respects" patterned after the FTCA; (2) the FTCA has an assault and battery exception, which has been interpreted by the United States Supreme Court as applying only when the assault or battery is committed by a federal employee acting within the scope of his official duties; (3) the Georgia legislature was aware of this interpretation of the FTCA at the time it adopted the GTCA; and (4) therefore, the Georgia legislature must "necessarily" have intended for the GTCA's assault and battery exception to be interpreted in the same manner.

This analysis is fundamentally flawed because its underlying premise—that the GTCA is simply a "clone" of the FTCA—is incorrect.¹¹ As we noted in Santamorena, the federal assault and battery exception is quite different from the Georgia exception. The federal statute states that "[t]he provisions of this chapter [waiving sovereign immunity] shall not apply to ... [a]ny claim arising out of assault [or] battery."¹² The Georgia statute, by contrast, provides that "[t]he state shall have no liability for losses resulting from ... [a]ssault [or] battery."¹³ The differences between the two statutes are thus clear: (1) the federal statute focuses on the claim being asserted by the plaintiff, while the Georgia statute focuses on the loss suffered by the plaintiff; and (2) the federal statute limits the extent of the waiver of sovereign immunity, while the Georgia statute affirmatively provides that the state "shall have no liability" for losses resulting from certain acts.

Notwithstanding these differences, the dissent argues that Georgia's assault and battery exception should be given precisely the same interpretation as the federal exception, under the theory that the legislature was aware of the federal statute and case law interpreting it when it adopted the GTCA. We believe, however, that the approach should be exactly the opposite: If the legislature "mostly" patterned the Georgia statute after the federal statute, any decision to depart from the federal language must have been made for a reason. The question thus becomes, "Why did the legislature elect to make the state statute different from the federal statute?" The answer cannot be, as the dissent would suggest, "Because it wanted the meaning to be identical."

It is thus necessary to look at the Georgia language on its own terms, and not simply to defer to federal cases construing a substantially different statute. As discussed above, the Georgia statute provides that the state "shall have no liability for losses resulting from ... [a]ssault [or] battery." Thus,...