Gay v. Georgia Dept. of Corrections

• Decision Date: 08 October 2004
• Docket Number: No. A04A0749.,A04A0749.
• Citation: 270 Ga. App. 17,606 S.E.2d 53
• Parties: GAY v. GEORGIA DEPARTMENT OF CORRECTIONS et al.
• Court: Georgia Court of Appeals

606 S.E.2d 53

270 Ga. App. 17

GAY v. GEORGIA DEPARTMENT OF CORRECTIONS et al.

No. A04A0749.

Court of Appeals of Georgia.

October 8, 2004.

Certiorari Denied January 24, 2005.

Orr & Orr, E. Wycliffe Orr, Sr., Ralph S. Goldberg, Decatur, for appellant.

Thurbert E. Baker, Attorney General, Bryan F. Dorsey, Marietta, Rutherford & Christie, Carrie L. Christie, Atlanta, Laura V. Benesh, for appellees.

ADAMS, Judge.

Ralph Gay appeals the trial court's order granting summary judgment to the Stone Mountain Memorial Association ("Association") and partial summary judgment to the Georgia Department of Corrections ("DOC"), and denying his motion for partial summary judgment. We affirm for the reasons set forth below.

Ralph Gay filed a negligence claim against the DOC seeking damages for physical injuries incurred while he was an inmate at the Rockdale-DeKalb Probation Detention Center ("PDC"). According to the complaint, Gay was on a required work detail when a DOC employee directed him to cut a limb from a tree. Gay climbed an unsecured ladder to perform the task and subsequently fell 25 feet to the ground, injuring his neck, back, arm, and leg.

In an amendment to his complaint, Gay added the Association as a defendant and asserted negligence and breach of contract claims against DOC and the Association. Gay claimed his work detail was governed by a contract between the DOC and the Association (the "Contract"); that the Contract required the Association to provide a safe workplace for the inmates; and that he was a third-party beneficiary under the Contract.

Gay filed a motion for partial summary judgment, arguing that the Association (i) was not subject to the Georgia Tort Claims Act and was not entitled to ante litem notice thereunder, and (ii) he was a third-party beneficiary to the Contract. The Association filed its own motion for summary judgment, contending Gay's failure to provide ante litem notice caused his negligence claims against the Association to fail, and that Gay's contract claims failed because he was not a third-party beneficiary to the Contract. The DOC also moved for partial summary judgment on Gay's contract claims. The trial court denied Gay's motion for partial summary judgment and granted the Association's motion for summary judgment and the DOC's motion for partial summary judgment.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56(c); Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim. Id. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga.App. 680, 682(1), 503 S.E.2d 581 (1998).

The pertinent facts are not in dispute. Gay was injured while on an inmate work detail providing services under the Contract. The Contract required the DOC to provide the Association with four inmate work details for labor on public works projects. Each work detail consisted of one correctional officer and up to twelve inmates. The DOC had the exclusive right and responsibility, through the correctional officer, to supervise the inmates. The Association retained the right to direct the correctional officer as to the work to be performed by the inmates. The Association was obligated to pay the DOC $30,552 per detail, per year.

1. Because Gay failed to give ante litem notice, the validity of Gay's negligence claim against the Association depends upon whether Gay was required to pursue the claim subject to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. See, e.g., Grant v. Faircloth, 252 Ga.App. 795-796, 556 S.E.2d 928 (2001) (trial court failed to acquire subject matter jurisdiction where plaintiff did not give ante litem notice in accordance with the Georgia Tort Claims Act). In turn, the application of the Georgia Tort Claims Act depends upon whether the Association is entitled to sovereign immunity from tort claims under Article I, Section II, Paragraph IX of the Georgia Constitution, as this is the immunity waived under the Georgia Tort Claims Act, subject to the exceptions and limitations which include the ante litem notice requirement. See Miller v. Ga. Ports Auth., 266 Ga. 586, 587-588, 470 S.E.2d 426 (1996).

The Georgia Constitution provides that "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." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). The General Assembly, through the Georgia Tort Claims Act and subject to the limitations set forth therein, has waived sovereign immunity for torts of state officers and employees acting within the scope of their official duties or employment. OCGA § 50-21-23(a).

In waiving sovereign immunity under the Georgia Tort Claims Act, the General Assembly chose to define "State" more broadly than might be suggested by Article I, Section II, Paragraph IX (e) of our Constitution, which references the state and its "departments and agencies." "State," for purposes of the Georgia Tort Claims Act, is defined as the "State of Georgia and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions, but does not include counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities." OCGA § 50-21-22(5). Our Supreme Court has apparently accepted this definition in extending sovereign immunity for purposes of our Constitution and the Georgia Tort Claims Act:

[W]e are guided by our opinion in Miller v. Georgia Ports Authority, 266 Ga. 586, 470 S.E.2d 426 (1996), in which we interpreted both Article I, Section II, Paragraph IX and the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., to extend sovereign immunity to the State of Georgia, its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions. See OCGA § 50-21-22(5), (6). Looking to the legislation creating the Georgia Ports Authority and the public purposes for which it was created, we held in Miller that the Georgia Ports Authority is a State agency entitled to raise the defense of sovereign immunity.

Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd., 273 Ga. 715, 716(1), 545 S.E.2d 875 (2001). In deciding that the Georgia Ports Authority was a state agency for purposes of sovereign immunity, our Supreme Court in Miller reasoned that

The dictionary defines the word "agency" as "a department or other administrative unit of government." The 1945 act creating the authority designated it as the "state" ports authority charged with the power to develop, improve, and maintain the harbors and seaports of the state. As the state administrative unit responsible for the state docks, the Georgia Ports Authority is a state agency entitled to sovereign immunity.

(Footnotes omitted.) 266 Ga. at 587, 470 S.E.2d 426. The Miller majority did not directly address the dissent's argument that as a "mere instrumentality" of the state the Georgia Ports Authority was not entitled to sovereign immunity, and that its function was irrelevant. Id. at 590, 470 S.E.2d 426.

Gay argues that notwithstanding the definition of "State" for purposes of the Georgia Tort Claims Act, the Association's creating legislation shows it is not a state department or agency, but is a separate instrumentality not subject to sovereign immunity. The Association has its own legal identity demonstrated by, among other things, the power to acquire property, to contract, and to borrow money. OCGA § 12-3-194. In particular, Gay points to OCGA § 12-3-195, which provides that "[t]he rentals contracted to be paid by the state or any department, agency, or institution of the state to the [A]ssociation ... shall constitute obligations of the state for the payment of which the good faith of the state is pledged." Thus, he contends, there is a clear difference between the Association on the one hand and the state and its departments and agencies on the other. The flaw in Gay's argument is that it is essentially the same position put forth by the dissent in Miller with respect to the Georgia Ports Authority. See 266 Ga. at 589-590, 470 S.E.2d 426. The majority in that case looked to the Georgia Ports Authority's public purpose under its creating legislation and was unpersuaded by the minority's claim that its existence as a state instrumentality rendered its function irrelevant for purposes of sovereign immunity. Gay also relies on Thomas v. Hospital Auth. of Clarke County, 264 Ga. 40, 440 S.E.2d 195 (1994) and Jackson v. Ga. Lottery Corp., 228 Ga.App. 239, 491 S.E.2d 408 (1997). In Thomas, our Supreme Court held that hospital authorities are not entitled to sovereign immunity because they are neither the state nor a department or agency of the state. 264 Ga. at 42(1),440 S.E.2d 195. In Jackson, we concluded that sovereign immunity did not extend to the Georgia Lottery Corporation. 228 Ga.App. at 242(1),491 S.E.2d 408. Neither of these cases applies the Georgia Tort Claims Act directly, as Jackson involved a contract claim and the court in Thomas does not address the act. However, Jackson and Thomas contain language indicating that, at least outside the context of the Georgia Tort Claims Act, instrumentalities of the state are not entitled...