CopyCited 25 times | Published | Supreme Court of Georgia | Jun 16, 2014 | 759 S.E.2d 857, 2014 Fulton County D. Rep. 1513
...the employees were acting was procedurally
foreclosed due to the plaintiff’s failure to serve ante litem notice on that entity); DeLoach v. Elliott,
298 Ga. 319, 320 (710 SE2d 763) (2011) (rejecting the argument that the immunity provided by
OCGA §
36-92-3 (a) for certain torts committed by local government employees is limited to
situations where the local government entity that must be substituted for the individual employee
under §
36-92-3 (b) remains liable and does not have a viable defense).
12
instrumentality, or institution.” It is undisputed that Agnes Scott College – a
private school – does not satisfy this de...
CopyCited 7 times | Published | Supreme Court of Georgia | Sep 28, 2020 | 310 Ga. 114
...Shortly thereafter, Mendez served
his complaint upon Moats and Allred.
On September 9, 2017, Moats and Allred filed
separate answers. And on that same date, they filed a
consolidated motion to dismiss, arguing that (1) Mendez’s
claims against Allred were barred by OCGA §
36-92-3 (a),
and (2) Mendez’s failure to send an ante-litem notice to
Moats or the Polk County Sheriff’s Office barred any
claim against Moats or Allred....
...at 812 (footnote omitted).
4
In its subsequent whole-court opinion, the Court of Appeals
reversed the trial court’s judgment. The Court of Appeals first held
unanimously in Division 1 that Mendez’s claims against Deputy
Sheriff Allred were barred by OCGA §
36-92-3 (a), which grants
immunity to a “local government officer or employee who commits a
tort involving the use of a covered motor vehicle while in the
performance of his or her official duties.” See Moats, 349 Ga....
...r
rented by a “local government entity”). OCGA §
36-92-2 waives “[t]he
sovereign immunity of local government entities for a loss arising out of
claims for the negligent use of a covered motor vehicle[,]” up to certain limits;
in turn, OCGA §
36-92-3 (a) provides immunity from liability to “[a]ny local
government officer or employee who commits a tort involving the use of a
covered motor vehicle while in the performance of his or her official duties[.]”
Indeed, §
36-92-3 (b) prohibits naming “the local government officer or
employee individually” as a party defendant; the defendant must be “the local
government entity for which the officer or employee was acting[,]” and if the
plaintiff instead nam...
...Gilbert – interpreted former §
36-92-1 (3)’s definition of “local government
entity” to include sheriff’s offices, even though they were not expressly
defined as such, and held that the plaintiff’s negligence claims against the
sheriff’s deputy in that case were barred by §
36-92-3 (a) because the deputy
thus qualified as a “local government officer or employee.” See Davis,
344 Ga.
23
The problem with this reasoning, as suggested in my
discussion of the first certio...
CopyCited 7 times | Published | Supreme Court of Georgia | May 16, 2011 | 289 Ga. 319, 2011 Fulton County D. Rep. 1501
...6-33-5(b), she is precluded from filing suit against the City of Waynesboro. The trial court also held that the claims against Elliott in his individual and official capacity fail as a matter of law because he is protected from suit pursuant to OCGA §
36-92-3(a)....
...iott in his official capacity. However, Appellant does enumerate the grant of summary judgment in favor of Elliott in his individual capacity. 1. Appellant contends that the tort immunity for local government employees for situations covered by OCGA §
36-92-3(a) is limited to only those covered situations in which the local government entity remains liable. Appellant claims that the phrase in OCGA §
36-92-3(b) requiring that the government entity be substituted as the party defendant in a suit involving "an act for which the local government entity is liable" means that if the local government entity does not remain liable for the suit, or is...
...As the City is no longer liable in the present case due to Appellant's failure to send the requisite ante litem notice, she argues that substitution is no longer required and she should be able to bring suit against Elliott in his individual capacity. However, the plain language of OCGA §
36-92-3(a) states unequivocally that "[a]ny local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefor. " (Emphasis supplied.) The language in OCGA §
36-92-3(b) parsed out by Appellant does not limit this immunity....
...If the government entity would not be liable under OCGA §
36-92-1 et seq., as where the employee committed the tort using an uncovered motor vehicle, then the government entity is not "liable under this chapter" and need not be substituted. There is nothing in OCGA §
36-92-3(b) that purports to state that if a government entity is initially liable for the tort committed by its employee, but the plaintiff's suit against the government entity fails for any reason, the plaintiff can then bring suit against the individual employee. If this were true, then OCGA §
36-92-3 would provide no immunity at all for the employee, because any plaintiff could circumvent subsection (a) and bring a claim against the employee by intentionally failing in his claim against the government entity. Moreover, a plaintiff would always be allowed two attempts to prosecute the action successfully, as he could first sue the government entity and then could sue the employee if the first suit fails. *765 The construction of OCGA §
36-92-3 applied by the trial court is further supported by subsection (d), which states that a settlement or judgment in an action or settlement on a claim brought pursuant to this chapter constitutes a complete bar to any further action by the claimant against a local government officer or employee or the local government entity by reason of the same occurrence. In the present case, Appellant brought a claim pursuant to OCGA §
36-92-3, and the trial court granted summary judgment to the City. As Appellant has not enumerated this decision, it is final and provides a "complete bar" to any future suit brought by Appellant against the City or the employee and involving the tortious act at issue in this case. OCGA §
36-92-3(d). Finally, we can analogize OCGA §
36-92-3 to OCGA §
50-21-25, the tort immunity statute for state employees....
...cedurally foreclosed'" due to a failure by the plaintiff to serve ante litem notice in a timely manner. Wang v. Moore,
247 Ga.App. 666, 669-670(1),
544 S.E.2d 486 (2001). Therefore, due to the nearly identical language between OCGA §§
50-21-25 and
36-92-3, we conclude that the General Assembly intended to provide immunity for municipal employees in the context of torts involving a covered motor vehicle which is comparable to the immunity granted to state employees in the context of all torts, as long as the pertinent conditions have been satisfied. Thus, by the passage of OCGA §
36-92-3, the legislature intended to foreclose all recovery against municipal employees for torts committed within the scope of employment and involving the use of a covered motor vehicle....
...tatute unconstitutional because it violates the Georgia Constitution's guaranty of the right to trial by jury by foreclosing entirely any remedy for Appellant for her injuries arising out of the underlying tort. However, the General Assembly in OCGA §
36-92-3 did not eliminate the ability of Appellant to recover for her injuries but simply shifted the responsibility to pay damages in certain situations from the individual employee to the local government entity, which comports with the General Assembly's general authority to modify common law rights of action....
...In the present case, Appellant sought to recover for her injuries from the City, but this action was dismissed due to her failure to send ante litem notice within six months as required by OCGA §
36-33-5(b). Her failure to send ante litem notice, and not OCGA §
36-92-3, is why she now finds herself without a remedy. Appellant also contends that OCGA §
36-92-3 as applied by the trial court is unconstitutional because, she alleges, it expands the personal immunity of governmental officers and employees in violation of the constitutional right to trial by jury....
...over from the City. That her ability to recover from the City is now foreclosed is due to her own failure to follow the requisite procedural rules and thus does not raise a constitutional issue. Appellant's final constitutional argument is that OCGA §
36-92-3 violates the right to trial by jury because recovery is limited to *766 the statutory cap set forth in OCGA §
36-92-2 and thus undermines the right to a jury trial to determine the amount of compensatory damages....
...731, 735-738(2)(b),
691 S.E.2d 218 (2010). However, since we have determined that Appellant, due to her failure to send ante litem notice, is foreclosed from any recovery, the issue of whether the statutory cap on damages is unconstitutional is now moot. Accordingly, we find that OCGA §
36-92-3 as applied by the trial court in the present case is constitutional....
CopyCited 6 times | Published | Supreme Court of Georgia | Jan 17, 2024
...his
4
Court of Clayton County. On February 12, 2021, the Defendants
filed a consolidated motion to dismiss Collington’s complaint,
arguing that: (1) Deputy Curney was an improper party pursuant to
OCGA §
36-92-3 because this statute forecloses claims against a
deputy in his individual capacity for torts allegedly committed while
he was operating a covered motor vehicle in the performance of his
official duties;4 (2) Clayton County was not a proper party under
—————————————————————
litigation. Sheriff Levon Allen now serves as the Sheriff of Clayton County.
4 The pertinent portions of OCGA §
36-92-3 provide as follows:
(a) Any local government officer or employee who commits a
tort involving the use of a covered motor vehicle while in the
performance of his or her official duties is not subject to lawsuit or
liability therefor....
...ed for an act
for which the local government entity is liable under this chapter,
the local government entity for which the local government officer
or employee was acting shall be substituted as the party
defendant.
OCGA §
36-92-3 (a) and (b).
5
OCGA §
36-92-3 (b) because the County did not employ Deputy
Curney and could not be liable for his actions; and (3) Collington’s
claims against the Sheriff were barred by sovereign immunity
because, while Collington timely presented notice of her cl...
...In response to the Defendants’ motion to dismiss, Collington
conceded that, because OCGA §
36-92-1 et seq. was amended after
the subject collision occurred,5 her claims against Deputy Curney in
his individual capacity were improper and should be dismissed. See
OCGA §
36-92-3 (a)....
...under the analysis in the Mendez concurrence. See id.
On June 9, 2021, the trial court issued an order granting the
Defendants’ motion to dismiss, concluding that: (1) Collington’s
claims against Deputy Curney should be dismissed under OCGA §
36-92-3 (a); (2) Collington’s claims against Clayton County should
be dismissed because the conduct giving rise to Collington’s injury
was committed by a deputy sheriff, not a county officer or employee;
and (3) Collington’s claims again...
CopyCited 3 times | Published | Supreme Court of Georgia | Sep 12, 2011 | 289 Ga. 750, 2011 Fulton County D. Rep. 2837
...ntending that the officers negligently operated their vehicles. [2] On November 25, 2009, Wilcox filed two motions for partial summary judgmentone as to the individual liability of Fenn and Gilliam, and one as to the constitutionality *145 of OCGA §
36-92-3. On January 14, 2010, Fenn and Gilliam filed their own motion for summary judgment based on the immunity provided to them under OCGA §
36-92-3(a)....
...On February 8, 2011, the superior court entered an order denying Wilcox's motions and granting Fenn's and Gilliam's motion, thereby finding them immune from Wilcox's action. In granting summary judgment to Fenn and Gilliam based on the immunity provided to them under OCGA §
36-92-3, the superior court upheld the constitutionality of the statute. Wilcox now appeals these rulings, arguing that OCGA §
36-92-3 must be found to be unconstitutional because it is not a part of the Georgia Tort Claims Act ("GTCA")....
...To the contrary, it is quite sensible that the Legislature extended immunity to county employees like Fenn and Gilliam in a section of the Georgia Code specifically applicable to counties. It is evident, then, that the Legislature had the constitutional authority to enact OCGA §
36-92-3. Therefore, for all of the reasons set forth above, we find that the trial court properly denied Wilcox's claim that OCGA §
36-92-3 is unconstitutional and properly granted summary judgment in favor of Fenn and Gilliam....
Published | Supreme Court of Georgia | Jan 17, 2024 | 320 Ga. 733
...County (the “Sheriff”) 3 (collectively the “Defendants”) in the State
Court of Clayton County. On February 12, 2021, the Defendants
filed a consolidated motion to dismiss Collington’s complaint,
arguing that: (1) Deputy Curney was an improper party pursuant to
OCGA §
36-92-3 because this statute forecloses claims against a
deputy in his individual capacity for torts allegedly committed while
he was operating a covered motor vehicle in the performance of his
official duties; 4 (2) Clayton County was not a pr...
...nded by this Court’s
COVID-19 Judicial Emergency Orders.
3 Victor Hill was removed from office during the pendency of this
litigation. Sheriff Levon Allen now serves as the Sheriff of Clayton County.
4 The pertinent portions of OCGA §
36-92-3 provide as follows:
(a) Any local government officer or employee who commits a tort
involving the use of a covered motor vehicle while in the
performance of his or her official duties is not subject to lawsuit or
liability therefor....
...defendant the local government entity for which the officer or
employee was acting and shall not name the local government
officer or employee individually. In the event that the local
5
OCGA §
36-92-3 (b) because the County did not employ Deputy
Curney and could not be liable for his actions; and (3) Collington’s
claims against the Sheriff were barred by sovereign immunity
because, while Collington timely presented notice of her cl...
...In response to the Defendants’ motion to dismiss, Collington
conceded that, because OCGA §
36-92-1, et seq. was amended after
the subject collision occurred,5 her claims against Deputy Curney in
his individual capacity were improper and should be dismissed. See
OCGA §
36-92-3 (a)....
...named for an act
for which the local government entity is liable under this chapter,
the local government entity for which the local government officer
or employee was acting shall be substituted as the party
defendant.
OCGA §
36-92-3 (a) and (b).
5 The amendments to OCGA §
36-92-1, et seq....
...under the analysis in the Mendez concurrence. See id.
On June 9, 2021, the trial court issued an order granting the
Defendants’ motion to dismiss, concluding that: (1) Collington’s
claims against Deputy Curney should be dismissed under OCGA §
36-92-3 (a); (2) Collington’s claims against Clayton County should
be dismissed because the conduct giving rise to Collington’s injury
was committed by a deputy sheriff, not a county officer or employee;
and (3) Collington’s claims again...
