McBrayer v. Scarbrough

• Decision Date: 03 June 2022
• Docket Number: A22A0002
• Citation: 364 Ga.App. 112,874 S.E.2d 146
• Parties: MCBRAYER et al. v. SCARBROUGH.
• Court: Georgia Court of Appeals

364 Ga.App. 112

874 S.E.2d 146

MCBRAYER et al.

v.SCARBROUGH.

A22A0002

Court of Appeals of Georgia.

June 3, 2022

Craig A. Webster, for Appellant.

Jason Christopher Waymire, Terry Eugene Williams, Lawrenceville, for Appellee.

Miller, Presiding Judge.

In this wrongful death action, Sherrie McBrayer appeals from the trial court's order granting judgment on the pleadings in favor of the Sheriff of Tift County, Georgia, Gene Scarbrough. On appeal, McBrayer argues that the judgment was error because (1) the trial court improperly determined that Tift County did not waive sovereign immunity by examining whether the injury arose from the deputies’ use of the patrol car "as a vehicle" rather than whether the event is covered under the County's insurance; and (2) the trial court erred in ruling that the issue of insurance coverage was irrelevant to whether sovereign immunity had been waived. We conclude that the trial court properly ruled that Tift County did not waive sovereign immunity in this case, and we therefore affirm.

"On appeal, we review de novo the trial court's decision on a motion for judgment on the pleadings, and we construe the complaint in a light most favorable to the appellant, drawing all reasonable inferences in [her] favor." (Citation omitted.) Hewell v. Walton County , 292 Ga. App. 510, 510-511, 664 S.E.2d 875 (2008).

So viewed, the complaint alleges that, in April 2019, Tift County deputies tased and apprehended James Aaron McBrayer. The decedent's hands and feet were restrained, and the deputies allegedly placed him horizontally onto the back seat of a patrol car before leaving him unattended. The decedent then passed away while left unattended in the patrol car, and an autopsy revealed that he died as a result of excited delirium

which was secondary to being tased. McBrayer, individually and as the decedent's surviving spouse and on behalf of the decedent's children, filed this wrongful death action against Scarbrough in his official capacity. She claimed that the incident arose from the deputies’ negligent use of a motor vehicle, as contemplated by OCGA § 36-92-2, and that the patrol car was a "covered vehicle," as that phrase is used in OCGA §§§ 33-24-51 ; 36-92-1; and 36-92-2. The complaint alleged that the deputies were negligent because (1) they placed the decedent face down in the back seat of the patrol car after having applied extreme force and restraint on him and left him unattended and unsupervised; and (2) they used the rear passenger door to hold a cobble strap that was attached to the decedent's feet. Scarbrough filed a motion for judgment on the pleadings, contending that sovereign immunity barred the claim, and the trial court granted the motion. The trial court found that the allegations regarding the decedent's positioning and restraint in the patrol car did not relate to the use of the patrol car "as a vehicle" and that there had been no waiver of sovereign immunity for the negligent use of an insured motor vehicle. McBrayer appealed to the Supreme Court of Georgia, which then transferred the appeal to this Court.

1. In her first enumeration of error, McBrayer urges that the trial court improperly determined that Tift County did not waive sovereign immunity by examining whether the injury arose from the deputies’ use of the patrol car "as a vehicle" rather than whether the event is covered under the County's insurance. We conclude that the trial court correctly found that Tift County did not waive sovereign immunity.

Under our Constitution, Georgia counties enjoy sovereign immunity, and can be sued only if they have waived their immunity. A lawsuit against a [sheriff] in [his] official capacity is considered a suit against the county, and the [sheriff] is entitled to assert any defense or immunity that the county could assert, including sovereign immunity. The question, then, is whether the sovereign immunity of [Tift] County has been waived with respect to the claim asserted against [Scarbrough] in this case.

(Citation omitted.) Ankerich v. Savko , 319 Ga. App. 250, 252 (1), 734 S.E.2d 805 (2012). "[W]hether a governmental defendant has waived its sovereign immunity is a threshold issue[,]" and "[a]ny waiver of sovereign immunity must be established by the party seeking to benefit from that waiver." (Citations omitted.) Wingler v. White , 344 Ga. App. 94, 99-100 (1), 808 S.E.2d 901 (2017).

Turning to the applicable statutes,

OCGA § 33-24-51 authorizes a county to secure insurance to cover liability for damages on account of bodily injury, death, and property damage "arising by reason of the county's ownership, maintenance, operation, or use of any motor vehicle" and provides that the county's sovereign immunity "for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in OCGA § 36-92-2. OCGA § 36-92-2 in turn provides for the monetary limits of the waiver."

(Punctuation omitted.) McCobb v. Clayton County , 309 Ga. App. 217, 218 (1) (a), 710 S.E.2d 207 (2011). The decision on whether "an event arises from the ‘use’ of a motor vehicle depends largely on the circumstances, and a bright-line definition is elusive. But statutes that provide for a waiver of sovereign immunity ... are in derogation of the common law and thus are to be strictly construed against a finding of waiver. " (Citations and punctuation omitted; emphasis supplied.) Bd. of Commrs. of Putnam County v. Barefoot , 313 Ga. App. 406, 408-409 (1), 721 S.E.2d 612 (2011). On the occasions that we have found a waiver of sovereign immunity for the use of a motor vehicle, the vehicle was "actively in use when the injury arose," and we have further explained that "the question to be answered is whether the injury originated from, had its origin in, grew out of, or flowed from the use of the motor vehicle as a vehicle. " (Citation omitted; emphasis in original.) Id. at 409 (1), 721 S.E.2d 612.

For instance, in Gish v. Thomas , 302 Ga. App. 854, 691 S.E.2d 900 (2010), a deputy transported the decedent to the Clayton County jail following a court appearance. Id. at 856, 691 S.E.2d 900. The decedent, who was previously determined to be potentially suicidal, was seated in the rear of the patrol car. Id. at 855-856, 691 S.E.2d 900. Upon arriving and parking at the jail, the deputy removed his gun and placed it on the front passenger seat. Id. at 856-857, 691 S.E.2d 900. When the deputy exited the vehicle to remove the decedent, the decedent retrieved the deputy's gun and shot himself. Id. at 857, 691 S.E.2d 900. This Court found that the decedent's suicide did not relate to the use of a patrol car "as a vehicle," and rather, the vehicle was essentially being used as a holding cell. Id. at 861 (2), 691 S.E.2d 900. This Court arrived at a similar result in Tittle v. Corso , 256 Ga. App. 859, 569 S.E.2d 873 (2002). In that case, while a deputy was investigating a crime scene, he shone the headlights and spotlight of the patrol car onto the plaintiff. Id. at 860, 569 S.E.2d 873. Later, the deputy allegedly "slammed" the plaintiff on the hood of the patrol car. Id. at 861, 569 S.E.2d 873. We ultimately determined that the plaintiff's injuries were not caused by the deputy's "use" of the patrol car for purposes of sovereign immunity. Id. at 864 (2), 569 S.E.2d 873.

Both Gish and Tittle are eminently instructive in this case, and we hold that the patrol car was not in "use" as that term is contemplated by OCGA § 36-92-2, and therefore Tift County did not waive sovereign immunity. According to the complaint, the deputies were negligent in allegedly placing the decedent face down in the patrol car, using the door to hold a cobble strap that was fastened to his feet, and leaving him unattended. Insofar as the deputies were utilizing the patrol car to confine and/or restrain the decedent, the car was not being used as a vehicle. Compare McElmurray v. Augusta-Richmond County , 274 Ga. App. 605, 613 (2), 618 S.E.2d 59 (2005) (motor vehicles were "used" because they allegedly spread sludge on the plaintiffs’ land); Mitchell v. City of St. Marys , 155 Ga. App. 642, 644 (2), 271 S.E.2d 895 (1980) (truck was used "as a motor vehicle" where it contained an insect defogging device, and the government employee backed up the truck and sprayed chemicals on the plaintiff).

Additionally, the deputies’ act of "loading" the decedent into the patrol car does not necessarily mean that the vehicle was "actively in use" in this case for purposes of sovereign immunity. This, too, is a fact-specific inquiry. And, the complaint here plainly and affirmatively alleges that the deputies placed the decedent in the vehicle, closed the door, and then left him unattended. There is no indication from the complaint that the car was running; that any deputy was seated in the car; that any deputy was poised to start the car or transport the decedent to any location; or that there are any factual allegations remotely suggesting that the deputies were "actively" using the patrol car. See Saylor v. Troup County , 225 Ga. App. 489, 490, 484 S.E.2d 298 (1997) (concluding that the injury did not arise out of "use" of motor vehicle, where injury occurred when county "van was inoperative, parked off the roadway with its engine not engaged"). Compare Cawthon v. Waco Fire & Cas. Ins. Co. , 183 Ga. App. 238, 240-241, 358 S.E.2d 615 (1987) (explaining, for insurance purposes, that whether the loading and unloading of children constituted the "use" of a school bus was fact-specific and that the bus was "used" where a child was crossing the road while the bus was "standing guard with its lights flashing, its stop signals activated[,] and all visual signals functioning").¹ Accordingly, to the extent that the decedent's injuries stemmed from his being loaded into the patrol car, the vehicle was not in "use" for purposes of waiving sovereign immunity.

Although McBrayer claims that this Court's precedent has impermissibly added language to the...