Torts

• Jurisdiction: Georgia,United States
• Publication year: 2020
• Citation: Vol. 71 No. 1

Torts

Jarome E. Gautreaux

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Torts: A Two-Year Survey

by Jarome E. Gautreaux^*

I. Introduction

This Article addresses recent cases decided during the two-year survey period in the area of torts.¹ It includes cases in most of the areas of tort law, including medical malpractice, and addresses defenses such as immunity.

II. Immunity

The scope of county immunity was at issue in Wyno v. Lowndes County,² in which the Georgia Supreme Court addressed official immunity (also called qualified immunity) of county employees.³ The case involved a deadly attack by a dog on a neighbor after numerous complaints were made to the county about the dog. The plaintiff alleged that the failure of the county employees to take appropriate protective action prior to the attack was a failure to perform a ministerial act (thus overcoming the county's immunity), which is defined as an act that is simple and specific.⁴

The court held that the county employees' actions in determining what actions to take were discretionary in nature, because "the [policy at issue] required the [employee] to perform a discretionary act to determine if the policy was applicable."⁵ The policy at issue vested the

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employees with some discretion to determine appropriate actions to take after complaints of a dangerous dog were received.⁶

State immunity under the Georgia Tort Claims Act (GTCA)⁷ was at issue in Britt v. Jackson.⁸ The case arose out of a vehicle accident in which Britt, a passenger, was injured when the vehicle collided with a vehicle operated by a Department of Corrections (DoC) employee. At the time of the wreck, the vehicle operated by the DoC employee was assisting in a police search for suspects and was attempting to move out of the way for law enforcement vehicles to apprehend a vehicle in front of the DOC driver's vehicle.⁹

The Georgia Court of Appeals held that these actions were authorized by DoC policy and thus were within the scope of immunity afforded by O.C.G.A. § 50-21-24(6),¹⁰ the provision that extends immunity to "losses resulting from . . . the method of providing law enforcement, police, or fire protection."¹¹

The consequences of not being extremely careful about the use of a cell phone are illustrated by Stephens v. Coan.¹² While working from home, Stephens accidentally called his supervisor, Coan, at the Georgia Subsequent Injury Trust Fund, and the supervisor overheard a conversation between Stephens and his wife, in which Stephens made remarks about Coan's job performance.¹³

Not surprisingly, Coan confronted Stephens upon Stephens' return to the office, and Stephens then resigned. Stephens and his wife then brought claims for invasion of privacy against Coan.¹⁴

The court affirmed the trial court's dismissal, holding that the actions taken by Coan—his listening to the call—were taken within the scope of his official duties with the state.¹⁵

In Georgia Department of Administrative Services v. McCoy,¹⁶ the court of appeals considered whether the General Liability Agreement (GLA) of the State Liability Trust Fund provides coverage for acts of

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malicious prosecution committed by employees of the Department of Family and Children Services (DFCS).¹⁷

The plaintiff, McCoy, had obtained a large judgment against an employee of DFCS, based on malicious prosecution claims. McCoy then sought to obtain coverage for the judgment from Department of Administrative Services (DOAS) under the terms of the GLA.¹⁸

The court of appeals, in its majority opinion, held that there was no coverage for the claims of malicious prosecution under the GLA.¹⁹ To reach this conclusion, the court reasoned that, first, there were no claims that the torts were committed within the scope of the defendant's employment with the state.²⁰ This was also admitted at oral argument.²¹

The court held that the GLA was clear in providing no coverage for acts taken by State employees outside the scope of employment.²² The court rejected the argument by the plaintiff-appellee that there was an ambiguity in the GLA that should have been read in her favor.²³ Two judges dissented, concluding that the GLA was ambiguous and should have provided coverage.²⁴

One of the frequently litigated exceptions to state immunity concerns the negligent design exception found in the GTCA.²⁵ In Department of Transportation v. Balamo,²⁶ the court of appeals again addressed a case involving this exception for a roadway that allowed rainwater to accumulate and contribute to an automobile wreck.²⁷

The main problem, according to the court, was that there was no evidence from the plaintiff's expert that the design standards in effect at the time of the design of the roadway were violated, and further, the expert characterized the problem as a maintenance problem rather than a design issue.²⁸ In such circumstances, the state was immune.²⁹

One of the most litigated and difficult-to-apply distinctions in immunity cases is the distinction between ministerial and discretionary

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functions. This seems particularly true in cases involving school districts. In Barnett v. Caldwell,³⁰ a student died as a result of his injuries when he and another student engaged in horseplay after the teacher left the classroom. Suit was brought against the teacher, who argued that she was protected by immunity because her action of leaving the classroom was a discretionary action.³¹

The school handbook required that all students be supervised at all times but did not further explain exactly what constituted "supervision." There was testimony that supervision included having an ability to see the students, which the teacher could not do when she left the room.³² Nonetheless, the supreme court held that this policy of constant supervision gave the teacher discretion, even discretion to simply leave the room, and thus, she was entitled to immunity.³³

III. Ante Litem Notices

Nearly every survey period includes cases involving alleged defects in ante litem notices, and this period was no different. The requirements of ante litem notices apparently continue to vex practitioners.

In Harrell v. City of Griffin,³⁴ the defect at issue was the amount of the loss claimed.³⁵ O.C.G.A. § 36-33-5(e)³⁶ required the inclusion of an amount of the damages claimed.³⁷ No monetary amount, or range of amounts, was included in the ante litem notice, so the trial court dismissed the claim, and the court of appeals affirmed.³⁸

The person to whom an ante litem notice must be provided was at issue in Moats v. Mendez.³⁹ The case arose from an automobile wreck, and Mendez sued the sheriff of Polk County, Johnny Moats, in his official capacity, and the deputy sheriff involved in the wreck in her individual and official capacities.⁴⁰

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An ante litem notice was provided to the County via service on the Chairman of the Board of Commissioners, but no ante litem notice was sent to the Sheriff.⁴¹

A splintered court of appeals held that the ante litem notice was not proper because it was not served on the Sheriff, who is considered a separate constitutional entity from the County, and thus, entitled to a separate ante litem notice.⁴² Many practitioners were likely surprised by this result, since sheriffs are often considered part of the counties they serve.

Whether an ante litem notice is sufficient if presented to a county attorney employed by the county in-house, as opposed to an attorney privately employed but appointed as the county attorney, was resolved in Croy v. Whitfield County.⁴³ After an automobile wreck, a suit was brought against Whitfield County. The ante litem notice was served on the county attorney, who was not a county employee but was appointed as the county attorney.⁴⁴

The supreme court held that this notice was sufficient.⁴⁵ The supreme court rejected the distinction drawn by the court of appeals, at least for ante litem notices, between in-house county attorneys and those appointed as county attorneys but privately employed.⁴⁶

The requirements of ante litem notices to municipalities continue to be the subject of appellate court scrutiny. In Williams v. City of Atlanta,⁴⁷ the court of appeals held that a pedestrian's ante litem notice was insufficient, and thus, affirmed the grant of summary judgment to the City.⁴⁸

The pedestrian alleged that he fell into an uncovered water meter hole and was injured. He sent an ante litem notice specifying an address that later turned out to not have a water meter.⁴⁹ Also, in the litigation, the address of the incident was different from the address specified in the ante litem notice, and the two locations were approximately 0.3 miles apart.⁵⁰ The court focused on the fact that the

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incorrect address did not provide sufficient information for the City to have conducted an investigation into the claims.⁵¹

IV. Food Poisoning

The Georgia Supreme Court clarified the burden on non-movants facing summary judgment motions in food poisoning cases in Patterson v. Kevon, LLC.⁵² The facts arose from food—alleged to contain pathogens and to be undercooked—that plaintiffs consumed at a wedding reception.⁵³ The problem was the one faced in many such cases: which food caused the problems that began a few days later? In this case, the caterer, Big Kev's, produced testimony that they had safe food-handling procedures and that other guests did not become ill. The plaintiffs produced evidence that some other guests did in fact become ill, and the plaintiffs...