2021 Georgia Code
Title 50 - State Government
Chapter 21 - Waiver of Sovereign Immunity as to Actions Ex Contractu; State Tort Claims
Article 2 - State Tort Claims
§ 50-21-22. Definitions

As used in this article, the term:

1. "Claim" means any demand against the State of Georgia for money only on account of loss caused by the tort of any state officer or employee committed while acting within the scope of his or her official duties or employment.
2. "Discretionary function or duty" means a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.
3. "Loss" means personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.

   (3.1) "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

4. "Person" means a natural person, corporation, firm, partnership, association, or other such entity.
5. "State" means the State of Georgia and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions, but does not include counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities.
6. "State government entity" means a state office, agency, authority, department, commission, board, division, instrumentality, or institution.
7. "State officer or employee" means an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state. The term state officer or employee also includes any natural person who is a member of a board, commission, committee, task force, or similar body established to perform specific tasks or advisory functions, with or without compensation, for the state or a state government entity, and any natural person who is a volunteer participating as a volunteer, with or without compensation, in a structured volunteer program organized, controlled, and directed by a state government entity for the purposes of carrying out the functions of the state entity. This shall include any health care provider and any volunteer when providing services pursuant to Article 8 of Chapter 8 of Title 31. An employee shall also include foster parents and foster children. Except as otherwise provided for in this paragraph, the term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity.

(Code 1981, §50-21-22, enacted by Ga. L. 1992, p. 1883, § 1; Ga. L. 1994, p. 1717, §§ 9, 10; Ga. L. 1998, p. 128, § 50; Ga. L. 2005, p. 1493, § 5/HB 166.)

- For survey article on trial practice and procedure for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 439 (2003). For annual survey of Administrative Law, see 57 Mercer L. Rev. 1 (2005).

JUDICIAL DECISIONS

Applicability of constitutional immunity.

- See Bitterman v. Atkins, 217 Ga. App. 652, 458 S.E.2d 688 (1995).

- Because the General Assembly has not waived immunity of counties, the trial court did not err in ruling that a claim against a county unified government was barred by sovereign immunity. Swan v. Johnson, 219 Ga. App. 450, 465 S.E.2d 684 (1995).

- State had a duty to provide youth in the state's custody with medical care and treatment, but the details of that care were discretionary and therefore subject to immunity under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq. Edwards v. Department of Children & Youth Servs., 236 Ga. App. 696, 512 S.E.2d 339 (1999).

Scope of the discretionary function exception of the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., must be determined by the definition in O.C.G.A. § 50-21-22 which is more narrowly drawn than the definition created by preexisting case law. Brantley v. Department of Human Resources, 271 Ga. 679, 523 S.E.2d 571 (1999).

State board's acts in procedures used in terminating a state employee were discretionary acts. Bd. of Pub. Safety v. Jordan, 252 Ga. App. 577, 556 S.E.2d 837 (2001).

When the ward, who was diagnosed with paranoid schizophrenia, walked into traffic on an interstate and was struck by a tractor trailer, the Georgia Department of Human Services' motion to dismiss was properly granted as the plaintiffs' claims were barred by sovereign immunity because, under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., the ultimate determination of whether to take the ward into custody was a discretionary one, involving issues of policy. Garrett v. Dep't of Human Servs., 355 Ga. App. 714, 845 S.E.2d 742 (2020).

- Georgia Department of Transportation's decision of when and where to inspect for road hazards during and following a rain event was not a policy decision requiring the exercise of discretion within the scope of O.C.G.A. § 50-21-24(2), although it involved a "judgment call" by DOT employees, and therefore the DOT did not have immunity from a suit stemming from a driver's hydroplaning in water on the road and drowning in a pond caused by a backed up storm drain. Ga. DOT v. Miller, 300 Ga. App. 857, 686 S.E.2d 455 (2009).

- Decision of state employees on the type of emergency medical care to provide incarcerated juveniles does not fall within the discretionary function exception to the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq. Edwards v. Georgia Dep't of Children & Youth Servs., 271 Ga. 890, 525 S.E.2d 83 (2000).

County employees fall outside the scope of the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., and the employees' actions are not subject to the Act's definition of discretionary function that is found in O.C.G.A. § 50-21-22(2). Cooper v. Paulding County Sch. Dist., 265 Ga. App. 844, 595 S.E.2d 671 (2004); Brown v. Taylor, 266 Ga. App. 176, 596 S.E.2d 403 (2004).

In an action under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., against a state hospital for negligent acts occurring in Richmond County, venue was proper in DeKalb County, where the patients underwent multiple corrective surgeries allegedly arising out of the alleged negligence because under O.C.G.A. §§ 50-21-22(3) and50-21-28, a tort action could be brought against the state in the county where economic loss, pain and suffering, mental anguish, and other elements of actual damages occurred. Bd. of Regents of the Univ. Sys. of Ga. v. Jordan, 335 Ga. App. 703, 782 S.E.2d 809 (2016).

Probation officer, employed by the county sheriff's office, who signed an arrest warrant for the nonpayment of a traffic fine after the arrestee had actually paid the fine, was not entitled to immunity under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., because the Act specifically excluded counties, and the officer was acting on the county's behalf and not on behalf or in the service of the state. Washington v. Rivera, 939 F.3d 1239 (11th Cir. 2019).

- In a tort action by a state prisoner held in a county jail under contract with the Department of Corrections for injuries sustained while working on a highway under the supervision of a county employee, summary judgment in favor of the department was precluded by fact issues as to whether the employee was an agent of the department or an independent contractor. Williams v. Georgia Dep't of Cors., 224 Ga. App. 571, 481 S.E.2d 272 (1997).

Full-time Army officer being paid by the United States Army and assigned to instruct ROTC courses at the defendant college was not a state officer or employee as the college had no right to control the time, manner, and method of the Army's performance of the contract pursuant to which the officer taught. Armstrong State College v. McGlynn, 234 Ga. App. 181, 505 S.E.2d 853 (1998).

Corporate child care institution and the institution's employee were not an employee of the state for purposes of the Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20 et seq.; therefore, there was no waiver of sovereign immunity by the state in regard to the GTCA when a juvenile that the Georgia Department of Human Resources and the Georgia Department of Juvenile Justice placed in the child care institution was accidentally killed. Ga. Dep't of Human Res. v. Johnson, 264 Ga. App. 730, 592 S.E.2d 124 (2003).

In a state employee's suit asserting defamation against a state director, the trial court properly granted the director summary judgment and dismissed the complaint as the records established that the director was a state employee at the time the alleged statements were made and, therefore, any libelous or slanderous statements were made by the director within the scope of the director's official duties and, thus, the director was immune from liability. Ford v. Caffrey, 293 Ga. App. 269, 666 S.E.2d 623 (2008).

College and a department were entitled to sovereign immunity in a claim seeking damages arising from the purchase of a nail primer product at the college because there was no showing of a waiver of a sovereign immunity under O.C.G.A. § 50-21-23(a); among other things, the vendor of the product was an independent contractor, and thus was not a state officer or employee under O.C.G.A. § 50-21-22(7). The instructors of the college, who neither sold nor manufactured the nail kit containing the nail primer, assumed no duty to provide warnings, the complaint included no allegations of negligent supervision, claims that the college instructors were negligent in the instructor's own right were barred by contrary binding admissions in judicio, and without evidence that the college instructors retained control over the vendor's work, there was no claim that the instructors had or breached a duty to supervise. Coosa Valley Tech. College v. West, 299 Ga. App. 171, 682 S.E.2d 187 (2009), cert. denied, No. S09C1954, 2010 Ga. LEXIS 9 (Ga. 2010).

Court of appeals erred by reversing the trial court's denial of a community service board's motion to dismiss a parent's wrongful death action, which alleged that the board was liable for a health care workers' negligent acts, because borrowed servants were included within the definition of an "employee" for purposes of the Georgia Tort Claims Act, O.C.G.A. § 50-21-22(7); encompassed within the waiver of immunity under the Act, O.C.G.A. § 50-21-23(a), for all state employees acting within the scope of their official duties is a concomitant specific waiver of immunity for torts committed by borrowed servants acting within the scope of their official duties on behalf of the state because by electing not to include a separate definition of the term "employee" within the Act, the General Assembly intended courts to apply the legal definition of that term as developed under common law and existing jurisprudence. Summerlin v. Ga. Pines Cmty. Serv. Bd., 286 Ga. 593, 690 S.E.2d 401 (2010).

Court of appeals erred by reversing the trial court's denial of a community service board's motion to dismiss a mother's wrongful death action, which alleged that it was liable for health care workers' negligent acts, because the court of appeals erred in failing to give any weight to the legal principles regarding borrowed servants and the definition attributed to the term "employee" for purposes of the workers' compensation statute; the fact that borrowed servants have been included within the definition of an "employee" in other legal areas is proof of how ingrained the borrowed servant doctrine is in our jurisprudence. Summerlin v. Ga. Pines Cmty. Serv. Bd., 286 Ga. 593, 690 S.E.2d 401 (2010).

Denial of motion to dismiss was reversed because in fulfilling their "law enforcement powers" granted by O.C.G.A. § 20-8-2, the campus police officers were acting on behalf or in service of the state in an official capacity and, thus, the officers were "state officers" under O.C.G.A. § 50-21-22(7). Agnes Scott College v. Hartley, 321 Ga. App. 74, 741 S.E.2d 199 (2013).

Defendant's emergency motion to open default was improperly granted as the defendant did not plead under oath a meritorious defense because the defendant was acting as an independent contractor working for the city when it undertook the inspections at issue; under the Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20 et seq., sovereign immunity applied only to the state and to state officers and employees; and the GTCA specifically excluded an independent contractor doing business with the state from the definition of state officer or employee. Leeper v. Safebuilt Ga., Inc., 353 Ga. App. 121, 836 S.E.2d 625 (2019).

- School district was not an arm of the state for purposes of federal immunity in part because the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., explicitly excludes school districts from the Act's definition of "state." Lightfoot v. Henry County Sch. Dist., 771 F.3d 764 (11th Cir. 2014).

- Trial court erred by dismissing the plaintiff's complaint for failure to state a claim against the school superintendent because the plaintiff sufficiently pled facts invoking the limited exception to qualified immunity based on allegations that the superintendent maliciously and intentionally injured the plaintiff by firing the plaintiff after seeing the superintendent and another engage in illegal activities. Everson v. DeKalb County Sch. Dist., 344 Ga. App. 665, 811 S.E.2d 9 (2018).

- In order for state policy decisions related to the provision of emergency services not to be directly or indirectly put on trial, the Supreme Court of Georgia construed O.C.G.A. § 50-21-24(6), an exception to the waiver of sovereign immunity, to provide complete protection of the policy-making decisions in providing police and fire services from judicial review as such construction accomplished a balance between the inherently unfair and inequitable results from the strict application of sovereign immunity and the need to limit the state's exposure to tort liability that the General Assembly expressed as the General Assembly's goal in O.C.G.A. § 50-21-21. Ga. Forestry Comm'n v. Canady, 280 Ga. 825, 632 S.E.2d 105 (2006).

- Denial of motion to dismiss was reversed because in fulfilling their "law enforcement powers" granted by O.C.G.A. § 20-8-2, the campus police officers were acting on behalf or in service of the state in an official capacity and, thus, the officers were "state officers" under O.C.G.A. § 50-21-22(7). Agnes Scott College v. Hartley, 321 Ga. App. 74, 741 S.E.2d 199 (2013).

- Campus police officers employed by a private college did not qualify as state officers or employees who may assert immunity from tort suits under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., because the officers were not acting for any state government entity when the officers committed the alleged torts. Hartley v. Agnes Scott College, 295 Ga. 458, 759 S.E.2d 857 (2014).

- Torts Claims Act, O.C.G.A. § 50-21-20 et seq., applies to the Georgia Ports Authority as sovereign immunity applies thereto. Miller v. Georgia Ports Auth., 217 Ga. App. 876, 460 S.E.2d 100 (1995), aff'd, 266 Ga. 586, 470 S.E.2d 426 (1996).

- Tort Claims Act, O.C.G.A. § 50-21-20 et seq., did not apply to an action by a former employee of the Georgia Ports Authority (GPA) seeking an injunction prohibiting the GPA from barring the former employee from the GPA's premises and an order reinstating the former employee to the former position. Premo v. Georgia Ports Auth., 227 Ga. App. 27, 488 S.E.2d 106 (1997).

- Georgia Lottery Corporation (GLC) is entitled to assert sovereign immunity as a bar to a suit under Ga. Const. 1983, Art. I, Sec. II, Para. IX, and the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., because under the Georgia Lottery for Education Act, O.C.G.A. § 50-27-1 et seq., the purpose, function, and management of GLC are indelibly intertwined with the state in a manner that qualifies the GLC for the protection of sovereign immunity as a state instrumentality; thus, the GLC must be classified as an instrumentality of the state to which sovereign immunity applies. Kyle v. Ga. Lottery Corp., 290 Ga. 87, 718 S.E.2d 801 (2011).

Health department acting solely as a county agency was governed by the same sovereign immunity as the county and a waiver by specific legislative act was necessary in order for the department to be subject to a suit in tort. Fielder v. Rice Constr. Co., 239 Ga. App. 362, 522 S.E.2d 13 (1999).

- Decision of police officers not to interfere with the arrests of the plaintiffs called for a consideration of discretion and liability therefor was barred by sovereign immunity. Rhoden v. Department of Pub. Safety, 221 Ga. App. 844, 473 S.E.2d 537 (1996).

- In a negligence action by a student against a school system and physical education teacher, the system and teacher were entitled to the defense of sovereign immunity, and there was no waiver of immunity by the mere existence of the system's liability insurance policy. Crisp County Sch. Sys. v. Brown, 226 Ga. App. 800, 487 S.E.2d 512 (1997).

As the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., does not divest a public school district of the district's sovereign immunity, plaintiff's various state claims against a physical education teacher and the school system were dismissed. Davis v. DeKalb County Sch. Dist., 996 F. Supp. 1478 (N.D. Ga. 1998), aff'd sub nom. Davis ex rel. Doe v. DeKalb County Sch. Dist., 233 F.3d 1367 (11th Cir. 2000).

- Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et. seq., did not apply to a wrongful death suit brought against a county, a sheriff, and a deputy; under Ga. Const. 1983, Art. IX, Sec. I, Para. III(a), sheriffs are county officers and O.C.G.A. § 50-21-22(5) excludes counties from the Act, and moreover the county paid the salaries and employee benefits of the sheriff and the sheriff's employees and funded the sheriff's department. Nichols v. Prather, 286 Ga. App. 889, 650 S.E.2d 380 (2007), cert. denied, S07C1873, 2007 Ga. LEXIS 766 (Ga. 2007).

- Ga. Const. 1983, Art. I, Sec. II, Para. IX provided that counties and other political subdivisions of the State of Georgia were absolutely immune from suit for tort liability, unless that immunity was specifically waived pursuant to an Act of the General Assembly which specifically provided that sovereign immunity was waived and the extent of such waiver, and the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., provided for a limited waiver of the state's sovereign immunity for the torts of the state's officials and employees. However, the Act expressly excluded counties and school districts from the waiver, O.C.G.A. § 50-21-22(5); because the plaintiff failed to identify any legislative act that waived the immunity of defendant county or school district, county defendants were immune from suit on plaintiff's state law claims. McDaniel v. Fulton County Sch. Dist., 233 F. Supp. 2d 1364 (N.D. Ga. 2002).

Teacher's action, alleging fraud by a school district in inducing the teacher to resign and to enter an agreement with the district, was barred by sovereign immunity pursuant to O.C.G.A. § 50-21-22(5) as the limited waiver of the state's sovereign immunity for the torts of the state's officers and employees excluded school districts. Kaylor v. Rome City Sch. Dist., 267 Ga. App. 647, 600 S.E.2d 723 (2004).

State transportation department's motion to dismiss was properly granted on the ground that sovereign immunity barred the claimant's personal injury claim against the state because the claimant did not timely file a notice of claim as required by O.C.G.A. § 50-21-26(a), and substantial compliance was not sufficient to meet that statute's requirement of proper notice; since the claimant did not timely file the notice of claim, the trial court was not permitted to consider the claim because the state only waived the state's sovereign immunity to the extent of providing a limited time to file a claim against the state, and since the claimant did not meet that requirement the trial court lacked subject matter jurisdiction to entertain the claim. Williams v. Ga. DOT, 275 Ga. App. 88, 619 S.E.2d 763 (2005).

Trial court properly dismissed a parent's tort claims against the school district and the district's employees as the district were immune from suit and excluded from the limited waiver provision under both O.C.G.A. §§ 50-21-22(5) and50-21-23(a). Moreover, none of the alleged acts showed the malicious, wilful, or wanton conduct necessary to overcome that immunity. Chisolm v. Tippens, 289 Ga. App. 757, 658 S.E.2d 147 (2008), cert. denied, 129 S. Ct. 576, 172 L. Ed. 2d 431 (2008).

- Georgia Department of Human Resources and the Department of Juvenile Justice were entitled to sovereign immunity on a claim asserted by the parent for an accidental electrocution of the parent's child because the child had been placed in the care and custody of the state agencies, but was living in a facility operated by an independent contractor through an agreement with the state, and was fatally injured through the negligence of the contractor's employee. Johnson v. Ga. Dep't of Human Res., 278 Ga. 714, 606 S.E.2d 270 (2004).

- Georgia Department of Human Resources and the DeKalb Community Service Board were not entitled to summary judgment based on immunity in a foster child's parents' action against them arising out of the child's being hit by a car while in foster care. The foster parents' decision to leave the child was not a discretionary function under O.C.G.A. §§ 50-21-22(2) and50-21-24(2); decisions about the child's care did not involve policy judgments based on social, political, or even economic factors. Ga. Dep't of Human Res. v. Bulbalia, 303 Ga. App. 659, 694 S.E.2d 115 (2010).

- Appellate court erred by reversing the dismissal of a negligence suit against a state agency regarding a report of abuse from a pediatrician of two boys because the case manager's decisions about how to investigate the report required a balancing of policy considerations, thus, the discretionary function exception under the Georgia Tort Claims Act, O.C.G.A. § 50-21-24(2), applied and the case was properly dismissed by the trial court. Ga. Dep't of Human Servs. v. Spruill, 294 Ga. 100, 751 S.E.2d 315 (2013).

In a suit against the state arising out of the death of an infant at the hands of the infant's drug-addicted parents, dismissal of claims for battery on the child was proper under the assault and battery exception to the state's waiver of sovereign immunity, O.C.G.A. § 50-21-24(7); however, more information was needed to determine if the discretionary function exception, § 50-21-24(2), applied. Cowart v. Ga. Dep't of Human Servs., 340 Ga. App. 183, 796 S.E.2d 903 (2017).

- Court of appeals was correct in the court's determination that venue in defendant's wrongful death action was proper in the county where the death occurred since the term "loss" was not a matter of speculation, was defined in O.C.G.A. § 50-21-22, and which definition included "death". Georgia DOT v. Evans, 269 Ga. 400, 499 S.E.2d 321 (1998).

Cited in Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994); Northwest Ga. Regional Hosp. v. Wilkins, 220 Ga. App. 534, 469 S.E.2d 786 (1996); Evans v. DOT, 226 Ga. App. 74, 485 S.E.2d 243 (1997); Bontwell v. Department of Cors., 226 Ga. App. 524, 486 S.E.2d 917 (1997); Jackson v. Department of Human Resources, 230 Ga. App. 595, 497 S.E.2d 58 (1998); Williams v. Georgia Dep't of Human Resources, 272 Ga. 624, 532 S.E.2d 401 (2000); Ga. Dep't of Human Res. v. Coley, 247 Ga. App. 392, 544 S.E.2d 165 (2000); Rayburn v. Hogue, 241 F.3d 1341 (11th Cir. 2001); DOT v. Montgomery Tank Lines, Inc., 253 Ga. App. 143, 558 S.E.2d 723 (2001); Aliffi v. Liberty County Sch. Dist., 259 Ga. App. 713, 578 S.E.2d 146 (2003); Currid v. DeKalb State Court Prob. Dep't, 285 Ga. 184, 674 S.E.2d 894 (2009); Kyle v. Ga. Lottery Corp., 304 Ga. App. 635, 698 S.E.2d 12 (2010); Hagan v. Ga. DOT, 321 Ga. App. 472, 739 S.E.2d 123 (2013); Considine v. Murphy, 297 Ga. 164, 773 S.E.2d 176 (2015); Stephens v. Coan, 349 Ga. App. 147, 825 S.E.2d 525 (2019); Bush v. Eichholz, 352 Ga. App. 465, 833 S.E.2d 280 (2019).