James v. Ga. Dep't of Pub. Safety

• Decision Date: 12 July 2016
• Docket Number: A16A0018
• Citation: 337 Ga.App. 864,789 S.E.2d 236
• Parties: James v. Georgia Department of Public Safety.
• Court: Georgia Court of Appeals

337 Ga.App. 864

789 S.E.2d 236

James

v.Georgia Department of Public Safety.

A16A0018

Court of Appeals of Georgia.

July 12, 2016

Roger J. Dodd, Valdosta, William Paul Fryer, Matthew A. Dodd, for Appellant.

Samuel S. Olens, Kathleen Sadler Turnipseed, Atlanta, Angela Ellen Cusimano, for Appellee.

McFadden

, Judge.

Latricka Sloan died from injuries sustained when the car she was driving crashed as she fled from Georgia State Patrol officers in a high-speed chase. Sloan's adult daughter, Breshonda James, on behalf of herself and her minor siblings, brought this wrongful death action against the Georgia Department of Public Safety (“the Department”), the state agency that oversees the day-to-day operations of the Georgia State Patrol. In the action, James alleged that one of the officers negligently failed to comply with the Department's pursuit policy by continuing the chase and executing a Precision Immobilization Technique (“PIT maneuver”) to stop Sloan's car. The trial court granted the Department's motion to dismiss the action for want of subject matter jurisdiction on the ground that the Department had sovereign immunity. James appeals.

James argues that the trial court erred in making pre-trial findings of fact in ruling on the motion to dismiss, but the Georgia Civil Practice Act permitted the trial court to make such findings. James also argues that the trial court should have disregarded certain witnesses' testimony under the rule governing self-contradictory testimony, but that rule does not apply because those witnesses are not parties to this case. As detailed below, the record contains evidence supporting the trial court's determination that sovereign immunity applied. In fact, James concedes that factual disputes exist on the issue. Given the evidence—albeit disputed—supporting the trial court's ruling, our standard of review requires us to affirm.

1. Standard of review, facts, and procedural background.

“We review de novo a trial court's grant of a motion to dismiss on sovereign immunity grounds[.]” Pelham v. Bd. of Regents &c. , 321 Ga.App. 791, 743 S.E.2d 469 (2013)

. “However, factual findings by the trial court in support of [his] legal decision are sustained if there is evidence authorizing them, and the burden of proof is on the party seeking the waiver of immunity.” Loehle v. Ga. Dept. of Pub. Safety , 334 Ga.App. 836, 836–837, 780 S.E.2d 469 (2015) (citations omitted). Accord Diamond v. Dept. of Transp. , 326 Ga.App. 189, 190, 756 S.E.2d 277 (2014) ; Pak v. Ga. Dept. of Behavioral Health &

Dev

. , 317 Ga.App. 486, 731 S.E.2d 384 (2012) ; Sadler v. Dept. of Transp. , 311 Ga.App. 601, 603, 716 S.E.2d 639 (2011).

We are not persuaded by James's argument that, in reviewing the trial court's ruling, we must view the factual allegations in her complaint as true to determine whether the complaint showed with certainty that she would not be entitled to relief under any state of facts that could be proven in support of her claim. That standard of review is appropriate for a ruling on a motion to dismiss for failure to state a claim under OCGA § 9–11–12 (b) (6)

, see Bonner v. Peterson , 301 Ga.App. 443, 687 S.E.2d 676 (2009), or for a ruling on a motion to dismiss for lack of subject matter jurisdiction under OCGA § 9–11–12 (b) (1) where the trial court has not made factual findings. See McCoy v. Ga. Dept. of Admin. Svcs. , 326 Ga.App. 853 n. 1, 755 S.E.2d 362 (2014) ; Pelham , 321 Ga.App. at 791 n. 1, 743 S.E.2d 469. In this case, however, the Department moved to dismiss for lack of subject matter jurisdiction and the trial court made factual findings in ruling on that motion. See generally Considine v. Murphy , 297 Ga. 164, 167 (1) n. 2, 773 S.E.2d 176 (2015) (ruling on motion to dismiss for lack of subject matter jurisdiction is subject to different standard of review than ruling on motion to dismiss for failure to state a claim); Bonner , 301 Ga.App. at 443, 687 S.E.2d 676 (same). Cases cited by James in which the trial court's ruling was based solely on the allegations in the complaint are therefore inapposite. See, e.g., Oconee Community Svc. Bd. v. Holsey , 266 Ga.App. 385, 597 S.E.2d 489 (2004) ; Ardizonne v. Dept. of Human Resources , 258 Ga.App. 858, 575 S.E.2d 738 (2002) ; Ga. Military College v. Santamorena , 237 Ga.App. 58, 514 S.E.2d 82 (1999).

Accordingly, as stated above, we consider on appeal whether there is evidence to support the trial court's factual findings. Loehle , 334 Ga.App. at 836–837, 780 S.E.2d 469

. Those factual findings are summarized as follows, and our review of the record reveals evidence supporting them.

On January 22, 2011, at about 10 p.m., Sloan approached a roadblock in her vehicle, made a U–turn, and accelerated away from the roadblock. Two Georgia State Patrol officers pursued her in vehicles with functioning blue flashing lights and audible sirens, and functioning radios by which the officers maintained car-to-car contact during the pursuit. Soon after the pursuit began, one of the officers (hereinafter the “primary pursuing officer”) passed the other officer (hereinafter the “secondary pursuing officer”) and took the lead in the pursuit. The primary pursuing officer asked the secondary pursuing officer to notify the Department's communications center of the pursuit. At the time of the pursuit, the officers did not know Sloan's identity.

The pursuit lasted for 4.8 miles, during which at least one of the officers maintained visual contact with Sloan's vehicle. The officers observed Sloan violate several traffic laws and drive in an erratic and dangerous manner, including exceeding the speed limit, failing to obey traffic signs and lights, and driving on the wrong side of the road. In the primary pursuing officer's opinion, these actions could place other motorists at risk of a serious accident. The officers, however, did not encounter any other traffic during the pursuit, and the condition of the road did not make the pursuit too hazardous to continue.

The primary pursuing officer was familiar with the traffic patterns of an approaching road, which he anticipated would have a high volume of traffic. He believed that there was a need to stop Sloan before she reached that road given her erratic and dangerous driving; that continuing the pursuit presented a greater danger than the danger associated with ending the pursuit through a PIT maneuver; and that alternative methods of ending the pursuit were not feasible. Approximately one mile before the intersection with the high-traffic road, the primary pursuing officer performed a PIT maneuver, in which he intentionally struck Sloan's vehicle. This caused Sloan's vehicle to leave the roadway and overturn. Sloan was killed.

An investigative division of the Georgia State Patrol investigated the circumstances of the crash and concluded that the officer who had performed the PIT maneuver acted in accordance with the Department's pursuit policy. The Georgia State Patrol's commanding officer reviewed that investigation and agreed with its conclusion.

After James filed a complaint against the Department alleging that the primary pursuing officer had acted negligently in pursuing Sloan and performing the PIT maneuver, the Department moved to dismiss for lack of subject matter jurisdiction, see OCGA § 9–11–12 (b) (1)

, arguing that it was entitled to sovereign immunity. Both parties submitted evidence in the form of affidavits and deposition testimony on the issue of sovereign immunity. After considering this evidence, the trial court determined that the Department was entitled to sovereign immunity and granted the motion to dismiss. James appeals, arguing that the trial court should not have decided the issue before trial given disputes in the evidence, and that the trial court should have disregarded some witness testimony. She also challenges the merits of the trial court's dismissal of the action.

2. Pre-trial determination of disputed facts.

James challenges the trial court's act of making pre-trial determination of disputed facts in ruling on the motion to dismiss for lack of subject matter jurisdiction. She argues that, instead of making factual findings, the trial court merely should have viewed her complaint to determine whether she would be entitled to relief under any state of facts that could be proven in support of her claim. She also argues that the trial court should have deferred ruling on the motion until trial, and she argues that a jury, rather than the trial court, should have decided some of the factual disputes pertinent to the issue of sovereign immunity. But as detailed below, Georgia's Civil Practice Act authorized the procedure used by the trial court, and James has shown no abuse of discretion.

A challenge to subject matter jurisdiction is a matter in abatement, Stivali v. Aquiport Aylesbury , 244 Ga.App. 389, 535 S.E.2d 551 (2000)

, and the Civil Practice Act permits a defendant to move to dismiss a complaint on that ground. OCGA § 9–11–12 (b) (1). See also Diamond , 326 Ga.App. at 190 (1), 756 S.E.2d 277 (“any suit brought to which an exception [to a waiver of sovereign immunity] applies is subject to dismissal pursuant to OCGA § 9–11–12 (b) (1) for lack of subject matter jurisdiction”) (citation omitted). Such motion “shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination thereof be deferred until the trial.” OCGA § 9–11–12 (d) (emphasis supplied). In considering a motion for lack of subject matter jurisdiction based on sovereign immunity, a trial court is not confined to the allegations of the complaint, as the court would be if considering a motion to dismiss for failure to state a claim under OCGA § 9–11–12 (b) (6). The trial court “may hear the matter on affidavits presented by the respective parties, [and] may direct that the matter be heard wholly or partly on oral testimony or depositions[,]” OCGA § 9–11–43 (b), and has broad...