Georgia Ports Authority v. Harris

Decision Date30 March 2000
Docket Number No. A99A2012, No. A99A2013.
Citation243 Ga. App. 508,533 S.E.2d 404
PartiesGEORGIA PORTS AUTHORITY v. HARRIS et al. Harris et al. v. Georgia Ports Authority.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Thurbert E. Baker, Attorney General, Daniel M. Formby, Kathleen M. Pacious, Deputy Attorneys General, R.O. Lerer, Senior Assistant Attorney General, George S. Zier, Assistant Attorney General, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Thomas J. Mahoney III, Mary K. Hogan, Savannah, for appellant.

Jones, Boykin, Stacy & Associates, Noble L. Boykin, Jr., for appellees. ELLINGTON, Judge.

In Case No. A99A2012, Georgia Ports Authority (GPA) appeals from the judgment entered on the jury's verdict in William N. and Ruthie Mae Harris' negligence suit under the Georgia Tort Claims Act (GTCA) for personal injuries suffered while Mr. Harris was working as a longshoreman at the Brunswick port.1 In Case No. A99A2013, the Harrises cross-appeal. The cases are considered together.

Harris, working out of the International Longshoremen's union hall for stevedore Ryan-Walsh Shipping Company,2 was injured on December 20, 1993, when he and others were attempting to remove a tarp from a stack of steel pipe which was to be loaded onto a waiting vessel. The steel had been removed from rail cars and stacked in the GPA yard by GPA workers on Friday, December 17, 1993. The steel was stacked in layers which were separated by four-inch by four-inch boards, called "dunnage." After the steel was stacked, the GPA workers sprayed the steel with a protective coating of oil and covered it with a tarp.

Because the tarp was holding standing water and could not be lifted off the steel by the men, Ryan-Walsh employees brought a forklift to the stack to help lift the tarp to allow the water to run off. As the water was draining off the tarp, the men heard a crack and a bundle of steel fell off the stack, severely injuring Harris. After the tarp was finally removed and the stack examined, it appeared that the GPA workers had not properly stacked the steel, causing the dunnage to break and one of the upper bundles of steel to fall.

Case No. A99A2012

1. GPA's first and second enumerations deal with the trial court's denial of its motion to dismiss, which was finalized by the judgment appealed, and are considered together.

Prior to trial, GPA filed its motion to dismiss pursuant to OCGA § 9-11-12(b)(1)-(6), contending that Harris had not given notice as required by OCGA § 50-21-26(a)(2).3 Although GPA argued, both at the hearing held on the motion to dismiss and during the trial, that the court should rule on the merits of the motion based solely on the pleadings, the court accepted both documentary and testimonial evidence on the issue of the validity of the notice.

(a) GPA contends the trial court erred by accepting evidence on this issue after initially denying the motion to dismiss based solely on the pleadings.

A review of the procedural history of this case is necessary to a resolution of this issue. Harris' complaint was originally filed in November 1995. As the claimed ante litem notice required by OCGA § 50-21-26, Harris attached a letter of July 26, 1994, addressed to Danny Thompson of GPA.4 The letter was from Derrell DeHart, an insurance adjuster/claim manager for Ryan-Walsh. That letter stated that it was:

to serve notice on the Georgia Ports Authority for potential liability in the accident and injury that occurred to ILA longshoreman, William N. Harris, on December 20, 1993 in Brunswick, Georgia. Mr. Harris' injuries occurred as a result of section of pipe falling, causing extensive damage to his knee, ankle and shoulder.

After GPA filed its motion to dismiss on May 6, 1996, Harris filed his second amended complaint which attached, in addition to the DeHart letter, the December 16, 1994 letter from prior counsel for Harris, Linny Bailey. That letter enclosed a "State of Georgia Tort Claim" setting out the matters required by OCGA § 50-21-26(a)(5). The copy of the letter attached to the complaint is marked "RECEIVED DEC 20 1994 DOAS/FISCAL DIVISION." The copy also bears the handwritten claim number assigned to Harris' claim by the Department of Administrative Services (DOAS). Also appended to the second amended complaint was the Federal Express air bill prepared by Bailey, pursuant to which the letter was sent overnight to Douglas Williams of the Risk Management Division of the DOAS.

At the hearing on GPA's motion to dismiss, held on April 3, 1997, GPA insisted that the matter was to be determined solely by reference to the "face of the pleadings in this case" and objected to consideration of evidence by the court. At the beginning of trial on March 30, 1998, the court revisited the issue of GPA's motion to dismiss. At that time, Harris had witnesses he wished to put on concerning the notice issue. GPA objected that the motion to dismiss had already been ruled on and that the court had already decided any issue of fact. The court pointed out, however, that the issue had been decided, based on GPA's position, solely on the pleadings and no factual determination had been made by the court. GPA then stated that "our contention [is] that the motion to dismiss is dispositive of all factual issues and that all those issues have been decided."

The court ruled that it would consider evidence regarding the issue of notice outside the presence of the jury and make factual determinations regarding notice. While GPA agreed that such evidence was not for the jury's consideration, it again urged that the issue should not be further considered by the court.

The crux of the issue is the mechanism by which it is determined whether a plaintiff has complied with the ante litem provisions of the statute, a question of subject matter jurisdiction. OCGA § 50-21-26(a)(3) ("the courts shall have no jurisdiction ... unless and until a written notice of claim has been timely presented to the state as provided in this subsection").

As pointed out by Harris and acknowledged by GPA, the lack of subject matter jurisdiction, such as failure to comply with the ante litem notice provisions of the GTCA, is a matter in abatement, not a motion designed to test the merits of the claim. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615, 208 S.E.2d 459 (1974); Pettus v. Drs. Paylay &c., P.C., 193 Ga.App. 335, 336, 387 S.E.2d 613 (1989); see McGregor v. Stachel, 200 Ga.App. 324(1), 408 S.E.2d 118 (1991). As such, it is controlled by OCGA § 9-11-43(b), which provides that: "[w]hen a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions...." (Emphasis supplied.) Ogden Equip. Co.,232 Ga. at 615,208 S.E.2d 459. In this case, the trial court considered depositions and testimony at trial from attorney Bailey, Thompson, DeHart, and Williams to determine whether it had subject matter jurisdiction. The trial court did not err in considering evidence outside the pleadings for that purpose.

(b) We turn now to GPA's first enumeration: that the trial court erred in denying the motion to dismiss because Harris did not strictly comply with the GTCA's ante litem notice requirement. In its final judgment, the trial court stated that, having initially denied GPA's motion to dismiss, additional evidence was presented on the issue, outside the presence of the jury, during trial and that "a final ruling on Defendant's motion was deferred pending receipt of the verdict." The trial court then concluded that the ante litem notice signed by attorney Bailey and physically delivered to DOAS by Federal Express on the anniversary of the date of Mr. Harris' injury, with a copy sent by regular mail to GPA's Thompson, satisfied the GTCA.

OCGA § 50-21-26(a) provides:

No person ... having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim as follows: ... (2) Notice of a claim shall be given in writing and shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity [involved].

(Emphasis supplied.) Because the Bailey letter was not sent by certified mail, the issue is whether the delivery by Federal Express constituted personal delivery in compliance with the emphasized portion of the statute. 5

Certainly, "[b]y its own terms, the State Tort Claims Act must be strictly construed," and we have held that substantial compliance with OCGA § 50-21-26(a)(2) is insufficient. Kim v. Dept. of Transp., 235 Ga.App. 480, 481(2), 510 S.E.2d 50 (1998); see also Howard v. State of Ga., 226 Ga.App. 543-544(1), 487 S.E.2d 112 (1997). But we do not conclude, as the dissent does, that the Federal Express delivery failed to satisfy the personal delivery option because DOAS opted to accept Federal Express deliveries at one desk and did not issue a separate paper "receipt" for the delivery, while claimants, their attorneys or local couriers would have been directed to a different desk at which separate receipts were issued. The requirement that a receipt be obtained can only have been intended to protect potential claimants, by providing proof of delivery of the required notice, and to simplify the trial court's determination of whether the claimant had complied with OCGA § 50-21-26(a)(2). In a case such as this, where actual receipt of the notice is admitted (and how could DOAS deny it, given its dated "received" stamp on the cover letter to Harris' ante litem notice?), the doctrine of strict compliance does not require us to...

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