issue of sovereign immunity in Georgia

2023This Court, of course, reviews a trial court’s ruling on a motion to dismiss “based on sovereign immunity de novo because it is a matter of law,”4 but factual findings made by that court are “sustained if there is evidence to support them, and 4 Gwinnett Cnty. v. Ashby, 354 Ga. App. 863 , 864 ( 842 SE2d 70 ) (2020); see Ga. Dep’t of Nat’l Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) ( 755 SE2d 184 ) (2014) (“Turning to the issue of sovereign immunity, our review of this question of law is de novo.”); Fulton Cnty.

2023This Court, of course, reviews a trial court’s ruling on a motion to dismiss “based on sovereign immunity de novo because it is a matter of law,”4 but factual findings made by that court are “sustained if there is evidence to support them, and 4 Gwinnett Cnty. v. Ashby, 354 Ga. App. 863 , 864 ( 842 SE2d 70 ) (2020); see Ga. Dep’t of Nat’l Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) ( 755 SE2d 184 ) (2014) (“Turning to the issue of sovereign immunity, our review of this question of law is de novo.”); Fulton Cnty.

2022Servs., 340 Ga. App. 183, 183 ( 796 SE2d 903 ) (2017) (“[T]he party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.”). 4 See RTT Assocs., Inc., 299 Ga. at 81 (1) (“Whether sovereign immunity has been waived under the undisputed facts of this case is a question of law, and this Court’s review is de novo.”); Ga. Dep’t of Natural Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) ( 755 SE2d 184 ) (2014) (noting that the issue of sovereign immunity is a question of law which is reviewed de novo); Beasley v. Ga. Dep’t of Corr., 360

2021Factual findings are sustained if there is evidence supporting them[.]” (punctuation omitted)); see also Ga. Dep’t of Natural Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) ( 755 SE2d 184 ) (2014) (noting that the issue of sovereign immunity is a question of law which is reviewed de novo). 2 See Ga. Dep’t of Labor v. RTT Assoc., Inc., 299 Ga. 78, 81 (1) ( 786 SE2d 840 ) (2016); O’Donnell, 352 Ga. App. at 651 (“[T]he burden of proof is on the party seeking the waiver of immunity.” (punctuation omitted)). 2 Billue and Christopher Monica—were tragically killed with their own ser

2018See City of Tybee Island v. Harrod , 337 Ga. App. 523 , 524, 788 S.E.2d 122 (2016).

2018See City of Tybee Island v. Harrod , 337 Ga. App. 523 , 524, 788 S.E.2d 122 (2016).

2023Process Servers v. Jackson, 302 Ga. 309, 311-312 (1) (806 SE2d 550) (2017) 3 (vacating on direct appeal the portion of the trial court’s order which dismissed the plaintiff’s claims on their merits and remanding with direction that these claims be dismissed because they were barred by sovereign immunity); New Cingular Wireless PCS, LLC v. Georgia Dept. of Revenue, 303 Ga. 468, 470 (1) n.3 (813 SE2d 388) (2018) (noting that “the [underlying] Court of Appeals opinion should not be read for the proposition that the issue of sovereign immunity may be pretermitted in order to consider the merits” a

2023See also Ga. Assn. of Professional Process Servers v. Jackson, 302 Ga. 309, 311-312 (1) ( 806 SE2d 550 ) (2017) (vacating on direct appeal the portion of the trial court’s order which dismissed the plaintiff’s 3 claims on their merits and remanding with direction that these claims be dismissed because they were barred by sovereign immunity); New Cingular Wireless PCS v. Ga. Dept. of Revenue, 303 Ga. 468, 470 (1) n.3 ( 813 SE2d 388 ) (2018) (noting that “the [underlying] Court of Appeals opinion should not be read for the proposition that the issue of sovereign immunity may be pretermitted in o

2023Process Servers v. Jackson, 302 Ga. 309, 311-312 (1) (806 SE2d 550) (2017) 3 (vacating on direct appeal the portion of the trial court’s order which dismissed the plaintiff’s claims on their merits and remanding with direction that these claims be dismissed because they were barred by sovereign immunity); New Cingular Wireless PCS, LLC v. Georgia Dept. of Revenue, 303 Ga. 468, 470 (1) n.3 (813 SE2d 388) (2018) (noting that “the [underlying] Court of Appeals opinion should not be read for the proposition that the issue of sovereign immunity may be pretermitted in order to consider the merits” a

2023See also Ga. Assn. of Professional Process Servers v. Jackson, 302 Ga. 309, 311-312 (1) ( 806 SE2d 550 ) (2017) (vacating on direct appeal the portion of the trial court’s order which dismissed the plaintiff’s 3 claims on their merits and remanding with direction that these claims be dismissed because they were barred by sovereign immunity); New Cingular Wireless PCS v. Ga. Dept. of Revenue, 303 Ga. 468, 470 (1) n.3 ( 813 SE2d 388 ) (2018) (noting that “the [underlying] Court of Appeals opinion should not be read for the proposition that the issue of sovereign immunity may be pretermitted in o

2023The special concurring opinion rightfully concluded that “[s]overeign immunity is a threshold issue that should be decided before addressing the merits of a plaintiff’s claims,” Bray, 367 Ga. 4 App. at 386 (Gobeil, J., concurring specially), but then relied on a footnote in Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682, 690 (859 SE2d 33) (2021)2 to conclude that remand to the trial court to address sovereign immunity was unnecessary.

2023The special concurring opinion rightfully concluded that “[s]overeign immunity is a threshold issue that should be decided before addressing the merits of a plaintiff’s claims,” Bray, 367 Ga. 4 App. at 386 (Gobeil, J., concurring specially), but then relied on a footnote in Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682, 690 (859 SE2d 33) (2021)2 to conclude that remand to the trial court to address sovereign immunity was unnecessary.

2023Process Servers v. Jackson, 302 Ga. 309, 311-312 (1) (806 SE2d 550) (2017) 3 (vacating on direct appeal the portion of the trial court’s order which dismissed the plaintiff’s claims on their merits and remanding with direction that these claims be dismissed because they were barred by sovereign immunity); New Cingular Wireless PCS, LLC v. Georgia Dept. of Revenue, 303 Ga. 468, 470 (1) n.3 (813 SE2d 388) (2018) (noting that “the [underlying] Court of Appeals opinion should not be read for the proposition that the issue of sovereign immunity may be pretermitted in order to consider the merits” a

2023Process Servers v. Jackson, 302 Ga. 309, 311-312 (1) (806 SE2d 550) (2017) 3 (vacating on direct appeal the portion of the trial court’s order which dismissed the plaintiff’s claims on their merits and remanding with direction that these claims be dismissed because they were barred by sovereign immunity); New Cingular Wireless PCS, LLC v. Georgia Dept. of Revenue, 303 Ga. 468, 470 (1) n.3 (813 SE2d 388) (2018) (noting that “the [underlying] Court of Appeals opinion should not be read for the proposition that the issue of sovereign immunity may be pretermitted in order to consider the merits” a

2023OCGA § 5-6-48 (b) (3); State v. Brown, 315 Ga. App. 544, 553 (3) ( 726 SE2d 500 ) (2012) (“We will not remand for unnecessary, additional proceedings when the outcome is already certain[.]”) It is true that Georgia law provides that “[i]ssues of sovereign and official immunity are generally threshold issues to be decided before addressing the merits of a plaintiff’s claims.” (Citation omitted; emphasis supplied.) Ratliff, 326 Ga. App. at 308 (1).

2023The public duty doctrine, as adopted by the Georgia Supreme Court, “pertains to whether a local government owes a duty of care under tort law to an individual plaintiff[.]” Gregory v. Clive, 282 Ga. 476, 477 ( 651 SE2d 709 ) (2007).

2023The public duty doctrine, as adopted by the Georgia Supreme Court, “pertains to whether a local government owes a duty of care under tort law to an individual plaintiff[.]” Gregory v. Clive, 282 Ga. 476, 477 ( 651 SE2d 709 ) (2007).

2023OCGA § 5-6-48 (b) (3); State v. Brown, 315 Ga. App. 544, 553 (3) ( 726 SE2d 500 ) (2012) (“We will not remand for unnecessary, additional proceedings when the outcome is already certain[.]”) It is true that Georgia law provides that “[i]ssues of sovereign and official immunity are generally threshold issues to be decided before addressing the merits of a plaintiff’s claims.” (Citation omitted; emphasis supplied.) Ratliff, 326 Ga. App. at 308 (1).

2023OCGA § 5-6-48 (b) (3); State v. Brown, 315 Ga. App. 544, 553 (3) ( 726 SE2d 500 ) (2012) (“We will not remand for unnecessary, additional proceedings when the outcome is already certain[.]”) It is true that Georgia law provides that “[i]ssues of sovereign and official immunity are generally threshold issues to be decided before addressing the merits of a plaintiff’s claims.” (Citation omitted; emphasis supplied.) Ratliff, 326 Ga. App. at 308 (1).

2022Factual findings are sustained if there is evidence supporting them[.]” (punctuation omitted)). 5 Our Supreme Court has considered professional negligence claims—i.e., medical malpractice claims—against other state entities and concluded that “the 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.” Edwards v. Dep’t of Child. & Youth Servs., 271 Ga. 890, 892 ( 525 SE2d 83 ) (2000); accord Shekhawat v. Jones, 293 Ga. 468, 473 ( 746 SE2d 89 ) (2013). 6 Compare

2022Factual findings are sustained if there is evidence supporting them[.]” (punctuation omitted)). 5 Our Supreme Court has considered professional negligence claims—i.e., medical malpractice claims—against other state entities and concluded that “the 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.” Edwards v. Dep’t of Child. & Youth Servs., 271 Ga. 890, 892 ( 525 SE2d 83 ) (2000); accord Shekhawat v. Jones, 293 Ga. 468, 473 ( 746 SE2d 89 ) (2013). 6 Compare

2022Factual findings are sustained if there is evidence supporting them[.]” (punctuation omitted)). 5 Our Supreme Court has considered professional negligence claims—i.e., medical malpractice claims—against other state entities and concluded that “the 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.” Edwards v. Dep’t of Child. & Youth Servs., 271 Ga. 890, 892 ( 525 SE2d 83 ) (2000); accord Shekhawat v. Jones, 293 Ga. 468, 473 ( 746 SE2d 89 ) (2013). 6 Compare

2022Factual findings are sustained if there is evidence supporting them[.]” (punctuation omitted)). 5 Our Supreme Court has considered professional negligence claims—i.e., medical malpractice claims—against other state entities and concluded that “the 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.” Edwards v. Dep’t of Child. & Youth Servs., 271 Ga. 890, 892 ( 525 SE2d 83 ) (2000); accord Shekhawat v. Jones, 293 Ga. 468, 473 ( 746 SE2d 89 ) (2013). 6 Compare

2022Servs., 340 Ga. App. 183, 183 ( 796 SE2d 903 ) (2017) (“[T]he party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.”). 4 See RTT Assocs., Inc., 299 Ga. at 81 (1) (“Whether sovereign immunity has been waived under the undisputed facts of this case is a question of law, and this Court’s review is de novo.”); Ga. Dep’t of Natural Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) ( 755 SE2d 184 ) (2014) (noting that the issue of sovereign immunity is a question of law which is reviewed de novo); Beasley v. Ga. Dep’t of Corr., 360

2022Servs., 340 Ga. App. 183, 183 ( 796 SE2d 903 ) (2017) (“[T]he party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.”). 4 See RTT Assocs., Inc., 299 Ga. at 81 (1) (“Whether sovereign immunity has been waived under the undisputed facts of this case is a question of law, and this Court’s review is de novo.”); Ga. Dep’t of Natural Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga. 593, 596 (2) ( 755 SE2d 184 ) (2014) (noting that the issue of sovereign immunity is a question of law which is reviewed de novo); Beasley v. Ga. Dep’t of Corr., 360

2020See also Spruill, 294 Ga. at 110-111 (2) (b); OCGA § 29-4-23 (a) (1) (“[A] guardian may . . . [t]ake custody of the person of the ward.”) (emphasis supplied); OCGA § 29-4-20 (a) (6) (“In every guardianship, the ward has the right to . . . [t]he least restrictive form of guardianship assistance, taking into consideration the ward’s functional limitations, personal needs, and preferences”). 14 Based on this finding we need not address whether this case falls under the inspection exception to the GTCA. 15 324 Ga. App. 871, 876 (1) ( 752 SE2d 45 ) (2013). 9 of letters of guardianship by the probat

2020See also Spruill, 294 Ga. at 110-111 (2) (b); OCGA § 29-4-23 (a) (1) (“[A] guardian may . . . [t]ake custody of the person of the ward.”) (emphasis supplied); OCGA § 29-4-20 (a) (6) (“In every guardianship, the ward has the right to . . . [t]he least restrictive form of guardianship assistance, taking into consideration the ward’s functional limitations, personal needs, and preferences”). 14 Based on this finding we need not address whether this case falls under the inspection exception to the GTCA. 15 324 Ga. App. 871, 876 (1) ( 752 SE2d 45 ) (2013). 9 of letters of guardianship by the probat

2020See also Spruill, 294 Ga. at 110-111 (2) (b); OCGA § 29-4-23 (a) (1) (“[A] guardian may . . . [t]ake custody of the person of the ward.”) (emphasis supplied); OCGA § 29-4-20 (a) (6) (“In every guardianship, the ward has the right to . . . [t]he least restrictive form of guardianship assistance, taking into consideration the ward’s functional limitations, personal needs, and preferences”). 14 Based on this finding we need not address whether this case falls under the inspection exception to the GTCA. 15 324 Ga. App. 871, 876 (1) ( 752 SE2d 45 ) (2013). 9 of letters of guardianship by the probat

2019Counsel for the defendants reinforced this position during the summary judgment hearing, stating: “First, let me be clear that the issue of sovereign immunity only pertains to the City, it’s not Ms. Starling’s defense.” (Emphasis supplied.) Counsel 4 “The doctrine of official immunity, developed primarily in Georgia through case law, provides that while a public officer or employee may be personally liable for [her] negligent ministerial acts, [she] may not be held liable for [her] discretionary acts unless such acts are wilful, wanton, or outside the scope of [her] authority.” (Citations omit

2019Counsel for the defendants reinforced this position during the summary judgment hearing, stating: “First, let me be clear that the issue of sovereign immunity only pertains to the City, it’s not Ms. Starling’s defense.” (Emphasis supplied.) Counsel 4 “The doctrine of official immunity, developed primarily in Georgia through case law, provides that while a public officer or employee may be personally liable for [her] negligent ministerial acts, [she] may not be held liable for [her] discretionary acts unless such acts are wilful, wanton, or outside the scope of [her] authority.” (Citations omit

2019See also Tattnall County v. Armstrong, 333 Ga. App. 46, 52 (775 SE2d 573) (2015) (Barnes, P. J., concurring fully and specially) (noting that the nomenclature used in this area of the law is extremely confusing and suggesting that we replace “official immunity” with “qualified immunity” when analyzing whether a person sued in his or her individual capacity is immune from suit), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016). 16 concluded his argument as follows: “So our position is that Ms. Starling is entitled to official immunity for all claims asserted a

2019See also Tattnall County v. Armstrong, 333 Ga. App. 46, 52 (775 SE2d 573) (2015) (Barnes, P. J., concurring fully and specially) (noting that the nomenclature used in this area of the law is extremely confusing and suggesting that we replace “official immunity” with “qualified immunity” when analyzing whether a person sued in his or her individual capacity is immune from suit), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016). 16 concluded his argument as follows: “So our position is that Ms. Starling is entitled to official immunity for all claims asserted a

2019See also Tattnall County v. Armstrong, 333 Ga. App. 46, 52 (775 SE2d 573) (2015) (Barnes, P. J., concurring fully and specially) (noting that the nomenclature used in this area of the law is extremely confusing and suggesting that we replace “official immunity” with “qualified immunity” when analyzing whether a person sued in his or her individual capacity is immune from suit), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016). 16 concluded his argument as follows: “So our position is that Ms. Starling is entitled to official immunity for all claims asserted a

2019See also Tattnall County v. Armstrong, 333 Ga. App. 46, 52 (775 SE2d 573) (2015) (Barnes, P. J., concurring fully and specially) (noting that the nomenclature used in this area of the law is extremely confusing and suggesting that we replace “official immunity” with “qualified immunity” when analyzing whether a person sued in his or her individual capacity is immune from suit), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016). 16 concluded his argument as follows: “So our position is that Ms. Starling is entitled to official immunity for all claims asserted a

2017City of Tybee Island v. Harrod , 337 Ga. App. 523 , 524, 788 S.E.2d 122 (2016) (sovereign immunity is not in the nature of an affirmative defense, going to the merits of the cases, but instead raises the trial court's subject matter jurisdiction to try the case and should be decided at the outset); Albertson v. City of Jesup , 312 Ga. App. 246 , 248 (1), 718 S.E.2d 4 (2011) ( "sovereign immunity is a threshold issue that the trial court was required to address before reaching the merits of any other argument.").

2017City of Tybee Island v. Harrod , 337 Ga. App. 523 , 524, 788 S.E.2d 122 (2016) (sovereign immunity is not in the nature of an affirmative defense, going to the merits of the cases, but instead raises the trial court's subject matter jurisdiction to try the case and should be decided at the outset); Albertson v. City of Jesup , 312 Ga. App. 246 , 248 (1), 718 S.E.2d 4 (2011) ( "sovereign immunity is a threshold issue that the trial court was required to address before reaching the merits of any other argument.").

2016See Derbyshire, 194 Ga. App. at 843 (1); see also Gonzalez v. Georgia Dept. of Transp., 329 Ga. App. 224, 225-226 ( 764 SE2d 462 ) (2014); Glass v. Gates, 311 Ga. App. 563, 573-574 (1) ( 716 SE2d 611 ) (2011).

2016See Derbyshire, 194 Ga. App. at 843 (1); see also Gonzalez v. Georgia Dept. of Transp., 329 Ga. App. 224, 225-226 ( 764 SE2d 462 ) (2014); Glass v. Gates, 311 Ga. App. 563, 573-574 (1) ( 716 SE2d 611 ) (2011).

2016See Derbyshire, 194 Ga. App. at 843 (1); see also Gonzalez v. Georgia Dept. of Transp., 329 Ga. App. 224, 225-226 ( 764 SE2d 462 ) (2014); Glass v. Gates, 311 Ga. App. 563, 573-574 (1) ( 716 SE2d 611 ) (2011).

2016See Derbyshire, 194 Ga. App. at 843 (1); see also Gonzalez v. Georgia Dept. of Transp., 329 Ga. App. 224, 225-226 ( 764 SE2d 462 ) (2014); Glass v. Gates, 311 Ga. App. 563, 573-574 (1) ( 716 SE2d 611 ) (2011).

2016See Derbyshire, 194 Ga. App. at 843 (1); see also Gonzalez v. Georgia Dept. of Transp., 329 Ga. App. 224, 225-226 ( 764 SE2d 462 ) (2014); Glass v. Gates, 311 Ga. App. 563, 573-574 (1) ( 716 SE2d 611 ) (2011).

2015City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 3-4 (2) ( 421 SE2d 113 ) (1992).

2015City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 3-4 (2) ( 421 SE2d 113 ) (1992).