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
§ 50-21-23. Limited Waiver of Sovereign Immunity

1. The state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state's sovereign immunity is waived subject to all exceptions and limitations set forth in this article.The state shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment.
2. The state waives its sovereign immunity only to the extent and in the manner provided in this article and only with respect to actions brought in the courts of the State of Georgia.The state does not waive any immunity with respect to actions brought in the courts of the United States.

(Code 1981, §50-21-23, enacted by Ga. L. 1992, p. 1883, § 1.)

- For annual survey of law of torts, see 56 Mercer L. Rev. 415 (2004). For article, "Construction Law," see 70 Mercer L. Rev. 51 (2018).

JUDICIAL DECISIONS

"State officer or employee."

- 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).

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 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 the employees' official duties is a concomitant specific waiver of immunity for torts committed by borrowed servants acting within the scope of the servant's 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).

Judgment was reversed with regard to dismissal of patient's negligence claim because it was undisputed that the university dentist was a state employee acting within the scope of the dentist's employment. As such, the patient could proceed on the patient's claim for the dentist's failure to timely remove the temporary crowns and replace the temporary crowns with permanent crowns. Lockhart v. Bd. of Regents of the Univ. Sys. of Ga., 316 Ga. App. 759, 730 S.E.2d 475 (2012).

- In a medical malpractice suit, two physicians were entitled to official immunity under O.C.G.A. §§ 50-21-23(b) and50-21-25(a) because the record established that the physicians were full-time faculty members at a Georgia medical college performing the physicians regular duties of employment at the time the estate's decedent was allegedly injured. Cook v. Forrester, 323 Ga. App. 631, 746 S.E.2d 624 (2013).

- Tort Claims Act, O.C.G.A. § 50-21-20 et seq., did not change the application of the Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq.; a welcome center where a traveler was injured was recreational, and thus the department which owned the welcome center was immune from liability. The immunity claimed by the department was not "sovereign" immunity, but rather was an immunity granted by statute to an owner who invited the public onto land for recreational purposes without charging a fee. Matheson v. Ga. DOT, 280 Ga. App. 192, 633 S.E.2d 569 (2006).

Construction of O.C.G.A. § 50-21-24. - 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).

- Waiver of the state's sovereign immunity for the torts of the state's officers and employees did not extend to losses resulting from conduct that was not within the scope of their official duties or employment. Cary v. Department of Children & Youth Servs., 235 Ga. App. 103, 508 S.E.2d 469 (1998).

- Trial court erred in denying summary judgment to the administrator of the State Employee Liability Trust Fund (administrator) because the General Liability Agreement (GLA) at issue did not cover any of the former employee's surviving claims in the underlying suit since those claims did not arise out of the employment with the state; thus, it followed that the administrator did not breach any obligation in the GLA to defend or to indemnify the employee for those claims. Ga. Dep't of Admin. Servs. v. McCoy, 340 Ga. App. 877, 798 S.E.2d 687 (2017).

- Limited sovereign immunity waiver was subject to a specific exception for assault or battery, and in determining whether this exception applied, it was not necessary that the act have been committed by a state officer or employee. A community service board was a state agency and was immune from a claim arising from the stabbing death of a resident at a community home run by the board. Oconee Cmty. Serv. Bd. v. Holsey, 266 Ga. App. 385, 597 S.E.2d 489 (2004).

Trial court did not err by dismissing a pedestrian's slip and fall claims against the Georgia Department of Transportation (GDOT) based on the bar of sovereign immunity because GDOT's specific decision to forego routine inspections, repairs, or maintenance of sidewalks within a state right-of-way as a result of prioritizing maintenance activities based on budgetary constraints fell under the discretionary function exception. Hagan v. Ga. DOT, 321 Ga. App. 472, 739 S.E.2d 123 (2013).

Dismissal of an injured couple's claims against the DOT to the extent they were based on a theory of negligent inspection of the county-owned area in which the accident occurred was proper under O.C.G.A. § 50-21-24(8); the waiver of immunity with respect to design claims under § 50-21-24(10) did not extend to waive immunity for inspection claims. Diamond v. DOT, 326 Ga. App. 189, 756 S.E.2d 277 (2014).

In a construction site collision, the Georgia Department of Transportation was entitled to immunity for the department's alleged negligence in approving the site plan for traffic control and in furnishing the basic traffic control plan, pursuant to O.C.G.A. § 50-21-24(9). Ga. DOT v. Owens, 330 Ga. App. 123, 766 S.E.2d 569 (2014).

- Georgia Ports Authority is a state "department or agency" that is entitled to the defense of sovereign immunity but may be liable for the torts of state officers and employees because of the state's waiver of immunity through the enactment of the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq. Miller v. Georgia Ports Auth., 266 Ga. 586, 470 S.E.2d 426 (1996).

- In a suit brought by an inmate wherein a successful jury verdict was obtained against the Georgia Department of Corrections after the inmate was injured while working on a painting detail at the warden's house, the trial court properly denied the Department's motion to dismiss based on sovereign immunity because under the Georgia Tort Claims Act, O.C.G.A. § 50-21-23(a), the state waived sovereign immunity for the torts of state employees while acting within the scope of the employees' official duties in the same manner as a private individual or entity would be liable under like circumstances. Ga. Dep't of Corr. v. Couch, 322 Ga. App. 234, 744 S.E.2d 432 (2013).

- Nothing in the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., contradicts the holding that the state can be liable as a joint tortfeasor and such holding does not violate the provisions of Ga. Const. 1983, Art. VI, Sec. VI, Para. VI. DOT v. Brown, 218 Ga. App. 178, 460 S.E.2d 812 (1995), aff'd, 267 Ga. 6, 471 S.E.2d 849 (1996).

Trial court did not err in refusing to dismiss an action against the Georgia Department of Transportation seeking joint tortfeasor contribution when the state's sovereign immunity was waived under O.C.G.A. § 50-21-23(a) based on the state's negligent maintenance and design of an intersection. Ga. DOT v. Fed. Express Corp., 254 Ga. App. 149, 561 S.E.2d 470 (2002), aff'd, DOT v. Montgomery Tank Lines, Inc., 276 Ga. 105, 575 S.E.2d 487 (2003).

- While the state does regulate foster parenting to an extent, and thus, arguably has a symbiotic relationship with the foster parents, this relationship does not encourage or sanction child abuse, and the mere fact that a state regulates a private party is not sufficient to make that party a state actor. Rayburn v. Hogue, 241 F.3d 1341 (11th Cir. 2001).

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).

- Because the provisions of the Iowa and Georgia tort claims acts are conceptually identical, application of Iowa's Tort Claims Act would not violate Georgia's public policy and, as such, Georgia should recognize and give effect to the legislatively declared policy of Iowa as a matter of comity. University of Iowa Press v. Urrea, 211 Ga. App. 564, 440 S.E.2d 203 (1993).

- General Assembly granted a limited waiver of sovereign immunity with certain conditions precedent to the waiver; thus, since the plaintiff failed to serve the director of the risk management division, a condition precedent to waiver of sovereign immunity, the state had no duty to respond to the first timely filed suit. Sylvester v. DOT, 252 Ga. App. 31, 555 S.E.2d 740 (2001).

Trial court did not err in granting the state transportation department's motion to dismiss 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).

Plaintiff's federal civil rights claims and state tort claims related to incarceration for violating a consent order enjoining the plaintiff from the unauthorized practice of law were barred by the Eleventh Amendment and the specific preservation of sovereign immunity from tort claims under O.C.G.A. § 50-21-23(b) of the Georgia Tort Claims Act. Alyshah v. Georgia, F. Supp. 2d (N.D. Ga. Sept. 1, 2006), aff'd, 230 Fed. Appx. 949 (11th Cir. Ga. 2007).

Based on O.C.G.A. § 9-2-61, an arrestee's excessive force claim against a sheriff's major in the major's individual capacity was revived after a voluntary dismissal but assuming that the complaint alleged actual malice under Ga. Const. 1983, Art. I, Sec. II, Para. IX(d), as to the major's conduct, the tort claim had to brought against the state under O.C.G.A. § 50-21-25(b); however, the state did not waive the state's sovereign immunity under O.C.G.A. § 50-21-23(b) for such claim to be brought in federal court. Jude v. Morrison, 534 F. Supp. 2d 1365 (N.D. Ga. 2008).

Georgia law waives sovereign immunity for tort suits against state officers and employees committed in the scope of employment under O.C.G.A. § 50-21-23, while a later statute, O.C.G.A. § 50-21-25, states that the procedure established under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., provides the exclusive remedy for any tort committed by a state officer or employee, O.C.G.A. § 50-21-25(a). Nat'l Ass'n of Bds. of Pharm. v. Bd. of Regents, 633 F.3d 1297 (11th Cir. 2011).

Tort Claims Act, O.C.G.A. § 50-21-20 et seq., waives sovereign immunity for suits to recover monetary damages for the torts of state officers and employees while acting within the scope of their official duties or employment, O.C.G.A. § 50-21-23(a), subject to exceptions, O.C.G.A. § 50-21-24, and limitations, such as O.C.G.A. § 50-21-29(b). Lathrop v. Deal, 301 Ga. 408, 801 S.E.2d 867 (2017).

- In a wrongful death suit, the trial court erred by denying the motions of the Georgia Department of Human Resources and the Georgia Department of Juvenile Justice to dismiss and for a directed verdict, following the death of a juvenile the agencies placed in a corporate child care institution, as the two agencies were immune from suit under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., and there was no waiver of sovereign immunity by the state. Ga. Dep't of Human Res. v. Johnson, 264 Ga. App. 730, 592 S.E.2d 124 (2003).

In a case brought pursuant to 42 U.S.C. §§ 1981, 1983, 1986, and 1988, dismissal under Fed. R. Civ. P. 12(b)(6) of an individual's federal claims as barred by Eleventh Amendment immunity and the state tort claims as barred by both sovereign immunity and the Eleventh Amendment was affirmed. O.C.G.A. § 50-21-23(b) specifically preserved the State of Georgia's sovereign immunity from suits in federal courts, and Congress had not abrogated the states' Eleventh Amendment immunity with the passage of 42 U.S.C. § 1983. Alyshah v. Georgia, 239 Fed. Appx. 473 (11th Cir. 2007)(Unpublished).

Trial court properly dismissed a parent's tort claims against the school district and the district's employees as they 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).

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).

Trial court did not err in disallowing a prison inmate to file a conversion claim against a warden and corrections officers under the Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20 et seq., because their actions were clothed with official immunity under the GTCA, O.C.G.A. § 50-21-25(b), since they were acting within the scope of their official duties when they confiscated the inmate's personal property; the inmate acknowledged that the Georgia Department of Corrections had to be named as a defendant, which necessarily amounted to a concession that Department employees were not proper defendants, and their alleged tortious conduct occurred while they were acting within the scope of their official duties. Romano v. Ga. Dep't of Corr., 303 Ga. App. 347, 693 S.E.2d 521 (2010).

Trial court properly dismissed a wrongful death suit against a State of Georgia mental health agency for lack of subject matter jurisdiction because the act causing the underlying loss in the case, namely a discharged psychiatric patient setting the patient's mother on fire, constituted an assault or battery; thus, the exception in O.C.G.A. § 50-21-24(7) to the waiver of sovereign immunity applied. Pak v. Ga. Dep't of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 731 S.E.2d 384 (2012).

In a case brought by employees of a contractor against the Board of Regents of the University System of Georgia, O.C.G.A. § 50-21-23(a) of the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., did not waive the Board's sovereign immunity for torts committed by a third party, in this case the contractor, in providing a forged payment bond to the Board and failing to pay the employees. Bd. of Regents of the Univ. Sys. of Ga. v. Brooks, 324 Ga. App. 15, 749 S.E.2d 23 (2013).

Plaintiff's failure to serve the director of the Risk Management Division of the Department of Administrative Services as required by the Georgia Tort Claims Act precluded compliance with the condition precedent to waiver of sovereign immunity and rendered void the plaintiff's action such that the statute of limitations was not tolled. Despite the "procedural, not jurisdictional" language in the Georgia Supreme Court's Georgia Pines opinion, it did not apply when no service of process had occurred on one of the necessary parties, especially since the defendants contested this failure at the first opportunity and consistently thereafter. Gibbons v. McBride, 124 F. Supp. 3d 1342 (S.D. Ga. 2015).

Both the county and the county's sheriff were entitled to sovereign immunity against the state-law tort of conversion because the plaintiffs could not show that sovereign immunity had been waived. The sovereign immunity waiver of the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., does not extend to a county. Carter v. Butts Cnty., 821 F.3d 1310 (11th Cir. 2016).

- In a personal injury suit brought by a driver who was rear-ended by a state trooper conducting radar detecting to catch speeders and using the driver's mail truck as a block, the trial court properly denied summary judgment to the Department of Public Safety because the record established evidence that the accident was preventable, and that, therefore, the exception set forth in O.C.G.A. § 50-21-24(6) to sovereign immunity may be overcome by the driver at trial. By following too closely and not paying attention, the situation presented preventable negligence as opposed to a policy decision on the part of the trooper. Dep't of Pub. Safety v. Davis, 289 Ga. App. 21, 656 S.E.2d 178 (2007), aff'd, 285 Ga. 203, 676 S.E.2d 1 (2009).

- 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).

- In a suit by a passenger against a Department of Corrections (DOC) probation officer whose vehicle collided with the passenger's vehicle during a police chase because the officer's actions were consistent with DOC's non-defective policy, which allowed the officer to assist law enforcement, DOC had sovereign immunity under O.C.G.A. § 50-21-24(6). Britt v. Jackson, 348 Ga. App. 159, 819 S.E.2d 677 (2018), cert. denied, No. S19C0483, 2019 Ga. LEXIS 539 (Ga. 2019).

- Trial court was correct in denying an appellant's request to bring a mandamus action against a Governor, seeking to compel the Governor to consent to a suit against the state, to-wit, filing suit against the state without the Governor's consent, a remedy the appellant had in fact employed. Garnett v. Hamrick, 280 Ga. 523, 630 S.E.2d 384 (2006).

- 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).

- Georgia Supreme Court overruled Keenan v. Plouffe, 267 Ga. 791, (1997) and holds that the analysis of a physician's official immunity under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., shall proceed exclusively on the basis of whether the physician was acting within the scope of the physician's state employment in performing the treatment that is the subject of the malpractice action. Shekhawat v. Jones, 293 Ga. 468, 746 S.E.2d 89 (2013).

Two physicians were entitled to official immunity in a medical malpractice suit brought against the physicians by the parents of a newborn infant injured by the medical team's failure to ensure the child was adequately oxygenated during intubation because the physicians were acting within the scope of the physicians' state employment at the Medical College of Georgia in rendering the medical care at issue. Shekhawat v. Jones, 293 Ga. 468, 746 S.E.2d 89 (2013).

Effect of recognizing official immunity does not necessarily leave the injured plaintiff without recourse as, while official immunity relieves the state employee of personal liability, the injured plaintiff may still seek relief against the state government entity for which the state officer or employee was acting, pursuant to the Georgia Tort Claims Act, O.C.G.A. §§ 50-21-23 and50-21-25(b). Shekhawat v. Jones, 293 Ga. 468, 746 S.E.2d 89 (2013).

- Public relations firm's claim against a state university board for misappropriation under the Trade Secrets Act, O.C.G.A. § 10-1-760 et seq., was barred by sovereign immunity; however, because a violation of the Act constituted a tort and the state waived sovereign immunity for torts, the firm could bring suit pursuant to the Tort Claims Act, O.C.G.A. § 50-21-20 et seq. Bd. of Regents of the Univ. Sys. of Ga. v. One Sixty Over Ninety, LLC, 351 Ga. App. 133, 830 S.E.2d 503 (2019), cert. denied, No. S19C1521, 2020 Ga. LEXIS 118 (Ga. 2020).

- 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 children 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).

Cited in Northwest Ga. Regional Hosp. v. Wilkins, 220 Ga. App. 534, 469 S.E.2d 786 (1996); Mattox v. Bailey, 221 Ga. App. 546, 472 S.E.2d 130 (1996); Department of Human Resources v. Money, 222 Ga. App. 149, 473 S.E.2d 200 (1996); Ga. Dep't of Human Res. v. Coley, 247 Ga. App. 392, 544 S.E.2d 165 (2000); DOT v. Carr, 254 Ga. App. 781, 564 S.E.2d 14 (2002); Smith v. Dep't of Human Res., 257 Ga. App. 33, 570 S.E.2d 337 (2002); Feist v. Dirr, 271 Ga. App. 169, 609 S.E.2d 111 (2004); Nat'l Ass'n of Bds. of Pharm. v. Bd. of Regents of the Univ. Sys. of Ga., F. Supp. 2d (M.D. Ga. Apr. 18, 2008); Southerland v. Ga. Dep't of Corr., 293 Ga. App. 56, 666 S.E.2d 383 (2008); Savage v. E. R. Snell Contr., Inc., 295 Ga. App. 319, 672 S.E.2d 1 (2008); Grant v. Ga. Forestry Comm'n, 338 Ga. App. 146, 789 S.E.2d 343 (2016), cert. denied, No. S17C0003, 2017 Ga. LEXIS 127 (Ga. 2017), cert. denied, No. S17C0037, 2017 Ga. LEXIS 153 (Ga. 2017); Burroughs v. Georgia Ports Authority, 339 Ga. App. 294, 793 S.E.2d 538 (2016).

RESEARCH REFERENCES

ALR.

- When is federal agency employee independent contractor, creating exception to United States waiver of immunity under Federal Tort Claims Act (28 U.S.C.A. § 2671), 166 A.L.R. Fed. 187.