Cowart v. Georgia Department of Human Services , 340 Ga. App. 183 ( 2017 )

SECOND DIVISION
BARNES, P. J.,
RICKMAN and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 8, 2017
In the Court of Appeals of Georgia
A16A1515. COWART v. GEORGIA DEPARTMENT OF HUMAN
SERVICES.
RICKMAN, Judge.
Barbara Cowart, as Administratrix of the Estate of J. C., appeals the trial
court’s order dismissing her claims against the Georgia Department of Human
Services (DHS) in connection with the tragic death of one-year-old J. C.1 She
contends that the trial court erred by ruling that her claims were barred by sovereign
immunity. For reasons that follow, we affirm in part and reverse in part.
“We review de novo a trial court’s grant of a motion to dismiss on sovereign
immunity grounds, bearing in mind that the party seeking to benefit from the waiver
of sovereign immunity has the burden of proof to establish waiver.” (Citation and
punctuation omitted.) Pelham v. Bd. of Regents of Univ. System of Ga., 321 Ga. App.
1Cowart does not appeal the trial court’s dismissal of her claims against the
Georgia Division of Family and Children Services and the Bartow County
Department of Family and Children Services.
791 (743 SE2d 469) (2013). “Because a motion to dismiss on sovereign immunity
grounds is based upon the trial court’s lack of subject matter jurisdiction, the trial
court is entitled to make factual findings necessary to resolve the jurisdictional issue.”
(Citations omitted.) Id. at 791, n.1. Here, the trial court did not make any factual
findings, and we therefore view the factual allegations in the complaint as true to
determine whether the complaint shows with certainty that Cowart would not be
entitled to relief under any state of facts that could be proven in support of her claim.
See James v. Ga. Dept. of Pub. Safety, 337 Ga. App. 864, 865 (1) (789 SE2d 236)
(2016); McCoy v. Ga. Dept. of Admin. Svcs., 326 Ga. App. 853, n.1 (755 SE2d 362)
(2014).
In her initial complaint, Cowart alleged that in August 2013, J. C.’s uncle
contacted a case manager with the Bartow County Department of Family and
Children Services (DFCS) and informed her that J. C.’s mother was using
methamphetamine and that J. C. was in imminent danger of harm. J. C.’s uncle also
informed the case manager where J. C.’s mother could be found. Cowart alleged that
the case manager took no action to address the report that J. C. was in danger, in
violation of DFCS’s established policies and protocols, and asserted claims against
DHS for negligence, wrongful death, and violation of the Georgia Open Records Act.
2
In her initial complaint, Cowart also alleged that J. C.’s mother and her boyfriend,
“while under the influence of [] methamphetamine and other illegal drugs committed
unspeakable and horrible acts of torture, barbarism, cruelty, violence, molestation,
and savagery upon infant [J. C.],” and that “[a]fter four months of enduring the
constant torture and as a direct result thereof, [J. C.] died.”
DHS moved to dismiss the complaint for lack of subject matter jurisdiction
based on the assault and battery exception to the State’s waiver of sovereign
immunity. In response, Cowart amended her complaint, deleting the allegations that
J. C.’s mother and her boyfriend committed “acts of torture, barbarism, cruelty,
violence, molestation, and savagery” upon J. C., resulting in her death, and replacing
them with allegations that J. C.’s mother and her boyfriend were negligent in failing
to provide care and support and timely medical treatment and that “[a]fter four
months of enduring constant harm and neglect caused by the . . . negligent acts and
omissions of [J. C.’s mother and her boyfriend], [J. C.] died.”
The trial court dismissed Cowart’s claims for damages resulting from a battery
on J. C. under the assault and battery exception to the State’s waiver of sovereign
immunity, and dismissed Cowart’s claims for damages caused by negligence and
3
neglect under the discretionary function exception.2 Cowart only appeals the trial
court’s ruling on her claims for damages caused by negligence.
Under the Georgia Constitution, sovereign immunity extends to the state and
all of its departments and agencies. Ga. Const. of 1983, Art. I, Sec. II, Par. IX. The
General Assembly may waive the state’s sovereign immunity from suit by enacting
a State Tort Claims Act. Id. The Georgia Tort Claims Act provides that, subject to
certain exceptions and limitations, “[t]he state waives its sovereign immunity for the
torts of state officers and employees while acting within the scope of their official
duties or employment and shall be liable for such torts in the same manner as a
private individual or entity would be liable under like circumstances.” OCGA §
50-21-23 (a). One of the exceptions to the State’s waiver of sovereign immunity
provides that the State shall have no liability for losses resulting from assault and
battery. OCGA § 50-21-24 (7). Under that exception, “if a plaintiff’s injury was
caused by an assault and battery committed by a third party, the state is immune from
suit even if the assault and battery was facilitated by or resulted from the prior
negligent performance of a state officer or employee.” (Citation omitted.) Pelham,
2
The trial court also ruled that any procedural due process claim must fail , but
Cowart never asserted such a claim.
4
321 Ga. App. at 796 (2). Cowart does not appeal the trial court’s ruling on the basis
of immunity for losses resulting from assault and battery. We therefore affirm the trial
court’s ruling that OCGA § 50-21-24 (7) bars Cowart from recovering for losses
resulting from assault and battery.3
Cowart contends that the trial court erred by concluding that her claims are
barred by the discretionary function exception to the State’s waiver of sovereign
immunity, which provides that the State shall have no liability for losses resulting
from “[t]he exercise or performance of or the failure to exercise or perform a
discretionary function or duty on the part of a state officer or employee, whether or
not the discretion involved is abused.” OCGA § 50-21-24 (2). A discretionary
function or duty is defined as “a function or duty requiring a state officer or employee
to exercise his or her policy judgment in choosing among alternate courses of action
based upon a consideration of social, political, or economic factors.” OCGA §
3
The parties dispute the effect of the allegations of the original complaint. We
note that an amendment to the pleadings prevents the original admissions from
serving as solemn admissions in judicio, but those admissions may still be used as
evidence that the admitting party can explain and try to refute. Georgia-Pacific, LLC
v. Fields, 293 Ga. 499, 502 (1) (748 SE2d 407) (2013). In addition, “an admission in
judicio applies only to the admission of fact and does not apply where the admission
is merely the opinion or conclusion of the pleader as to law or fact.” (Footnote and
punctuation omitted.) Citrus Tower Boulevard Imaging Ctr., LLC v. Owens, 325 Ga.
App. 1, 4 (1) (752 SE2d 74) (2013).
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50-21-22 (2). “[F]or the ‘discretionary function’ exception to apply, it must be shown
that a state officer or employee was afforded discretion with respect to the conduct
that is alleged to amount to a tort, [and] that an exercise of the discretion afforded
amounts to a policy judgment . . . based upon a consideration of social, political, or
economic factors.” (Citations and punctuation omitted.) Ga. Dept. of Human Svcs. v.
Spruill, 294 Ga. 100, 106 (2) (751 SE2d 315) (2013).
We must first consider the extent to which DFCS policy afforded discretion to
the case manager. Here, although the complaint alleges that DFCS policies and
protocols required the case manager to conduct an investigation into the report that
J. C. was in danger, the existing record lacks evidence that would allow us to
determine if the case manager had the discretion to perform absolutely no
investigation, as alleged in the complaint. Without such evidence, we cannot
determine whether the discretionary function exception applies here. Accordingly, we
conclude that the trial court erred in granting DHS’s motion to dismiss under OCGA
§ 50-21-24 (2) on the existing record. See Grant v. Ga. Forestry Comm., 338 Ga.
App. 146, 156 (4) (789 SE2d 343) (2016).
Judgment affirmed in part and reversed in part. Barnes, P. J., and Self, J.,
concur.
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