City of Atlanta v. Mitcham ( 2015 )


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  • 296 Ga. 576
    FINAL COPY
    S14G0619. CITY OF ATLANTA et al. v. MITCHAM.
    THOMPSON, Chief Justice.
    We granted a petition for writ of certiorari in this case to determine
    whether the Court of Appeals used the proper analysis when it determined that
    the provision of medical care by the City of Atlanta to inmates in its custody
    was a ministerial function for which the City of Atlanta’s sovereign immunity
    had been waived. See City of Atlanta v. Mitcham, 
    325 Ga. App. 481
     (751 SE2d
    598) (2013). Because we find that the care of inmates in the custody of a
    municipal corporation is a governmental function for which sovereign immunity
    has not been waived, we reverse.
    Appellee Barto Mitcham filed a negligence action against appellants, the
    City of Atlanta (the “City”) and George Turner, in his official capacity as the
    Chief of Police for the City of Atlanta Police Department, alleging that Mitcham
    was seriously injured as a result of appellants’ failure to provide him necessary
    medical treatment while in their custody. Mitcham specifically alleged that after
    he was arrested by the City of Atlanta Police Department, he became ill because
    of low blood sugar associated with diabetes. He was taken to the hospital, and
    upon his discharge and release back into the custody of the City, Atlanta Police
    Department officers were informed of his diabetic condition and the need to
    monitor and regulate his insulin levels. He alleged they failed to do so, causing
    him further illness and serious and permanent injuries.
    Appellants answered the complaint and filed a joint motion to dismiss on
    sovereign immunity grounds. See OCGA § 9-11-12 (b) (6). The trial court
    denied the motion, finding that Mitcham’s claims were not barred by sovereign
    immunity because the provision of “medical attention and/or care for an inmate
    is a ministerial act which does not involve the exercise of discretion.” Relying
    primarily on its opinion in Cantrell v. Thurman, 
    231 Ga. App. 510
     (499 SE2d
    416) (1998), a case involving claims against a county sheriff and the
    constitutional waiver of the sovereign immunity of the state and its departments
    and agencies under Article I, Section II, Paragraph IX (d) of the Georgia
    Constitution, the Court of Appeals affirmed, holding that “the provision of
    medical care to inmates in the City’s and Turner’s custody was a ministerial act
    and, because it was a ministerial act, sovereign immunity was waived pursuant
    2
    to OCGA § 36-33-1 (b).” 1 We granted certiorari.
    1. A motion to dismiss for failure to state a claim should not be granted
    unless the allegations of the complaint demonstrate to a certainty that the
    plaintiff would be entitled to no relief under any state of facts which could be
    proved in support thereof. Anderson v. Flake, 
    267 Ga. 498
    , 501 (2) (480 SE2d
    10) (1997). Appellants moved to dismiss Mitcham’s claims on the ground of
    sovereign immunity. Under Georgia law, municipal corporations are protected
    by sovereign immunity pursuant not to Article I of the Constitution but rather
    Article IX, Section II, Paragraph IX, unless that immunity is waived by the
    General Assembly. See Godfrey v. Ga. Interlocal Risk Mgmt. Agency, 
    290 Ga. 211
    , 214 (719 SE2d 412) (2011) (absent legislative scheme providing for
    specific waiver, there is no waiver of municipal sovereign immunity). See also
    1
    Article I, Section II, Paragraph IX (d) provides:
    Except as specifically provided by the General Assembly in a State Tort
    Claims Act, all officers and employees of the state or its departments and
    agencies may be subject to suit and may be liable for injuries and damages
    caused by the negligent performance of, or negligent failure to perform, their
    ministerial functions and may be liable for injuries and damages if they act
    with actual malice or with actual intent to cause injury in the performance of
    their official functions. Except as provided in this subparagraph, officers and
    employees of the state or its departments and agencies shall not be subject to
    suit or liability, and no judgment shall be entered against them, for the
    performance or nonperformance of their official functions. . . .
    3
    City of Thomaston v. Bridges, 
    264 Ga. 4
     (439 SE2d 906) (1994). With
    particular regard to municipal corporations, our General Assembly has enacted
    OCGA § 36-33-1 which reiterates that “it is the public policy of the State of
    Georgia that there is no waiver of the sovereign immunity of municipal
    corporations of the state and such municipal corporations shall be immune from
    liability from damages.” OCGA § 36-33-1 (a). The same statute, however, also
    provides for a narrow waiver of a municipal corporation’s sovereign immunity,
    expressly providing in subsection (b) that “[m]unicipal corporations shall not
    be liable for failure to perform or for errors in performing their legislative or
    judicial powers.       For neglect to perform or for improper or unskillful
    performance of their ministerial duties, they shall be liable.” 2 OCGA § 36-33-1
    (b). This provision has for more than a century been interpreted to mean that
    municipal corporations are immune from liability for acts taken in performance
    2
    A further waiver of a municipal corporation’s sovereign immunity is found in
    subsection (a) which provides that a “municipal corporation shall not waive its immunity by
    the purchase of liability insurance, except as provided in Code Section 33-24-51 or 36-92-2
    or unless the policy of insurance issued covers an occurrence for which the defense of
    sovereign immunity is available, and then only to the extent of the limits of such insurance
    policy.” See also Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 
    294 Ga. 593
    , 600 (755 SE2d 184) (2014) (municipality may be liable for creating or maintaining a
    nuisance which constitutes either a danger to life and health or a taking of property); OCGA
    § 32-4-93 (liability of municipalities for defects in public roads).
    4
    of a governmental function but may be liable for the negligent performance of
    their ministerial duties. See Koehler v. Massell, 
    229 Ga. 359
    , 361-362 (3) (191
    SE2d 830) (1972); Mayor and Aldermen of Savannah v. Jones, 
    149 Ga. 139
    ,
    141-142 (
    99 SE 294
    ) (1919); Wright v. City Council of Augusta, 
    78 Ga. 241
    ,
    243-244 (1886). The propriety of the trial court’s ruling on appellants’ motion
    to dismiss thus turns on whether appellants’ failure to provide medical treatment
    to an inmate in the City’s custody involved a governmental function.
    2. Governmental functions traditionally have been defined as those of a
    purely public nature, intended for the benefit of the public at large, without
    pretense of private gain to the municipality. See Cornelisen v. City of Atlanta,
    
    146 Ga. 416
    , 419 (
    91 SE 415
    ) (1917). The exemption from liability for
    governmental functions “is placed upon the ground that the service is performed
    by the corporation in obedience to an act of the legislature, is one in which the
    corporation has no particular interest and from which it derives no special
    benefit in its corporate capacity.” Wright, supra, 
    78 Ga. at 243
    , quoting Dillon
    (2 Municipal Corp. § 976, 3rd ed.). Ministerial functions, in comparison, are
    recognized as those involving the “exercise of some private franchise, or some
    franchise conferred upon [the municipal corporation] by law which it may
    5
    exercise for the private profit or convenience of the corporation or for the
    convenience of its citizens alone, in which the general public has no interest.”3
    Love v. City of Atlanta, 
    95 Ga. 129
    , 131 (
    22 SE 29
    ) (1894).
    The exemption from liability for governmental functions set out in OCGA
    § 36-33-1 (b) thus left in place “the common-law doctrine, frequently applied
    in this State before and since the adoption of the code, of non-liability for
    3
    Appellants argue that the term “ministerial” means proprietary, and therefore, only
    those functions performed by a municipal government which generate profit for the
    corporation can be classified as ministerial. This narrow interpretation may originate from
    an improper truncation of the above quoted language so as to limit ministerial functions to
    those functions “exercise[d] for the private profit” and from the emphasis placed upon the
    proprietary nature of a function in some cases. See, e.g., City of Atlanta v. Chambers, 
    205 Ga. App. 834
    , 835-836 (424 SE2d 19) (1992) (focusing on whether character of municipal
    function is primarily a source of revenue or is being used primarily for the benefit of the
    public regardless of incidental generation of revenues); City of Gainesville v. Pritchett, 
    129 Ga. App. 475
    , 476 (199 SE2d 889) (1973) (equating ministerial with proprietary). While we
    acknowledge that our courts on occasion have considered the fact that a function generates
    revenue for the municipal corporation important in determining whether it constitutes a
    governmental or ministerial function, the definitions attributed to these terms by this Court
    make clear that although profit or revenue generation may, in certain circumstances, be
    evidence of the private nature of a function, it is by no means the only factor to be
    considered. See Cornelisen, 
    supra,
     
    146 Ga. at 419
     (public character of duties not affected
    by purely incidental profit from city’s operation of park); Gooden v. City of Atlanta, 
    242 Ga. App. 786
    , 788 (531 SE2d 364) (2000) (finding operation of public swimming pool primarily
    for public benefit and not for revenue production was a governmental function); Koehler v.
    City of Atlanta, 
    221 Ga. App. 534
    , 535 (472 SE2d 91) (1996) (operation of museum,
    Cyclorama, for public benefit is a governmental function); Banks v. City of Albany, 
    83 Ga. App. 640
    , 643-644 (64 SE2d 93) (1951) (operation of fire department a governmental
    function even where fire protection extended to property beyond corporate limits only upon
    payment of fee); Mayor and Aldermen of Savannah v. Lyons, 
    54 Ga. App. 661
    , 665 (
    189 SE 63
    ) (1936) (operation and maintenance of airport was a government function notwithstanding
    fees and revenue received from lessees).
    6
    conduct of officers, agents and servants of municipal corporations in respect to
    duties devolving upon them in virtue of the sovereign or governmental functions
    of the municipality.” Brannan v. City of Brunswick, 
    49 Ga. App. 62
     (
    147 SE 186
    ) (1934). It reflects a municipal corporation’s dual functions, performing in
    the exercise of its corporate functions two classes of service, governmental
    duties and private corporate, or ministerial, duties. Jones, 
    supra,
     
    149 Ga. at 141
    . See Purser v. Dodge County, 
    188 Ga. 250
    , 251 (3 SE2d 574) (1939)
    (recognizing that municipal corporations act in dual capacities, “exercising
    powers pertaining not only to their delegated sovereignty, but powers of
    ministerial or proprietary in character.”). As this Court has recognized with
    approval:
    A municipal corporation has a dual character, the one public
    and the other private, and exercises correspondingly two-fold
    functions, the one governmental and legislative, and the other
    private and ministerial. In its public character, it acts as an agency
    of the State to enable it the better to govern that portion of its
    people residing within the municipality, and to this end there is
    granted to or imposed upon it, by the charter of its creation, powers
    and duties to be exercised and performed exclusively for public
    governmental purposes. These powers are legislative and
    discretionary, and the municipality is exempt from liability for an
    injury resulting from the failure to exercise them or from their
    improper or negligent exercise. In its corporate and private
    character there are granted unto it privileges and powers to be
    7
    exercised for its own private advantage, which are for public
    purposes in no other sense than that the public derives a common
    benefit from the proper discharge of the duties imposed or assumed
    in consideration of the privileges and powers conferred. This latter
    class of powers and duties are not discretionary, but ministerial and
    absolute; and, for an injury resulting from negligence in their
    exercise or performance, the municipality is liable in a civil action
    for damages, in the same manner as an individual or private
    corporation.
    Mayor and Council of Dalton v. Wilson, 
    118 Ga. 100
    , 102 (
    44 SE 830
    ) (1903),
    quoting Jones v. Williamsburg, 
    97 Va. 722
    , 723-724 (
    34 SE 883
    ) (Va. 1900).
    This Court on occasion has acknowledged the difficulty in determining to
    which of the two classes a function belongs, the proper classification depending
    in each case on an interpretation of the powers and duties delegated to the
    corporation and the character of the function being performed. See Mayor and
    Council of Dalton, 
    supra,
     
    118 Ga. at 102-103
    ; Love, 
    supra,
     
    95 Ga. at 131
    . Our
    courts, however, have had no difficulty concluding that the operation of a jail
    and the care and treatment of individuals in police custody are purely
    governmental functions related to the governmental duty to ensure public safety
    and maintain order for the benefit of all citizens. See Hurley v. City of Atlanta,
    
    208 Ga. 457
    , 457-459 (67 SE2d 571) (1951) (dismissing writ of certiorari as
    improvidently granted while approving Court of Appeals’ ruling that “keep and
    8
    maintenance of the convict . . . was a governmental function, for the negligent
    performance of which the city was not liable to him in damages”); Gray v.
    Mayor and City of Griffin, 
    111 Ga. 361
    , 363 (
    36 SE 792
    ) (1900) (when city
    “maintains a prison wherein to confine offenders . . . for safe-keeping until they
    can be tried, it is exercising” a governmental power); Nisbet v. City of Atlanta,
    
    97 Ga. 650
     (
    25 SE 173
    ) (1895) (municipality not liable for death of convict
    while doing work in police custody and caused by city foreman’s failure to
    provide medical treatment because at the time the municipal corporation was
    “exercising governmental powers and discharging governmental duties”);
    Thomas v. Williams, 
    105 Ga. App. 321
    , 325 (2), (3) (124 SE2d 409) (1962)
    (municipality not liable for negligent acts of city officer in care of prisoner in
    city custody). See also OCGA § 36-33-3 (“A municipal corporation shall not
    be liable for torts of policemen or other officers engaged in the discharge of the
    duties imposed on them by law.”). It has been uniformly held, therefore, that
    there can be no action for damages against a municipal corporation for its failure
    to provide medical care to an inmate regardless of the presence of negligence.4
    4
    That is not to say that all such plaintiffs are without recourse. Allegations that a
    government denied or provided inadequate medical treatment to one whom it is punishing
    by incarceration in some circumstances have been held to state a cause of action under 42
    9
    We find this precedent binding and reaffirm that when a municipal corporation,
    through the exercise of its governmental power, provides or fails to provide
    medical treatment to an inmate in its custody it is performing a governmental
    function for which its sovereign immunity has not been waived by the enactment
    of OCGA § 36-33-1 (b). That a municipal corporation performs this function
    under the mandate of OCGA § 42-5-2 (a),5 a statute requiring municipal
    corporations and other governmental entities to provide medical treatment to
    inmates in their custody, is further evidence that it is a function governmental
    in nature; that is, one performed in obedience to an act of the legislature, for the
    benefit of the general public, and for which the municipal corporation derives
    no special benefit.6
    USCA § 1983. See Estelle v. Gamble, 
    429 U. S. 97
    , 103-104 (97 SCt 285, 50 LE2d 251)
    (1976); Hughes v. Noble, 295 F2d 495 (5th Cir. 1961); Davis v. City of Roswell, 
    250 Ga. 8
    (295 SE2d 317) (1982).
    5
    OCGA § 42-5-2 (a) states that “it shall be the responsibility of the governmental
    unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate,
    furnishing him . . . any needed medical and hospital attention . . . .”
    6
    Although Mitcham argues that the allegations in his complaint deal only with the
    actual decision not to provide him with medical care and our focus in determining the nature
    of the function, and thus the extent of any waiver, should be limited to consideration of that
    narrowly defined act, the sovereign immunity of a municipal corporation cannot be parsed
    in this manner. The language of OCGA § 36-33-1 (b) and our cases make clear that in
    determining whether the sovereign immunity of a municipal corporation has been waived,
    the relevant inquiry focuses not on the specific act alleged to have caused harm but on the
    10
    The Court of Appeals acknowledged the constitutional and statutory duty
    of state and local governments to provide medical treatment to inmates in their
    custody but found the mandatory nature of this duty, i.e., the absence of any
    discretion in whether the duty should be performed, supported its conclusion
    that the provision of medical treatment to inmates by a municipal corporation
    is a “ministerial act.”7 See City of Atlanta v. Mitcham, supra, 325 Ga. App. at
    484. This analysis and its reference to a municipal corporation’s “ministerial
    acts” rather than its “ministerial functions” reflects a confusion regarding the
    separate doctrines of sovereign and official immunity and the substantive
    differences between the ministerial functions performed by a government body
    and the ministerial acts of an individual.
    As stated, a municipal corporation is immune from liability for acts taken
    in the performance of its governmental functions but it may be held liable for the
    negligent performance of its ministerial functions. The determination of
    nature of the function being performed by or on behalf of the municipal corporation.
    7
    Although not necessary for resolution of this appeal, we note our rejection in
    Murphy, supra, 282 Ga. at 199-200, of the notion that for purposes of official immunity “a
    statutorily-mandated action is the equivalent of a ministerial act that deprives the actor of
    official immunity if done negligently” and our discussion of the differences between the
    statutorily-mandated action in that case and a “ministerial act.”
    11
    whether a function is governmental or ministerial in character for purposes of
    municipal sovereign immunity focuses broadly on the nature, purpose, and
    intended beneficiaries of the function performed by the municipal corporation.
    See Jones, 
    supra,
     
    149 Ga. at 141-142
    ; Love, 
    supra,
     
    95 Ga. at 131
    .              In
    comparison, the term “ministerial act,” as it applies to the waiver of an
    individual’s official immunity under Article I, Section II, Paragraph IX (d) of
    the Georgia Constitution, is defined by the character of the specific action taken
    by the government official or employee and the amount of discretion and
    judgment applied in executing a specific duty. See McDowell v. Smith, 
    285 Ga. 592
    , 593 (678 SE2d 922) (2009); Heller v. City of Atlanta, 
    290 Ga. App. 345
    ,
    347-348 (659 SE2d 617) (2008). See also Murphy v. Bajjani, 
    282 Ga. 197
    , 199
    (647 SE2d 54) (2007). While both terms share the ministerial modifier, whether
    an act performed by a municipal employee is ministerial or discretionary is not
    a consideration in the analysis of whether a municipality’s sovereign immunity
    has been waived. This is because municipal sovereign immunity applies equally
    to, i.e., bars claims arising from, both ministerial and discretionary acts. See
    Sinkfield v. Pike, 
    201 Ga. App. 652
    , 653 (3) (411 SE2d 889) (1991) (“[c]ity is
    immune from any liability for [the employee’s] actions regardless of whether his
    12
    actions were discretionary or ministerial and even if he [is] negligent”);
    Christensen v. Floyd County, 
    158 Ga. App. 274
     (279 SE2d 723) (1981)
    (decision whether to erect or maintain traffic control sign is exercise of a
    governmental function by a municipality, and municipality not liable for even
    negligent performance of this function). See also Seay v. Cleveland, 
    270 Ga. 64
    , 65 (508 SE2d 159) (1998) (county’s sovereign immunity applies equally to
    ministerial and discretionary acts). Accordingly, the definition and evaluation
    of an act performed by an individual for purposes of official immunity is not
    interchangeable with and should not be substituted for the definition used to
    identify the nature of the functions of a municipal government for purposes of
    sovereign immunity. As noted by Judge Branch in her special concurrence in
    this case, it is important for both courts and litigants not to confuse the term
    “ministerial duties” as it pertains to the question of official immunity with the
    term “ministerial functions” as it is used in determining the waiver of sovereign
    immunity under OCGA § 36-33-1 (b). In doing so, the Court of Appeals erred.
    The analysis of the Court of Appeals is further flawed in its application of
    Cantrell v. Thurman, supra, to this case. Cantrell involved the constitutional
    waiver of a county’s sovereign immunity under Article I, Section II, Paragraph
    13
    IX (d) of the Georgia Constitution, a waiver not applicable to municipal
    corporations and one for which it is wholly irrelevant whether the action was
    taken in the performance of a governmental function.8 In relying so heavily
    upon the holding of Cantrell, a holding this Court has never endorsed, the Court
    of Appeals ignored the plain language of OCGA § 36-33-1 (b) and the clear
    distinction between the constitutional waiver of an official’s immunity under
    Article I, Section II, Paragraph IX (d) and the waiver of municipal sovereign
    immunity found in § 36-33-1 (b).9
    3. Because there has been no waiver of the City’s sovereign immunity in
    this case, Mitcham is precluded from pursuing his negligence claims against
    8
    In addressing whether a county sheriff and his deputies were protected by sovereign
    immunity from claims alleging a failure to provide medical attention to an inmate, the
    Cantrell court held that
    [p]roviding adequate medical attention for inmates under [the county
    defendants’] custody and control is a ministerial act . . . and does not involve
    the exercise of discretion to provide medical care, because medical care is a
    fundamental right and is not discretionary in requiring medical care; thus, such
    act is not subject to either sovereign immunity or official immunity.
    Cantrell, supra, 231 Ga. App. at 514.
    9
    We express no opinion in this case regarding the application of Article I sovereign
    or official immunity to the facts of this case or the correctness of the Court of Appeals’
    holding in Cantrell.
    14
    both the City and Turner in his official capacity. See Cameron v. Lang, 
    274 Ga. 122
    , 126-127 (3) (549 SE2d 341) (2001); Campbell v. Goode, 
    304 Ga. App. 47
    ,
    50 (695 SE2d 44) (2010) (claim against city police officer in his official
    capacity is, in reality, a suit against the city and subject to a claim of sovereign
    immunity). Accordingly, the decision of the Court of Appeals affirming the trial
    court’s denial of appellants’ motion to dismiss is reversed.
    Judgment reversed. All the Justices concur.
    Decided February 16, 2015.
    Certiorari to the Court of Appeals of Georgia – 
    325 Ga. App. 481
    .
    Cathy Hampton, Laura S. Burton, for appellants.
    Charles H. McAleer, for appellee.
    Dubberly & McGovern, Joseph D. McGovern, Brown, Readdick,
    Bumgartner, Carter, Strickland & Watkins, Richard K. Strickland, Paul M.
    Scott, amici curiae.
    15