Nichols v. Prather

• Decision Date: 16 July 2007
• Docket Number: No. A07A0148.,A07A0148.
• Parties: NICHOLS et al. v. PRATHER et al.
• Court: Georgia Court of Appeals

286 Ga. App. 889

650 S.E.2d 380

NICHOLS et al. v. PRATHER et al.

No. A07A0148.

Court of Appeals of Georgia.

July 16, 2007.

Reconsideration denied July 31, 2007.

Hall, Booth, Smith & Slover, W. Scott Henwood, Atlanta, Phillip E. Friduss, for Appellant.

Weaver & Weaver, George W. Weaver, Atlanta, Davis, Kreitzer, Kemp, Joiner & Melton, John W. Davis, Jr., Rossville, F. Gregory Melton, Edmond & Jones, Craig T. Jones, Landrum & Friduss, Ellen L. Ash, Atlanta, David A. Webster, for appellees.

Thurbert E. Baker, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., Loretta L. Pinkston, Devon Orland, Sr. Asst. Attys. Gen., amici curiae.

ELLINGTON, Judge.

Pickens County Deputy Sheriff Nicholas Nichols, Sheriff Billy Wofford, and Pickens County appeal from the denial of their motion to dismiss or, in the alternative, for summary judgment in this personal injury and wrongful death case. The appellants contend that the trial court erred in denying their motion, arguing that the Pickens County Sheriff's Department is a state agency or department and, therefore, the department and its employees are entitled to the protections of the Georgia Tort Claims Act ("GTCA"), OCGA § 50-21-20 et seq. They also argue that they were entitled to other statutory immunities. For the following reasons, we reverse the denial of summary judgment to Pickens County, but affirm the remainder of the court's judgment.

"On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law." (Citation omitted.) Brown v. Taylor, 266 Ga.App. 176, 596 S.E.2d 403 (2004). So viewed, the evidence showed the following relevant facts.

Just after midnight on the morning of July 7, 2002, the decedent, Terri Prather, walked from the Blue Rodeo Café in Jasper toward her car, which was parked in a lot on the other side of the highway. There was no crosswalk in the immediate area. At the same time, Pickens County Sheriff's Deputy Nicholas Nichols was driving down the highway in a marked patrol car. Deputy Nichols was driving approximately 75 mph in a 50 mph speed zone, was traveling in the center turn lane, and had not activated his siren or blue lights. According to Deputy Nichols, by the time he saw Ms. Prather in the highway in front of his car, he was unable to avoid striking her. There is no evidence that Deputy Nichols applied his brakes before the collision. Ms. Prather died as a result of the impact. The title to Deputy Nichols' patrol car listed the Pickens County Sheriff's Department as the owner, and the county carried liability insurance on the car.

Ms. Prather's widower, individually and as administrator of the decedent's estate, filed a personal injury and wrongful death suit against Deputy Nichols, individually and in his official capacity as a Pickens County Deputy Sheriff. He also sued the Pickens County Sheriff, Billy Wofford, in his official capacity under a theory of respondeat superior, and the county, alleging that Deputy Nichols was acting as the county's agent. The appellants moved to dismiss the suit or, in the alternative, for summary judgment, arguing that Deputy Nichols and Sheriff Wofford were immune from liability under the GTCA, that the county could not be held liable for Sheriff Wofford's or Deputy Nichols' acts, that the county had not waived its sovereign immunity, and that Deputy Nichols was entitled to official immunity. After a hearing,¹ the trial court denied the motion. The trial court issued a certificate of immediate review, and this Court granted the appellants' application for interlocutory review.

1. The appellants claim that the Pickens County Sheriff's Department is a state department or agency and, therefore, the department and its employees are subject to the provisions of the GTCA.² They argue that the sheriff and his employees act on behalf of the state, not the county, and that the sheriff's department is a separate entity from the county. The appellants argue that, as a result, the court should have granted their motion for summary judgment because Prather failed to give the required ante litem notice for claims that are subject to the GTCA. See OCGA § 50-21-26 (notice provisions for a claim against the state). In addition, the appellants argue that Deputy Nichols, as an employee of the sheriff's department, cannot be held individually liable under the GTCA, so the trial court should have granted summary judgment on the claim against Deputy Nichols in his individual capacity. See OCGA § 50-21-25(a), (b) (state employees who commit torts while acting within the scope of their employment are not personally liable for their torts, and suits alleging torts by state employees must name the employer as the defendant, not the employee).

In claiming that the Pickens County Sheriff's Department, Sheriff Wofford, and Deputy Nichols are state entities, officers, or employees subject to the GTCA, the defendants primarily rely on this Court's decision in Brown v. Dorsey, 276 Ga.App. 851, 625 S.E.2d 16 (2005), in which this Court held that DeKalb County was not liable under 42 USC § 1983³ for Sheriff Sidney Dorsey's coordination of the murder of Sheriff-elect Derwin Brown.⁴ Brown states that, in order to state a claim against DeKalb County under § 1983, Brown's widow had to allege that a "County policymaker's acts or omissions, done under color of state law," resulted in a deprivation of Brown's federal civil rights.⁵ Id. at 853, 625 S.E.2d 16. In other words, in order to recover under § 1983, she had to prove that, "through a deliberate and official policy, the local governmental entity was the moving force behind the constitutional tort." (Footnote omitted.) Id. We then noted that sheriffs are elected constitutional officers, not employees of county commissions, and, therefore, counties lack control over their respective sheriffs' departments and have no authority to alter the departments' policies, even if those policies are unconstitutional. Id. at 855(1), 625 S.E.2d 16. We held that the question of whether a sheriff is a "policy-maker" for the county for purposes of holding the county liable for his actions under § 1983 must be assessed in light of the particular function in which he was engaged when taking such actions and by the allegations of the complaint. Id. at 856(1), 625 S.E.2d 16. Ultimately, we determined that Dorsey was not acting as a "policymaker" for DeKalb County when he used his department's personnel and resources to kill Derwin Brown, so the county could not be held liable for Dorsey's violation of Brown's constitutional rights under § 1983. Id. at 856-857(1), 625 S.E.2d 16.

The appellants argue that, pursuant to Brown and the Eleventh Circuit cases, Georgia's sheriffs are always state actors, not county actors. Brown and the federal cases are inapplicable to the instant case, however, because they involved the issue of immunity from liability for a sheriff's violations of the federal civil rights statute, 42 USC § 1983. In contrast, this case involves the sheriff's liability under the doctrine of respondeat superior for his deputy's negligence under Georgia's tort laws, as well as the county's liability under an agency theory. Further, contrary to the appellants' arguments, the cases upon which they rely do not hold that Georgia's sheriffs are always state officers, but stand for the proposition that, depending on the circumstances, sheriffs may be deemed state agents for the purpose of determining liability for constitutional violations under § 1983. None of the cases hold that Georgia's sheriffs and their employees are "state officer[s] or employee[s]" under the GTCA.

Instead, under the plain language of the Georgia Constitution and the GTCA, sheriffs are county officials, not state officers or employees. The Georgia Constitution specifically states that sheriffs are "county officers" who are elected by the voters of their respective counties, not through a statewide vote. Ga. Const. of 1983, Art. IX, Sec. I, Par. III(a). Further, the GTCA's definition of "State" specifically excludes counties and "other units of local government." OCGA § 50-21-22(5). It follows that the GTCA's definition of "State officer or employee" excludes county officers and employees, and "State government entity" excludes county agencies and departments. OCGA § 50-21-22(6), (7).

Moreover, since issuing our decision in Brown, this Court has decided Freeman v. Barnes, 282 Ga.App. 895, 640 S.E.2d 611 (2006), in which it considered whether the Fulton County sheriff was both a state and county employee for the purposes of the Workers' Compensation Act, OCGA § 34-9-1 et seq. In Freeman, this Court distinguished Brown and found that the sheriff was a county officer under the Act, because sheriffs are defined as county officers in the Georgia Constitution, county officers are paid solely and exclusively from county treasuries, and each county commission funds its respective sheriff's department. Id. at 899-900(2), 640 S.E.2d 611. Similarly, in this case, it is undisputed that Pickens County paid the salaries of the sheriff and his employees, provided their health insurance and retirement benefits, and funded the sheriff's department.

Accordingly, based upon the Georgia Constitution, the GTCA, and Freeman, we conclude that Sheriff Wofford is a county official, that neither the sheriff nor his employees are "[s]tate officer[s] or employee[s]" under the GTCA, and that the sheriff's department is not a "state government entity" under the GTCA. Therefore, the appellants are not entitled to summary judgment on the basis that Prather failed to comply with the notice provisions of the GTCA.

2. Having decided that the GTCA does not apply in this case, we turn to the issue of...