Georgia Dep't of Corr. v. James
| Decision Date | 21 October 2011 |
| Docket Number | No. A11A0856.,A11A0856. |
| Citation | 11 FCDR 3349,312 Ga.App. 190,718 S.E.2d 55 |
| Parties | GEORGIA DEPARTMENT OF CORRECTIONS v. JAMES et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Samuel S. Olens, Atty. Gen., Loretta L. Pinkston, Senior Asst. Atty. Gen., Bryon Alan Thernes, Elizabeth Ahern Monyak, Asst. Attys. Gen., for appellant.
Savage, Turner, Pinson & Karsman, Ashleigh Ruth Madison, Savannah, Joseph Wiley, Jr., for appellees.
The Georgia Department of Corrections (DOC) appeals the denial of its motion to dismiss, which asserted that sovereign immunity barred a lawsuit filed against it by Anthony Wayne James.1 In the lawsuit, James alleged that, on May 31, 2005, as a state inmate on a work detail at an Effingham County ball park, he was required to continue pouring a concrete slab even through rainy weather; he lost his balance, and the wet concrete came into contact with skin on his legs; his legs were chemically burned, and the affected areas worsened, until he was taken to a hospital six days after the incident; by that point, his condition required him to undergo two surgeries, treatment at a burn unit, skin grafting, and physical therapy.
James sought damages for his personal injuries, naming the DOC as a defendant. 2 He charged the DOC with negligence, asserting that it had breached a nondelegable duty to protect his safety and health at the construction site and that it had breached a nondelegable duty to provide proper and expedient medical care after he sustained injuries at the construction site. As set forth more fully below, however, James failed to establish any waiver of sovereign immunity with respect to his negligence claims against the DOC. Consequently, we reverse the denial of the DOC's motion to dismiss.
At all relevant times, James was incarcerated at Effingham County Prison, pursuant to a contract between the DOC and Effingham County for the latter to house and care for state inmates. Supervising the slab construction was a maintenance coordinator employed by Effingham County; his job responsibilities included overseeing the construction and maintenance of county facilities, such as the ball park where James was injured. Also at the construction site, supervising James and other inmates who were assigned the same work detail, was a correctional officer employed by the Effingham County Prison.
At about 3:00 p.m. that day, after several hours of pouring concrete, James complained to the maintenance coordinator and the correctional officer that contact with the wet concrete had caused a skin reaction on his legs. The correctional officer handed James “burn cream” from a first aid kit, which James applied to the affected areas before continuing with the slab construction. At about 6:00 p.m., when the slab work was completed, the maintenance coordinator drove James back to Effingham County Prison.
The next morning, James sought treatment for his legs at the medical unit at Effingham County Prison. A licensed practical nurse who worked there and was employed by the Effingham County Board of Commissioners (and not the DOC) treated the wounds as abrasions rather than chemical burns and thus applied to the affected areas a hydrogen peroxide solution and triple antibiotic ointment, then wrapped them with gauze. Because his condition was worsening, James sought help from the medical unit on each of the next five days; on each visit, the nurse responded with the same treatment to his legs. On June 6, 2005, the nurse's supervisor returned from vacation, looked at James's legs, then immediately ordered him transported to a hospital. That same day, the DOC was first notified of James's injuries.
After these circumstances were revealed during discovery, the DOC filed a motion to dismiss, arguing that James's claims of negligence against the DOC were barred by sovereign immunity. Under the Georgia Constitution, 3
James responded to the DOC's motion by claiming that sovereign immunity was waived under the Georgia Tort Claims Act (GTCA),4 citing thereof OCGA § 50–21–23(a): “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.” The GTCA defines “[s]tate officer or employee,” in part, 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.... 5
James asserted that Effingham County's personnel—identifying specifically: (i) the county maintenance coordinator and the county correctional officer, as the individuals who had required him to continue constructing the concrete slab during inclement weather, and (ii) the county nurse, who had applied ointment and gauze to his worsening condition—were “law enforcement officers” and/or “persons acting on behalf or in service of the state in any official capacity.”
Countering James's claim that sovereign immunity was waived, the DOC pointed out that there was no evidence that any DOC officer or employee had committed any of the alleged negligent acts or omissions. Further, the DOC pointed out that it was undisputed that, at all times relevant to his negligence claims, James was being housed and thus cared for at the Effingham County Prison, pursuant to Effingham County's contract with the DOC. Pointing out also that the GTCA defines “state” so as to exclude counties,6 and additionally relying on the GTCA's exclusion of independent contractors from the definition of “[s]tate officer or employee,” the DOC argued that James had failed to make the requisite showing that any state officer or employee had committed a tort for which sovereign immunity was waived by the GTCA.
The trial court ruled that James's suit was not subject to dismissal. Citing OCGA §§ 42–2–5,7 42–2–11(c),8 and 42–5–53(b), 9 the court determined, “Because the Effingham County Prison and its employees are subject to the [DOC's] rules and supervision, ... they are not ‘independent contractors' but ‘... persons acting on behalf or in the service of the state in any official capacity.’ ” Citing Summerlin v. Ga. Pines Community Svc. Bd.,10 the court noted, “Under the facts of this case, it may also be that the employees of the Effingham County Prison are ‘borrowed servants' and therefore ‘state employees.’ ”
The DOC filed this direct appeal from the denial of its motion, 11 maintaining that James's suit against it was barred by sovereign immunity.
Sovereign immunity is not an affirmative defense12 that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the [s]tate, and the waiver must be established by the party seeking to benefit from the waiver. Thus, [James], not [the DOC], had the burden of establishing that [the DOC] had waived sovereign immunity.13
14 For the following reasons, we agree with the DOC that James's suit is barred.
1. In determining that James's suit was not subject to dismissal based on sovereign immunity, the trial court misplaced reliance upon OCGA §§ 42–2–5, 42–2–11(c), and 42–5–53.
Nowhere in [any one of those statutory provisions] has the Legislature “specifically provide[d] that sovereign immunity [has been] waived and the extent of such waiver,” 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.15
“[I]implied waivers of governmental immunity should not be favored.” 16 Thus, even if, pursuant to the cited statutory provisions, “the Effingham County Prison and its employees are subject to the [DOC's] rules and supervision,” those statutory provisions did not authorize the trial court's ultimate conclusion that sovereign immunity was waived.17
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