Georgia Forestry Com'n v. Canady

Decision Date26 June 2006
Docket NumberNo. S05G2002.,S05G2002.
PartiesGEORGIA FORESTRY COMMISSION v. CANADY.
CourtGeorgia Supreme Court

Mark W. Wortham, Mark A. Barber, Hicks, Casey & Barber, P.C., Marietta, for Appellant.

Billy N. Jones, G. Brinson Williams Jr., Jones, Osteen, Jones & Arnold, Hinesville, Joseph Mark Murphey, Crim & Bassler, Matthew P. Stone, Sun S. Choy, Freeman, Mathis & Gary, LLP, Atlanta, for Appellee.

BENHAM, Justice.

This appeal brings into issue the breadth of an exception to the waiver of sovereign immunity found in the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (GTCA). In the GTCA, 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. . . ." OCGA § 50-21-23(a). Pursuant to the statutory exception at issue, "[t]he state shall have no liability for losses resulting from: . . . [c]ivil disturbance, riot, insurrection, or rebellion or the failure to provide, or the method of providing, law enforcement, police, or fire protection." OCGA § 50-21-24(6).

In Georgia Forestry Commission v. Canady, 274 Ga.App. 556(3), 617 S.E.2d 569 (2005), the Court of Appeals affirmed the trial court's decision that the Georgia Forestry Commission (GFC) was not entitled to judgment as a matter of law on the basis of the "fire protection" exception to the waiver of sovereign immunity. Faced with GFC's assertion of sovereign immunity in response to appellee Canady's allegation that GFC was negligent in failing to notify other governmental agencies it was probable that visibility on a state highway would be obscured by smoke from a fire which had started as a "controlled burn" permitted by GFC, the Court of Appeals addressed a question of first impression and declined to construe "`fire protection' so broadly as to include notification of other governmental entities of the possibility of reduced visibility [due to smoke] after a fire." Id., at 562, 617 S.E.2d 569. We granted a writ of certiorari to the Court of Appeals to review that decision.

Sovereign immunity is a common law doctrine which was adopted in Georgia in 1784 and was given constitutional status in 1974, with the State remaining absolutely immune from suit until voters in 1983 approved a constitutional amendment waiving sovereign immunity in actions for which liability insurance protection was provided. Gilbert v. Richardson, 264 Ga. 744(1), 452 S.E.2d 476 (1994). See also State Bd. of Education v. Drury, 263 Ga. 429(1), 437 S.E.2d 290 (1993). After voters approved another constitutional amendment with regard to sovereign immunity, the Georgia Constitution now provides that 34;sovereign immunity extends to the state and all of its departments and agencies [and] 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." 1983 Ga. Const., Art. I, § II, Par. IX (e). The General Assembly passed a limited waiver of sovereign immunity in 1992 when it enacted the GTCA. Riddle v. Ashe, 269 Ga. 65(2), 495 S.E.2d 287 (1998). In the GTCA, the General Assembly stated its legislative intent to strike a balance between "the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity" and the need to limit "[t]he exposure of the state treasure to tort liability" since "[i]n acting for the public good and in responding to the public need, state government must provide a broad range of services and perform a broad range of functions throughout the entire state, regardless of how much exposure to liability may be involved." OCGA § 50-21-21. As noted above, the General Assembly went on to provide specifically for the State's waiver of sovereign immunity for "the torts of state officers and employees while acting within the scope of their official duties or employment . . ." (OCGA § 50-21-23(a)), but expressly exempted from the waiver of sovereign immunity any liability for, among other things, "losses resulting from . . . the failure to provide, or the method of providing law enforcement, police, or fire protection." OCGA § 50-21-24(6).

We have not had occasion to construe that statutory provision; however, the Court of Appeals has addressed § 50-21-24(6) with regard to law enforcement and has given the provision a broad construction. The Court of Appeals construed "method" to mean "a way of doing anything" (Hilson v. Dept. Public Safety, 236 Ga.App. 638, 640, 512 S.E.2d 910 (1999)), and has examined in several cases whether the alleged negligent conduct occurred while the allegedly negligent employee was engaged in "providing law enforcement." See Price v. State of Georgia, 250 Ga.App. 872(2), 553 S.E.2d 194 (2001) (actions taken by a ranger employed by the Department of Natural Resources to enforce environmental regulations constituted a method of providing law enforcement); Hilson v. DPS, supra, 236 Ga.App. at 640, 512 S.E.2d 910 (pursuit of a speeding vehicle by a state trooper engaged in transporting prisoners is a method of providing law enforcement under § 50-21-24(6)); Blackston v. Georgia Dept. of Public Safety, 274 Ga.App. 373, 618 S.E.2d 78 (2005) (state trooper's allegedly negligent performance of a method of law enforcement (chasing a speeder) by doing so in a manner that deviated from departmental procedure fell within the exception to the waiver of sovereign immunity); and Long v. Hall County, 219 Ga.App. 853(3), 467 S.E.2d 186 (1996) (the allegedly negligent supervision of a prison work detail by an employee of the Georgia Department of Corrections was a failure to provide law enforcement services within the meaning of subsection (6)). The Court of Appeals' broad definition of "method" requires the court to examine the task which engaged the state employee when the allegedly negligent conduct occurred and has resulted in the conclusion that the State is immune from liability when the allegedly negligent act was committed by an employee acting within the scope of employment when that employment is in the field of law enforcement. This broad construction of the "method of providing law enforcement" exception effectively negates, insofar as law enforcement, police, and fire protection personnel are concerned, the waiver of sovereign immunity in § 50-21-23(a), which allows the State to be liable for the torts of state employees while acting within the scope of their employment. The construction of the exception in such a way as to swallow the rule to which it is an exception gives cause for concern since it does not promote the legislative intent to strike a balance between "the inherently unfair and inequitable results" of a strict application of sovereign immunity and limiting the exposure of the state treasury to tort liability. OCGA § 50-21-12.

The appellate courts in Texas, Kansas, and West Virginia have given a more narrow construction to each state's identical or nearly identical exception to the waiver of sovereign immunity in that state's tort claims act. In so doing, these courts have construed "method" as "`a procedure or process for attaining an object' and as an `orderly arrangement, development or classification,'" and deemed "method" to be synonymous with "`mode', `plan', `design', or `system.'" State of Texas v. Terrell, 588 S.W.2d 784, 788 (Tex.1979). See also Beckley v. Crabtree, 189 W.Va. 94, 97-98, 428 S.E.2d 317 (1993); Jackson v. City of Kansas City, 235 Kan. 278, 290-292, 680 P.2d 877 (1984), and Cessna Aircraft Co. v. Metropolitan Topeka Airport Auth., 23 Kan.App.2d 1038, 1049, 940 P.2d 84 (1997). We agree that "method" connotes an orderly procedure or process and adopt the definition used by Texas, West Virginia, and Kansas as more appropriate than that employed by our Court of Appeals.

Kansas limits coverage of its exception to the process of making policy decisions with regard to police and fire services by holding sovereign immunity covers only "such basic matters as the type and number of fire trucks and police cars considered necessary for the operation of the respective departments; how many personnel might be required; how many and where police cars are to operate; the placement and supply of fire hydrants; and the selection of equipment options." Jackson v. City of Kansas City, supra, 235 Kan. at 292, 680 P.2d 877, and Cessna Aircraft Co. v. Metropolitan Topeka Airport Auth., supra, 23 Kan.App.2d at 1049, 940 P.2d 84.

Texas and West Virginia have construed their exception more expansively, believing that the legislative intent of the exception is to provide sovereign immunity to "those acts or omissions which constitute the execution of or the actual making of those policy decisions . . . made by a governmental unit in charge of providing police and fire protection. . . ." State of Texas v. Terrell, supra, 588 S.W.2d at 788. See also Beckley v. Crabtree, supra, 189 W.Va. at 98, 428 S.E.2d 317 ("[T]he phrase `the method of providing police, law enforcement or fire protection' . . . refers to the formulation and implementation of policy related to how police, law enforcement or fire protection should be provided."). Both the Texas and West Virginia supreme courts saw as a purpose of the exception "to avoid a judicial review that would question the wisdom of a government's exercise of its discretion in making policy decisions." State of Texas v. Terrell, supra, 588 S.W.2d at 787; ...

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