Lewis v. Department of Human Resources

• Decision Date: 13 June 2002
• Docket Number: No. A02A0805.,A02A0805.
• Citation: 255 Ga. App. 805,567 S.E.2d 65
• Parties: LEWIS et al. v. DEPARTMENT OF HUMAN RESOURCES.
• Court: Georgia Court of Appeals

567 S.E.2d 65

255 Ga. App. 805

LEWIS et al. v. DEPARTMENT OF HUMAN RESOURCES.

No. A02A0805.

Court of Appeals of Georgia.

June 13, 2002.

Self, Glaser & Davis, Arthur H. Glaser, Mark B. Bullman, Atlanta, for appellants.

Thurbert E. Baker, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., Loretta L. Pinkston, Senior Asst. Atty. Gen., Jennifer L. Dalton, Asst. Atty. Gen., Skelly & Deininger, Richard M. Skelly, Atlanta, for appellee. BLACKBURN, Chief Judge.

Appellants, Carmen L. Lewis, individually and as administrator of the estate of Marvin R. Gentle, and Jane Collins, Gentle's next of kin, appeal the grant of the Georgia Department of Human Resources' (DHR) motion to dismiss, contending that DHR is not protected from immunity under the Georgia Tort Claims Act (GTCA). We affirm.

Gentle, a blind and retarded man, was a resident of the Macedonia Road Personal Care Home (MRPCH), a private institution. On February 6, 1999, he sustained second and third degree burns as a result of being scalded in his bath. It is undisputed that MRPCH did not comply with Chapter 290-5-35-.10(13)(a) of DHR's Rules and Regulations for Personal Care Homes. That regulation provides, in pertinent part: "Heated water provided for [a] resident's use shall not exceed 110 degrees F. at the hot water fixture and a water temperature monitor shall be installed at the hot water fixture."

Gentle was hospitalized and received treatment and rehabilitation, including skin grafts. Upon release from the hospital, he returned to MRPCH, but a short time later, the extent of his burns made it necessary for him to return to the hospital for additional care and treatment. Released from the hospital a second time, Gentle was placed in a nursing home, where care for his burns and rehabilitation continued. On November 28, 1999, Gentle was taken to the emergency room, where he died on the same day. Appellants contend that Gentle died as a result of the February 6, 1999 scalding incident, and for the purpose of reviewing the ruling on the motion to dismiss, we will assume such fact to be true. It is undisputed that DHR made at least four inspections of MRPCH over a period of seven years before Gentle's injury and, on each occasion, found that MRPCH was in violation of the subject regulation, but took no enforcement action.

Appellants filed the underlying action against DHR for negligence in failing to enforce Chapter 290-5-35-.10(13)(a) of the department's Rules and Regulations for Personal Care Homes, when, for years, it had actual knowledge of the safety hazard that the violation created. DHR filed a motion to dismiss for lack of subject matter jurisdiction based on sovereign immunity, arguing that the action was barred by the inspection and licensing exceptions to state liability in the GTCA, set forth, respectively, in OCGA § 50-21-24(8) and (9).

We note that the legislative scheme utilized in adopting the GTCA provides a general waiver of sovereign immunity and provides state liability for the torts of state officers and employees for acts within the scope of their official duties or employment in the same manner as a private individual or entity would be liable under like circumstances. See OCGA § 50-21-23(a). This liability is limited by certain exceptions to the general waiver of sovereign immunity which are outlined in OCGA § 50-21-24. See Dept. of Transp. v. Bishop.¹

The trial court granted DHR's motion to dismiss, resulting in this appeal. "Our review of the grant of a motion to dismiss is de novo. A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of its claim." Project Control Svcs. v. Reynolds.² See Colvin v. United States of America (a court does not have subject matter jurisdiction over an action beyond the limited waiver of sovereign immunity).³

On appeal, appellants argue that the statutory exceptions in OCGA § 50-21-24(8) and (9) are inapplicable in this case. They point out that they are not suing DHR for either failure to inspect or negligence in licensing, but rather for negligence in ignoring an ongoing safety hazard and failing to enforce its own water temperature regulations. They argue further that the duty to enforce the water temperature regulations is a ministerial duty and that DHR is thus subject to suit and liability for damages resulting from its negligent failure to perform that ministerial duty. Appellants rely upon the Ga. Const., Art. I, Sec. II, Par. IX (d), which provides, in part, "[e]xcept as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions." (Emphasis supplied.)

Appellants ignore essential qualifying language in the above provision, that being "[e]xcept as specifically provided by the General Assembly in a State Tort Claims Act." Ga. Const., Art. I, Sec. II, Par. IX(d). See Ridley v. Johns,⁴ a case involving "official" rather than "sovereign" immunity, but which is applicable on this narrow issue. The language of the Georgia Constitution provides that any tort claims act which the legislature might adopt would control any waiver of sovereign immunity. Thus, one must look to the language of the GTCA, OCGA § 50-21-20 et seq., to determine the subject law.

"The Legislature enacted the [GTCA], OCGA § 50-21-20 et seq., in order to balance strict application of the doctrine of sovereign immunity against the need for limited exposure of the State treasury to tort liability." Ga. Ports Auth. v. Harris.⁵ While recognizing "the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity," the legislature also realized that "[i]n acting for the public good and in responding to 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(a). With this in mind, the legislature concluded that "[t]he exposure of the state treasury to tort liability must therefore be limited," and that "[s]tate government should not have the duty to do everything that might be done." Id. Accordingly, the legislature declared it to be "the public policy of this state that the state shall only be liable in tort actions within the limitations of" the Act. Id.

We look first to the GTCA, OCGA § 50-21-23(a), to determine if a general waiver of sovereign immunity applies to this case. The first limitation on the waiver of the state's sovereign immunity is that it applies only to "torts of state officers and employees ... acting within the scope of their official duties or employment." Id. This necessarily means that the state is immune from liability if the tort is that of state officers or employees acting outside the scope of their official duties or employment, or if the tort was committed by a third party. Here, the tort alleged is the failure of DHR to enforce its regulations. Any duty to enforce the regulations, under the facts here, is clearly within the scope of DHR's official duties. However, the duty not to heat the water in excess of 100°F was that of a third party, not that of the state. It was the responsibility of MRPCH, not DHR, to comply with Chapter 290-5-35-.10(13)(a) of the department's Rules and Regulations for Personal Care Homes.

Consideration of the requirement that the act must be that of the state and not of a third party in order for the state to be held liable leads naturally to the conclusion that the state cannot be held liable in this case because its failure to enforce the water temperature regulations was not the proximate cause of Gentle's death.

The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant's conduct and the plaintiff's injury are too remote for the law to countenance recovery. For this reason, before any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon. To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant's conduct and the alleged injury. Conversely, no matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable.

(Citations and punctuation omitted.) Bacon v. Mayor &c. of Savannah.⁶ In this case, the proximate cause of Gentle's death was his being placed into scalding water. Under normal circumstances, any person stepping negligently into scalding water would be responsible for any resulting harm because of the open and obvious risk of scalding water. MRPCH, in assuming the care of Gentle, stood in his place and assumed the responsibility for placing him safely into his bath. It was their responsibility to not place him into a scalding bath. The state, on the other hand, had neither the authority nor the ability to prevent the employees of MRPCH from putting him into the scalding water. Thus, MRPCH's conduct constitutes the intervening proximate cause of Gentle's injuries. As MRPCH placed Gentle into the scalding bath, DHR cannot be held liable for such tortious conduct of nongovernment employees on private property.

Here, DHR is further immune from liability as its conduct falls within exceptions to the waiver of sovereign immunity under the GTCA. Even if a state officer is acting within the scope of his official duties, the state is immune from liability if "`the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24.'" Dept. of Transp. v. Bishop, supra at 58(1), 453...