Marshall v. Mcintosh Cnty. Marshall, s. A14A0639

• Decision Date: 30 May 2014
• Docket Number: Nos. A14A0639,A14A0640.,s. A14A0639
• Citation: 327 Ga.App. 416,759 S.E.2d 269
• Court: Georgia Court of Appeals
• Parties: MARSHALL v. McINTOSH COUNTY. Marshall v. Deverger.

327 Ga.App. 416

759 S.E.2d 269

MARSHALL

v.McINTOSH COUNTY.

Marshall

v.Deverger.

Nos. A14A0639, A14A0640.

Court of Appeals of Georgia.

May 30, 2014.

Martin L. Fierman, Eatonton, Stephen R. Morris, for Appellant.

Richard Keith Strickland, Brunswick, Patrick T. O'Connor, Paul H. Threlkeld, Savannah, Garret Warrington Meader, for Appellees.

BARNES, Presiding Judge.

These companion appeals involve a challenge to the trial court's dismissal of a complaint for wrongful death on the grounds of sovereign and official immunity. Sandra S. Marshall, the surviving spouse and administratrix of the estate of her late husband, sued McIntosh County and the director of its 911 emergency telephone system, Sheila K. Deverger, in her official and individual capacities, alleging that the defendants were liable for refusing to respond to a 911 emergency telephone call. Pursuant to OCGA § 9–11–12(b)(6), the trial court granted the defendants' respective motions to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court concluded that the plaintiff's claims against McIntosh County and Deverger in her official capacity were barred by sovereign immunity, and that her claim against Deverger in her individual capacity was barred by official immunity. The plaintiff now appeals the dismissal of her claims.

For the reasons discussed below, we affirm the dismissal of the plaintiff's claims against McIntosh County and Deverger in her official capacity based on sovereign immunity. But at this early point in the litigation, where there has not yet been any discovery, the trial court erred in dismissing the plaintiff's claim against Deverger in her individual capacity, and we thus reverse the dismissal of that claim.

On appeal, we review de novo the trial court's grant of a motion to dismiss a complaint. South Point Retail Partners, LLC v. North American Properties Atlanta, Ltd., 304 Ga.App. 419, 420, 696 S.E.2d 136 (2010). We construe the complaint in the light most favorable to the plaintiff, with all doubts resolved in her favor. TechBios v. Champagne, 301 Ga.App. 592, 593, 688 S.E.2d 378 (2009).

As alleged in the complaint, plaintiff's late husband, John K. Marshall, began experiencing chest pain while on Blackbeard Island in McIntosh County, Georgia, leading him to call 911 and advise the operator that he was having a heart attack. Marshall's request for aid was communicated to Deverger, who was the director of the McIntosh County 911 emergency telephone system. According to the complaint, Deverger refused to send aid to Marshall and directed McIntosh County emergency medical technicians (“EMTs”) not to respond to Marshall's request for medical service. Marshall never received medical aid from McIntosh County, and he died on Blackbeard Island later that same day.

The complaint alleged that having established a 911 emergency telephone service, McIntosh County had a duty to respond to Marshall's request for medical aid, and that his death was a foreseeable result of Deverger's refusal to send aid to him on Blackbeard Island. The complaint further alleged that Deverger's refusal to send aid to Marshall proximately caused his death and constituted willful and wanton misconduct as well as bad faith, rendering both her and McIntosh County liable for damages under OCGA § 46–5–131(a) of the Georgia Emergency Telephone Number 9–1–1 Service Act of 1977, codified, as amended, at OCGA § 46–5–120 et seq. (the “911 Service Act”).

Case No. A14A0639

1. The trial court dismissed the plaintiff's claim against McIntosh County based on sovereign immunity. On appeal, the plaintiff contends that the trial court erred in dismissing the claim because McIntosh County waived its sovereign immunity under OCGA § 46–5–131(a) of the 911 Service Act by implementing and operating a 911 emergency telephone system and could be held liable for damages under that statutory provision. We disagree.

“Under our Constitution, Georgia counties enjoy sovereign immunity, and can be sued only if they have waived their immunity.” (Citations omitted.) Strength v. Lovett, 311 Ga.App. 35, 38(1), 714 S.E.2d 723 (2011). See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e); OCGA § 36–1–4. Sovereign immunity “can only be waived pursuant to a legislative act which specifically provides that sovereign immunity is waived and describes the extent of such waiver.” (Citation and punctuation omitted.) Bd. of Commrs. of Glynn County v. Johnson, 311 Ga.App. 867, 870(1)(b), 717 S.E.2d 272 (2011). See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e); Woodard v. Laurens County, 265 Ga. 404, 405(1), 456 S.E.2d 581 (1995); Gilbert v. Richardson, 264 Ga. 744, 748(3), 452 S.E.2d 476 (1994). A waiver of sovereign immunity “must be established by the party seeking to benefit from the waiver.” (Citation and punctuation omitted.) Fulton–DeKalb Hosp. Auth. v. Walker, 216 Ga.App. 786, 788(1), 456 S.E.2d 97 (1995). Hence, the burden was on the plaintiff to show that OCGA § 46–5–131 met the criteria for a statutory waiver of a county's sovereign immunity.

OCGA § 46–5–131 was enacted as part of the 911 Service Act, one of the purposes of which was

to establish and implement a cohesive state-wide emergency telephone number 9–1–1 system which will provide citizens with rapid, direct access to public safety agencies by dialing telephone number 9–1–1 with the objective of reducing the response time to situations requiring law enforcement, fire, medical, rescue, and other emergency services.

OCGA § 46–5–121(a). To that end, the 911 Service Act authorizes local governments, subject to certain requirements, to operate or contract for the operation of a 911 emergency telephone system and impose a monthly 911 charge on telephone subscribers to fund the system. See OCGA §§ 46–5–127; 46–5–128; 46–5–133. In turn, OCGA § 46–5–131 sets forth certain exemptions from liability in the operation of a 911 emergency telephone system. That statute provides:

(a) Whether participating in a state-wide emergency 9–1–1 system or an emergency 9–1–1 system serving one or more local governments, neither the state nor any local government of the state nor any emergency 9–1–1 system provider or service supplier or its employees, directors, officers, and agents, except in cases of wanton and willful misconduct or bad faith, shall be liable for death or injury to any person or for damage to property as a result of either developing, adopting, establishing, participating in, implementing, maintaining, or carrying out duties involved in operating the emergency 9–1–1 system or in the identification of the telephone number, address, or name associated with any person accessing an emergency 9–1–1 system.

(b) No local government of the State of Georgia shall be required to release, indemnify, defend, or hold harmless any emergency 9–1–1 system provider from any loss, claim, demand, suit, or other action or any liability whatsoever which arises out of subsection (a) of this Code section, unless the local government agrees or has agreed to assume such obligations.

(Emphasis supplied.)

We conclude that OCGA § 46–5–131(a) does not meet the strict criteria for a statutory waiver of sovereign immunity, as this Court explained in Hendon v. DeKalb County, 203 Ga.App. 750, 756–757(2)(c), 417 S.E.2d 705 (1992) (physical precedent only). Although Hendon is not binding precedent because one judge concurred in the judgmentonly, see Court of Appeals Rule 33(a), ¹ we nevertheless find its reasoning persuasive. See Pechin v. Lowder, 290 Ga.App. 203, 205, 659 S.E.2d 430 (2008) (“[P]hysical precedent may be cited as persuasive authority, just as foreign case law or learned treatises may be persuasive.”) (citation and punctuation omitted). See Amusement Sales v. State of Ga., 316 Ga.App. 727, 736(2), 730 S.E.2d 430 (2012) (treating physical precedent as persuasive authority). Indeed, Hendon was cited with approval by our Supreme Court in Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 188, 674 S.E.2d 894 (2009), where the Supreme Court held that a similarly worded statute did not create a statutory waiver of a county's sovereign immunity. See id. at 187–188, 674 S.E.2d 894 (concluding that the Community Service Act does not create a statutory waiver of a county's sovereign immunity).² Accordingly, consistent with the reasoning of Hendon, 203 Ga.App. at 756–757(2)(c), 417 S.E.2d 705, we conclude that the plaintiff failed to carry her burden of showing that OCGA § 46–5–131(a) statutorily waived McIntosh County's sovereign immunity, and the trial court therefore committed no error in dismissing her claim against the County. See Currid, 285 Ga. at 187–188, 674 S.E.2d 894. See also Norton v. Cobb, 284 Ga.App. 303, 305–306(1), 643 S.E.2d 803 (2007) (all three judges concurring in Division 1) (concluding that Recreational Property Act does not create a statutory waiver of a county's sovereign immunity).³

Case No. A14A0640

2. The trial court also dismissed the plaintiff's claim against Deverger in her official capacity based on sovereign immunity, and the plaintiff likewise challenges that ruling on appeal. A lawsuit against a county official in her official capacity “is considered a suit against the county, and the [official] is entitled to assert any defense or immunity that the county could assert, including sovereign immunity.” Strength, 311 Ga.App. at 38(1), 714 S.E.2d 723. See Cameron v. Lang, 274 Ga. 122, 126(3), 549 S.E.2d 341 (2001). As explained supra in Division 1, the sovereign immunity of McIntosh County has not been waived in this case. Consequently, the trial court did not err in dismissing the plaintiff's claim against Deverger in her official capacity based on sovereign immunity.

3. Lastly, the trial court dismissed the plaintiff's claim against Deverger in her individual capacity based on official immunity. We agree with the plaintiff that the trial court erred in dismissing her claim...