O.C.G.A. § 50-21-20 (2019)

Statute text

This article shall be known and may be cited as "The Georgia Tort Claims Act."

History

(Code 1981, § 50-21-20, enacted by Ga. L. 1992, p. 1883, § 1.)

Annotations

Law reviews. - For annual survey of law of torts, see 44 Mercer L. Rev. 375 (1992). For article, "Local Government Tort Liability: the Summer of '92," see 9 Ga. St. U.L. Rev. 405 (1993). For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004). For annual survey of law of torts, see 56 Mercer L. Rev. 415 (2004). For annual survey of trial practice and procedure, see 56 Mercer L. Rev. 433 (2004). For annual survey of administrative law, see 57 Mercer L. Rev. 1 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For annual survey of tort law, see 58 Mercer L. Rev. 385 (2006). For survey article on administrative law, see 60 Mercer L. Rev. 1 (2008). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For annual survey of law on administrative law, see 62 Mercer L. Rev. 1 (2010). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015). For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For annual survey on local government law, see 70 Mercer L. Rev. 177 (2018). For note, "Seay v. Cleveland: Resolution of the Ministerial Discretionary Dichotomy," see 51 Mercer L. Rev. 787 (2000). For note, "The Georgia Tort Claims Act: A License for Negligence in Child Deprivation Cases?," see 18 Ga. St. U.L. Rev. 795 (2002). For note, "Finding Immunity: Manders v. Lee and the Erosion of 1983 Liability," see 55 Mercer L. Rev. 1505 (2004).

JUDICIAL DECISIONS

Constitutionality. - Statutory scheme under which plaintiffs having tort claims against the state have the benefit of the broad waiver of sovereign immunity afforded by the Georgia Tort Claims Act, O.C.G.A. Art. 2, Ch. 21, T. 50, which does not extend to counties, whereas a county's waiver of immunity is allowed only to the extent of insurance purchased for negligence arising from the use of a motor vehicle, results in unequal treatment, however, the scheme does not violate due process or equal protection. Woodard v. Laurens County, 265 Ga. 404, 456 S.E.2d 581 (1995).

O.C.G.A. Art. 2, Ch. 21, T. 50 does not violate Ga. Const. 1983, Art. I, Sec. II, Para. I since the statutes were enacted under the authority of an amendment approved by a majority of the voters. Dollar v. Dalton Pub. Schs., 233 Ga. App. 827, 505 S.E.2d 789 (1998).

Court had subject matter jurisdiction. - Trial court erred in granting the Department of Labor's motion to dismiss because the applicant for unemployment benefits carried the burden of showing that the trial court had subject matter jurisdiction over the applicant's claims for negligently disclosing personal information, breach of fiduciary duty, and invasion of privacy, which were tort claims that were not excepted from the waiver of sovereign immunity for tort claims pursuant to the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq. McConnell v. Dep't of Labor, 345 Ga. App. 669, 814 S.E.2d 790 (2018).

Medicaid status irrelevant to constitutionality. - Grant of official immunity from a malpractice suit to a state-employed doctor based on the patient's status as a Medicaid patient did not violate the constitutional rights of the patient's parents as the due process and equal protection clauses of the U.S. and Georgia Constitutions protected only rights, and a waiver of sovereign immunity under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., was merely a privilege. Porter v. Guill, 298 Ga. App. 782, 681 S.E.2d 230 (2009).

Construction with Georgia Recreational Property Act. - 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. Matheson v. Ga. DOT, 280 Ga. App. 192, 633 S.E.2d 569 (2006).

Georgia Lottery Corporation. - 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 the 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).

Tolling of claims against municipal corporations. - In a tort action brought by a passenger against a regional transportation authority, the reversal of the denial of the authority's motion for judgment on the pleadings was upheld because, by its terms, O.C.G.A. § 36-33-5(d) permitted the tolling of the period of limitation only for claims against municipal corporations and it was not a municipal corporation. Foster v. Ga. Reg'l Transp. Auth., 297 Ga. 714, 777 S.E.2d 446 (2015).

Waiver for suits seeking contribution and indemnity. - Georgia Torts Claim Act, O.C.G.A. § 50-21-20 et seq., waived sovereign immunity for suits seeking contribution and indemnity from the state when the state was a joint tortfeasor if the state's tortious activity did not fall within one of the waiver exceptions listed in O.C.G.A. § 50-21-24. DOT v. Montgomery Tank Lines, Inc., 276 Ga. 105, 575 S.E.2d 487 (2003).

Article not exclusive means to waive immunity. - Considering the 1991 constitutional amendment as a whole (Ga. Const. 1983, Art. I, Sec. II, Para. IX), sovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver; thus, the enactment of the State Tort Claims Act, O.C.G.A. Art 2, Ch. 21, T. 50, was but one of the ways the legislature could constitutionally waive sovereign immunity. Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994).

Right of action provided in the Georgia Whistleblower Act, O.C.G.A. § 45-1-4, is a waiver of Georgia's sovereign immunity independent of the waiver in the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq. Pattee v. Ga. Ports Auth., 477 F. Supp. 2d 1253 (S.D. Ga. Dec. 18, 2006).

Nuisance exception to sovereign immunity. - The 1990 constitutional amendment eliminating the insurance waiver provision and substituting a Tort Claims Act, O.C.G.A. Art. 2, Ch. 21, T. 50, waiver did not conflict with the nuisance exception to sovereign immunity and a municipality can be liable for creating or maintaining a nuisance which constitutes a danger to life and health or a taking of property. City of Thomasville v. Shank, 263 Ga. 624, 437 S.E.2d 306 (1993).

Intra-military immunity. - Trial court erred in denying state defense agency's motion for summary judgment on the civilian technician's personal injury action brought pursuant to the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., as the state defense agency had intra-military immunity from that claim since the claim arose out of work that was inherently military in nature and the civilian technician was acting in a military capacity repairing military equipment at the time of injury. Ga. DOD v. Johnson, 262 Ga. App. 475, 585 S.E.2d 907 (2003).

Design standards exception. - Summary judgment for the Georgia Department of Transportation (DOT) was improper as the affidavits of the plaintiffs' expert, a DOT witness, and a City's Director of Public Works created a fact issue as to whether the DOT's failure to consider excess fill soil disposal in DOT's design plans complied with generally accepted engineering and design standards under O.C.G.A. § 50-21-24(10); the design standards exception was a limitation on the exceptions to a state's sovereign immunity established by the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq. Reidling v. City of Gainesville, 280 Ga. App. 698, 634 S.E.2d 862 (2006).

Georgia Military College is entitled to sovereign immunity except to the extent sovereign immunity has been waived. Georgia Military College v. Santamorena, 237 Ga. App. 58, 514 S.E.2d 82 (1999).

Physicians employed by state medical college. - 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 their 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 and 50-21-25(b). Shekhawat v. Jones, 293 Ga. 468, 746 S.E.2d 89 (2013).

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).

College campus police officers. - 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).

School superintendent not immune. - 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).

Claim time barred for display of skeletal remains. - Adult child's tort claims against a state university board of regents for the autopsy, study, and display of the parent's skeletal remains in a glass case in a medical school for decades were dismissed because the claims accrued no later than 1950, at which time sovereign immunity applied to Georgia and the state's agencies; thus, a trial court erred in denying the board's motions for summary judgment and dismissal. Bd. of Regents v. Oglesby, 264 Ga. App. 602, 591 S.E.2d 417 (2003).

Failure to comply with notice provision. - After a truck driver became involved in an altercation with a Georgia Port Authority employee during a delivery and was barred from the Savannah River terminal for 30 days, the driver's claim under the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., that the driver suffered severe economic loss as a result of being barred from the terminal was procedurally barred because the driver failed to comply with the Act's notice provision, O.C.G.A. § 50-21-26. Gambell v. Ga. Ports Auth., 276 Ga. App. 115, 622 S.E.2d 464 (2005).

Trial court correctly dismissed the parents' claim for injuries incurred by their son while in juvenile detention based on their failure to demonstrate waiver of sovereign immunity under the Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20 et seq., because the parents failed to comply with GTCA by not stating an amount of loss; thus, the parents' ante litem notice was fatally deficient. Douglas v. Dep't of Juvenile Justice, 349 Ga. App. 10, 825 S.E.2d 395 (2019).

Notice requirements. - Because an injured motorist sent ante litem notice of a negligence action against the Georgia Department of Transportation to the Commissioner of the Department of Administrative Services, rather than to the Risk Management Division of that department, as required by O.C.G.A. § 50-21-26, the notice did not meet the strict compliance requirements of the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq.; the trial court properly granted the state's motion to dismiss the complaint for lack of subject matter jurisdiction over the action. Shelnutt v. Ga. DOT, 272 Ga. App. 109, 611 S.E.2d 762 (2005).

Georgia Supreme Court explained that the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., does not require that a claimant give notice of the entire loss, the complete loss, or the total loss; instead, the plain language requires notice of the amount of the loss claimed at that time, within the belief and knowledge of the claimant, as may be practicable under the circumstances. Douglas v. Dep't of Juvenile Justice, 349 Ga. App. 10, 825 S.E.2d 395 (2019).

Immunity applies to county sheriffs. - 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, 2007 Ga. LEXIS 766 (Ga. 2007).

Official immunity applied. - Summary judgment based on official immunity for a school teacher sued over a student's death was proper as certain school employees were immune from liability for supervising students on a school bus and the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., was inapplicable. Aliffi v. Liberty County Sch. Dist., 259 Ga. App. 713, 578 S.E.2d 146 (2003).

In a wrongful death action, the Georgia DOT was entitled to sovereign immunity under O.C.G.A. § 50-21-24(9). Furthermore, O.C.G.A. § 50-21-24(10) granted immunity to the DOT from a claim that the fatal accident was proximately caused by a deficiently designed intersection, especially since no evidence was presented that the intersection was not initially designed in substantial compliance with existing engineering or design standards; moreover, under both O.C.G.A. §§ 32-6-50 and 32-6-51(a)(1), the decision of the county department of transportation, and the department's employees, to install the traffic signal necessarily entailed discretionary acts done to perform a specific duty or a mandatory fixed obligation for which mandamus would lie to compel performance, entitling the county and the county's employees to official or qualified immunity. Murray v. Ga. DOT, 284 Ga. App. 263, 644 S.E.2d 290 (2007).

Department of Human Resources cannot be held liable for the negligence of an independent contractor. The Georgia General Assembly has spoken by removing from the pool of state employees covered by the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., independent contractors and corporations, and by failing to include in O.C.G.A. § 51-2-5 a waiver of sovereign immunity. Thus, the plaintiff's claim of negligence, based on a failure to notify of the child's sickle cell anemia, against the department was barred by sovereign immunity. In re Carter, 288 Ga. App. 276, 653 S.E.2d 860 (2007).

Trial court properly dismissed a parent's tort claims against the school district and the district's employees as the employees were immune from suit and excluded from the limited waiver provision under both O.C.G.A. §§ 50-21-22(5) and 50-21-23(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).

Community service boards. - 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).

State had no liability for false imprisonment claim. - Trial court did not err in dismissing on sovereign immunity grounds an inmate's tort claim alleging false imprisonment against the Department of Corrections since the state was shielded from liability against a false imprisonment claim pursuant to O.C.G.A. § 50-21-24(7). Watson v. Ga. Dep't of Corr., 285 Ga. App. 143, 645 S.E.2d 629 (2007).

Assault and battery immunity applied in prison death case. - Parent's wrongful death suit against a prison where the parent's adult child was incarcerated was properly dismissed by the trial court as the suit was barred by the waiver of sovereign immunity set forth in the Georgia Tort Claims Act, O.C.G.A. § 50-21-24(7), since the adult child was killed as a result of an assault and battery committed by a cell mate. Southerland v. Ga. Dep't of Corr., 293 Ga. App. 56, 666 S.E.2d 383 (2008).

Georgia Tort Claims Act did not bar suit. - Georgia Tort Claims Act (GTCA), O.C.G.A. § 50-21-20 et seq., did not bar a state employees' breach and impairment of contract suit against the Employees Retirement System of the State of Georgia as the suit sounded in contract and O.C.G.A. § 50-21-1, which was not part of the GTCA, which waived sovereign immunity in an action ex contractu for the breach of a written contract. Alverson v. Employees' Ret. Sys., 272 Ga. App. 389, 613 S.E.2d 119 (2005).

Waiver of immunity for inmate injured while working on warden's home. - 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).

Slip and fall on sidewalk. - 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).

Cited in Seay v. Cleveland, 270 Ga. 64, 508 S.E.2d 159 (1998); DOT v. Cox, 246 Ga. App. 221, 540 S.E.2d 218 (2000); CSX Transp., Inc. v. City of Garden City, 277 Ga. 248, 588 S.E.2d 688 (2003); Ga. Forestry Comm'n v. Canady, 280 Ga. 825, 632 S.E.2d 105 (2006); Perdue v. Athens Tech. College, 283 Ga. App. 404, 641 S.E.2d 631 (2007); State of Ga. v. Haynes, 285 Ga. App. 637, 647 S.E.2d 331 (2007); Southerland v. Ga. Dep't of Corr., 293 Ga. App. 56, 666 S.E.2d 383 (2008); Sadler v. DOT, 311 Ga. App. 601, 716 S.E.2d 639 (2011); Considine v. Murphy, 297 Ga. 164, 773 S.E.2d 176 (2015); McConnell v. Department of Labor, 337 Ga. App. 457, 787 S.E.2d 794 (2016); 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).

RESEARCH REFERENCES

18A Am. Jur. Pleading and Practice Forms, Municipal, School, and State Tort Liability, § 1 et seq.

ALR. - Liability of municipality or other governmental unit for failure to provide police protection from crime, 90 A.L.R.5th 273.

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.