Pelham v. Bd. of Regents of the Univ. Sys. of Ga.

• Decision Date: 20 May 2013
• Docket Number: No. A13A0027.,A13A0027.
• Citation: 321 Ga.App. 791,743 S.E.2d 469
• Parties: PELHAM v. BOARD OF REGENTS OF The UNIVERSITY SYSTEM OF GEORGIA.
• Court: Georgia Court of Appeals

321 Ga.App. 791

743 S.E.2d 469

PELHAM

v.BOARD OF REGENTS OF The UNIVERSITY SYSTEM OF GEORGIA.

No. A13A0027.

Court of Appeals of Georgia.

May 20, 2013.

Ney, Hoffecker & Erck, Charles Edgar Hoffecker, Atlanta, for Appellant.

Samuel S. Olens, Atty. Gen., G. Michael Banick, Sharon Priddy Horne, Asst. Attys. Gen., for Appellee.

BARNES, Presiding Judge.

Jerome Pelham brought this action against the Board of Regents of the University System of Georgia (“Board of Regents”) seeking damages for personal injuries he suffered during football practice at Georgia Southern University (“Georgia Southern”) when the head coach allegedly ordered Pelham and the other players to fight each other during spring practice. The trial court dismissed Pelham's complaint, concluding that his claims against the Board of Regents fell under the assault and battery exception to the Georgia Tort Claims Act, OCGA § 50–21–20 et seq. (“GTCA”), and thus were barred by the doctrine of sovereign immunity. For the reasons that follow, we affirm the trial court's order of dismissal.

We review de novo a trial court's grant of a motion to dismiss on sovereign immunity grounds, bearing in mind that “[t]he party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.” Bonner v. Peterson, 301 Ga.App. 443, 687 S.E.2d 676 (2009). The allegations of Pelham's complaint, which the trial court accepted as true in ruling on the motion to dismiss,¹ are as follows.

During the 2007–2008 academic year, Pelham was a student enrolled at Georgia Southern and a member of the varsity football team. During his recruitment to play football at the school, Pelham had been informed that he would be eligible to earn a scholarship through his participation and membership on the football team.

In late March 2008, Pelham and the rest of the Georgia Southern football team were participating in spring practice in full pads. The head football coach, Christopher Hatcher, instructed the players to line up in two single file lines facing each other. Coach Hatcher then paired specific players across from one another, often pairing mid-level or smaller players against larger first-string players. After lining up the players, Coach Hatcher announced that he wanted to see “who was tough enough to be on the team” and earn a scholarship. Coach Hatcher informed the players that he planned to walk down the line and, upon the blowing of his whistle, the pair of players in front of him were to fight each other. He emphasized that their membership on the team and eligibility for scholarships were dependent on his scrutiny of their performance in the fight.

Coach Hatcher then moved down the line and closely observed each pair of players fight each other upon his blowing of the whistle. There were no rules to the fights, and players were not restricted to contact allowed by the rules of football. Players were permitted to throw punches to the head and body of the other player with whom they were paired; hold and pull the face mask of the other player; grab the jersey of the other player; throw the other player to the ground by pulling his face mask; and trip or “hip toss” the other player. Coach Hatcher told his subordinate coaches not to interfere in the fights and informed the players that they were allowed to stop fighting only when he blew his whistle and moved on to the next pairing.

Coach Hatcher approached Pelham and the player with whom he was paired, blew his whistle, and instructed them to start fighting. Concerned that they would be cut from the team or lose their opportunity for a scholarship if they did not participate, the two players physically engaged each other. Pelham, who played the position of defensive end, placed his hands on the shoulders of the other player in the manner typical of a defensive lineman attempting to control an offensive lineman during a game situation. However, the other player grabbed Pelham by the face mask, jerked Pelham's head from side to side, grabbed Pelham by the jersey, and twisted Pelham to the ground over the player's leg by tripping him, all of which would have constituted penalties under the rules of football. Pelham fell awkwardly with the other player landing on top of him and his outstretched right leg, resulting in severe, permanent injuries to his right knee and leg.

Pelham subsequently commenced this action against the Board of Regents seeking recovery for his personal injuries sustained at the football practice. ² He asserted claims for negligence and negligence per se against the Board under a theory of respondeat superior, contending that Coach Hatcher's instruction for the players to fight each other at the football practice violated Georgia's anti-hazing law codified at OCGA § 16–5–61. Pelham further asserted that the Board of Regents was liable for the negligent training and supervision of Coach Hatcher and other coaching staff.

The Board of Regents answered and filed a motion to dismiss the complaint based on the doctrine of sovereign immunity, contending that Pelham's claims were barred by the assault and battery exception to the waiver of sovereign immunity contained in the GTCA. The trial court granted the motion to dismiss, finding that the act that caused Pelham's underlying loss constituted an assault and battery. Pelham now appeals from the trial court's order of dismissal.

1. Pelham contends that the trial court erred in dismissing his negligence and negligence per se claims because they were predicated on Georgia's anti-hazing law, OCGA § 16–5–61, and thus were not barred by sovereign immunity. We disagree because OCGA § 16–5–61 does not create a statutory waiver of the Board of Regents' sovereign immunity.

Under the Georgia Constitution, sovereign immunity from suit extends to all state departmentsand agencies unless properly waived through an act passed by the General Assembly. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). “The Board of Regents is the state agency vested with the governance, control, and management of the University System of Georgia,” and, therefore, is entitled to sovereign immunity from suit unless the legislature has waived its immunity. (Punctuation and footnote omitted.) Bd. of Regents of the Univ. Sys. of Ga. v. Ruff, 315 Ga.App. 452, 456(2), 726 S.E.2d 451 (2012).

Sovereign immunity is waived by a legislative act only if the statutory language “specifically provides that sovereign immunity is ... waived and the extent of such waiver.” Gilbert v. Richardson, 264 Ga. 744, 748(3), 452 S.E.2d 476 (1994), quoting Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). See Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 186, 674 S.E.2d 894 (2009). “In this regard, implied waivers of governmental immunity should not be favored.” (Citation and punctuation omitted.) Currid, 285 Ga. at 186, 674 S.E.2d 894. See City of Atlanta v. Gilmere, 252 Ga. 406, 409, 314 S.E.2d 204 (1984).

Georgia's anti-hazing law, OCGA § 16–5–61, provides:

(a) As used in this Code section, the term:

(1) “Haze” means to subject a student to an activity which endangers or is likely to endanger the physical health of a student, regardless of a student's willingness to participate in such activity.

(2) “School” means any school, college, or university in this state.

(3) “School organization” means any club, society, fraternity, sorority, or a group living together which has students as its principal members.

(4) “Student” means any person enrolled in a school in this state.

(b) It shall be unlawful for any person to haze any student in connection with or as a condition or precondition of gaining acceptance, membership, office, or other status in a school organization.

(c) Any person who violates this Code section shall be guilty of a misdemeanor of a high and aggravated nature.

Plainly, OCGA § 16–5–61, a criminal statute, does not evince a clear legislative intent to allow civil damages suits to be brought against the state for hazing violations. “Nowhere in [OCGA § 16–5–61] has the Legislature specifically provided that sovereign immunity has been waived and the extent of such waiver,” and, therefore, “no waiver can be shown.” (Punctuation and footnote omitted.) Ga. Dept. of Corrections v. James, 312 Ga.App. 190, 194(1), 718 S.E.2d 55 (2011). Hence, Pelham's only potential avenue of recovery was through the GTCA, which provides “the exclusive remedy for any tort committed by a state officer or employee.” OCGA § 50–21–25(a). Compare Fulton County v. Colon, 316 Ga.App. 883, 884–885(1), 730 S.E.2d 599 (2012) (private right of action provided by Georgia's whistleblower statute, OCGA § 45–1–4, constitutes a waiver of the state's sovereign immunity independent of the waiver in the GTCA).

2. Pelham further maintains that the trial court erred in concluding that he could not proceed with his negligence and negligence per se claims under the waiver of sovereign immunity contained in the GTCA because the assault and battery exception applied. Again, we disagree.

The GTCA provides for a waiver of the state's sovereign immunity for torts committed by state officers and employees acting within the scope of their official duties or employment, “provided, however, that the state's sovereign immunity is waived subject to all exceptions and limitations set forth in this article.” OCGA § 50–21–23(a). In OCGA § 50–21–24, the General Assembly has set forth thirteen exceptions to the waiver of sovereign immunity contained in the GTCA. If a tort claim falls within the scope of any of these exceptions, it is barred by sovereign immunity. See OCGA § 50–21–24 (“The state shall have no liability for losses resulting from [any of the enumeration exceptions.]”).

Included among the exceptions to the state's waiver of sovereign immunity is the “assault and battery” exception, which provides that “[t]he state shall have no liability for losses resulting from ... [a]ssault [and] battery.” OCGA...