Department of Human Resources v. Hutchinson
| Decision Date | 15 March 1995 |
| Docket Number | No. A94A2814,A94A2814 |
| Citation | 217 Ga.App. 70,456 S.E.2d 642 |
| Parties | DEPARTMENT OF HUMAN RESOURCES et al. v. HUTCHINSON. |
| Court | Georgia Court of Appeals |
Michael J. Bowers, Atty. Gen., William C. Joy, Atlanta, Carol A. Cosgrove, Sr. Asst. Attys. Gen., Cynthia H. Frank, Asst. Atty. Gen., Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Brunswick, for appellants.
Robert C. Harper, Brunswick, Tinkler & Groff, William P. Tinkler, Jr., Deana L. Simon, Decatur, for appellee.
A juvenile was declared delinquent and committed to the custody of the Department of Human Resources ("Department"), whereupon a screening committee determined that noninstitutional placement would be appropriate and placed him in a group home. He was removed from the home after being accused of taking the house parent's car keys. He was eventually placed in a "contract home" operated by Hutchinson, which was considered an alternative to institutional placement. She kept a loaded handgun under her mattress, which the juvenile found and used to shoot Hutchinson.
She sued the Department, alleging that it was negligent and consciously indifferent to her safety in placing the juvenile in her home and in failing to warn her of the juvenile's violent propensities. The Department moved for summary judgment, claiming sovereign immunity from suit because: (1) the act of placing the offender in Hutchinson's home was discretionary; and (2) Hutchinson's injury resulted from an assault and battery. The court denied the motion and issued a certificate of immediate review. Interlocutory appeal was permitted.
In the 1992 Georgia Tort Claims Act, OCGA § 50-21-20 et seq. ("Act"), the State waived "its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment ... subject to all exceptions and limitations set forth in [the Act]." OCGA § 50-21-23(a). See also OCGA § 50-21-21(a). The parties do not dispute that all the acts for which Hutchinson would hold the Department liable were committed within the scope of the official duties of state employees or officials, that Hutchinson's injury was the result of the juvenile offender's act, and that his act constitutes a tortious battery, or assault and battery. See OCGA §§ 51-1-13; 51-1-14; Hendricks v. Southern Bell Tel. etc. Co., 193 Ga.App. 264, 265(1), 387 S.E.2d 593 (1989).
An exception to liability addresses acts of assault or battery: "The state shall have no liability for losses resulting from ... [a]ssault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contractual rights." OCGA § 50-21-24(7). Hutchinson argues that OCGA § 50-21-24(7) only provides an exception to liability if a state officer or employee commits one of the listed torts. Whether the State is liable if the tort was committed by a third person is a matter of first impression. 1
Ingalls Iron Works Co. v. Blackmon, 133 Ga.App. 164, 165, 210 S.E.2d 377 (1974). Applying this rule of statutory construction, 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. The language used does not provide any limitation on the status of the person committing an OCGA § 50-21-24(7) tort; it provides instead that "[t]he state shall have no liability for losses resulting from " the enumerated torts. (Emphasis supplied.) "Loss" 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. Here, the government action taken, placing the juvenile in Hutchinson's home, itself produced no loss to her; it was the juvenile's independent tort, one specified in OCGA § 50-21-24(7), that resulted in Hutchinson's injury and damages.
Other subsections of OCGA § 50-21-24 also reveal that the exceptions in subsection (7) are not intended to apply to losses resulting from specified torts only when those torts are committed by state employees or officials. Two subsections specifically except liability for losses resulting from certain acts by "a state officer or employee." OCGA § 50-21-24(1), (2).
The inclusion of these words gives the exceptions in subsections (1) and (2) the narrowness Hutchinson urges for subsection (7). Hutchinson would have us add a limiting phrase into a subsection when the legislature, faced with a choice, did not do so. Head v. H.J. Russell Constr. Co., 152 Ga.App. 864, 865, 264 S.E.2d 313 (1980). The interpretation Hutchinson advocates does not reconcile the various subparts of OCGA § 50-21-24.
The omission of any reference to "state officer or employee" from OCGA § 50-21-24(7) also " State v. Peters, 213 Ga.App. 352, 355, 444 S.E.2d 609 (1994). The omission of any such reference from OCGA § 50-21-24(7) must be regarded as deliberate.
Finally, " ...
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