Department of Human Resources v. Johnson, No. A03A1064
| Decision Date | 25 November 2003 |
| Docket Number | No. A03A1065., No. A03A1064 |
| Citation | 264 Ga. App. 730,592 S.E.2d 124 |
| Parties | DEPARTMENT OF HUMAN RESOURCES et al. v. JOHNSON et al. Cobb et al. v. Johnson et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Thurbert E. Baker, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., Loretta L. Pinkston, Senior Asst. Atty. Gen., Jennifer L. Dalton, Asst. Atty. Gen., Perrie & Cole, Robert L. Bunner, for appellants (case no. A03A1064).
Spivey, Carlton & Edenfield, J. Franklin Edenfield, Swainsboro, for appellants (case no. A03A1065).
Phears & Moldovan, H. Wayne Phears, Victor L. Moldovan, Jason L. Groch, Norcross, for appellees. BLACKBURN, Presiding Judge.
Following a jury verdict for the plaintiff in this action concerning the wrongful death of a minor in state custody, the Georgia Department of Human Resources ("DHR") and the Georgia Department of Juvenile Justice ("DJJ")1 appeal the trial court's denial of their motion to dismiss and motion for directed verdict, contending they are immune from suit under the Georgia Tort Claims Act ("GTCA").2 In a related appeal, co-defendant Broken Shackle Ranch, Inc. ("Broken Shackle") contends the jury's verdict is excessive. For the reasons set forth below, we reverse the judgment against DHR and DJJ in Case No. A03A1064 and affirm the amount of the verdict against Broken Shackle in Case No. A03A1065.
The record shows that Parthenia Johnson, acting individually and on behalf of the estate of her minor son, Bryan Jones, brought suit against DHR, DJJ, and Broken Shackle for Bryan's wrongful death. At the time of his death, Bryan, age 15, was a juvenile offender in the joint legal custody of DJJ and the Department of Family and Children Services ("DFCS"), a DHR agency. DHR and DJJ placed Bryan at Broken Shackle, a corporate facility licensed by DHR as a child caring institution. On July 24, 1995, Robert Contrera, a Broken Shackle house parent, told Bryan to sweep behind a freezer in the facility's basement. Bryan was electrocuted by faulty wiring behind the freezer and died. Subsequently, Johnson sued DHR, DJJ, and Broken Shackle for Bryan's wrongful death and pain and suffering.
In response, DHR and DJJ filed motions to dismiss and for directed verdict, contending that they were immune from suit. The trial court denied these motions. The jury found all three defendants liable for Bryan's death. The present appeals ensued.
DHR and DJJ appeal both the trial court's finding that immunity had been waived and its concomitant denial of their motions to dismiss and for directed verdict, contending the trial court erred in determining that: (1) Broken Shackle (a corporation) and Contrera, though independent contractors, were "employees" of the state for purposes of the GTCA pursuant to certain general statutory exceptions to the doctrine that an employer is not generally liable for the torts of an independent contractor, even though the GTCA did not authorize such exceptions;3 and (2) Contrera (an employee of Broken Shackle, a corporation) was a foster parent for Bryan, and therefore an employee of the state under the GTCA.
As discussed more fully below, we agree that the trial court erred because: (1) our legislature has not provided in the GTCA for a waiver of sovereign immunity for acts which constitute exceptions to the doctrine that an employer is not generally liable for the torts of an independent contractor; and (2) Contrera, under the facts of this case, was not a foster parent.
We review de novo a trial court's denial of a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Bd. of Public Safety v. Jordan.4 However, factual findings by the trial court in support of its legal decision are sustained if there is evidence authorizing them, and the burden of proof is on the party seeking the waiver of immunity. Dept. of Transp. v. Dupree.5
In general, the State of Georgia and its agencies are immune from suit, subject to explicit and unequivocal waiver by the legislature. Ga. Const.1983, Art. I, § II, Par. IX.
The common law doctrine of sovereign immunity, adopted by this state in 1784, protected governments at all levels from unconsented-to legal actions. Prince's 1837 Digest, p. 570; Crowder v. Dept. of State Parks.6 The doctrine was given constitutional status in 1974, but the state remained absolutely immune from suit until 1983 after voters approved an amendment to the State Constitution waiving the sovereign immunity of the in actions for which liability insurance protection was provided. Ga. Const. of 1983, Art. I, § II, Par. IX. In 1991, the constitutional doctrine of sovereign immunity was amended to extend sovereign immunity "to the state and all of its departments and agencies," and this immunity is to prevail except as specifically provided therein. Ga. Const. of 1983, Art. I, § II, Par. IX (e).
(Footnotes omitted.) Gilbert v. Richardson.7
The 1991 amendment to the Georgia Constitution provides, in relevant part:
(Emphasis supplied.) Ga. Const.1983, Art. I, § II, Par. IX.
Thus, "[c]onsidering the 1991 amendment as a whole, ... sovereign immunity [may be] waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver." Gilbert, supra at 748(3), 452 S.E.2d 476. The 1991 amendment, therefore, effectively withdrew the waiver of sovereign immunity from its effective date, it having been approved on April 4, 1990,8 until the effective date of the GTCA, which was approved on April 16, 1992.9 See Curtis v. Bd. of Regents &c. of Ga.10
1. DHR and DJJ contend that the trial court erred by ruling that, pursuant to the law of respondeat superior set forth in OCGA § 51-2-5,11 Broken Shackle and Contrera could be considered employees of the state under the GTCA, thereby triggering a waiver of immunity. As OCGA § 51-2-5 does not "specifically provide[ ] that sovereign immunity is ... waived [for its purposes] and the extent of such waiver," Ga. Const. 1983, Art. I, Sec. II, Par. IX(e), and the GTCA makes no incorporation of OCGA § 51-2-5 by reference or otherwise, OCGA § 51-2-5 is not applicable in determining who falls within the definition of an employee for purposes of waiver under the GTCA. Therefore, we agree that the trial court erred in this matter. Ga. Const.1983, Art. I, § II, Par. IX (e).
OCGA § 50-21-23(a) provides:
The 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. The state shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment.
OCGA § 50-21-23(b) elaborates: "The state waives its sovereign immunity only to the extent and in the manner provided in this article and only with respect to actions brought in the courts of the State of Georgia." (Emphasis supplied.)
OCGA § 50-21-22(7), in turn, defines an employee for the purposes of the GTCA 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, whether with or without compensation, but the term does not include an independent contractor doing business with the state. The term state officer or employee also includes any natural person who is a member of a board, commission, committee, task force, or similar body established to perform specific tasks or advisory functions, with or without compensation, for the state or a state government entity, and any natural person who is a volunteer participating as a volunteer, with or without compensation, in a structured volunteer program organized, controlled, and directed by a state government entity for the purposes of carrying out the functions of the state entity. An employee shall also include foster parents and foster children. The term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity.
(Emphasis supplied.)
Thus, the GTCA, on its face, provides that, for its purposes, neither a corporation nor an independent contractor, without exception, can be considered an employee of the state for purposes of triggering a waiver of immunity. Applying this plain mandate to the facts now before us, Broken Shackle is a corporation and therefore not an employee of the state for purposes of the GTCA. There is thus no waiver of sovereign immunity by the state in this regard.
Furthermore, the provisions of OCGA § 51-2-512 (4) () and (5) (employees under...
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