COOSA VALLEY TECHNICAL COLLEGE v. West , 299 Ga. App. 171 ( 2009 )

BARNES, Judge,

dissenting.

Because I am satisfied the Wests have established that the acts of the instructors at Coosa Valley were sufficient to invoke the waiver of sovereign immunity in the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., I must respectfully dissent. I agree with the majority that the trial court employed the wrong test when deciding the State Defendants’ motion. I cannot agree, however, that employing the correct test must lead to reversing the trial court.

1. The State Defendants moved to dismiss the complaint because the trial court lacked subject matter jurisdiction.

Under OCGA § 9-11-12 (b) (1), a defendant can raise a plea in abatement, which is not an adjudication on the merits, that raises the issue of the lack of subject matter jurisdiction in the trial court, but the grant of such motion only causes a dismissal of such action from the court without subject matter jurisdiction or until the condition precedent for subject matter jurisdiction has been satisfied, and the action can then be refiled. Sovereign immunity of a state agency is not an affirmative defense, going to the merits of the case, but raises the issue of the trial court’s subject matter jurisdiction to try the case, and waiver of sovereign immunity “must be established by the party seeking to benefit from that .waiver”; thus, the plaintiffs had the burden of establishing waiver of sovereign immunity.

(Citations omitted.) Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671, 676 (570 SE2d 1) (2002),

We review de novo a trial court’s denial of a motion to dismiss based on sovereign immunity grounds, which is a matter of law. However, factual findings by the trial court in support of its legal decision are sustained if there is evidence authorizing them, and the burden of proof is on the party seeking the waiver of immunity.

(Citations and footnote omitted.) Ga. Pines Community Svc. Bd. v. Summerlin, 296 Ga. App. 32, 34 (673 SE2d 582) (2009).

As I find sufficient evidence authorizing a waiver of sovereign immunity, even using the correct test, I would affirm the trial court.

2. The GTCA, OCGA § 50-21-23 (a), waives the sovereign immunity of the State for torts committed by State officers or employees while acting within the scope of their official duties or employment, and provides that the State “shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances,” subject to the exceptions and limitations set forth in the Act.

A “[sjtate officer or employee” is defined in OCGA § 50-21-22 (7) as

an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state. The term state officer or employee also includes any natural person who is a member of a board, commission, committee, task force, or similar body established to perform specific tasks or advisory functions, with or without compensation, for the state or a state government entity, and any natural person who is a volunteer participating as a volunteer, with or without compensation, in a structured volunteer program organized, controlled, and directed by a state government entity for the purposes of carrying out the functions of the state entity. This shall include any health care provider and any volunteer when providing services pursuant to Article 8 of Chapter 8 of Title 31. An employee shall also include foster parents and foster children. Except as otherwise provided for in this paragraph, the term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity.

The parties do not dispute that, while acting within the scope of their employment, over the last seven to ten years the employees of Coosa Valley selected Elliott to conduct her classes and sell her product twice a year as part of the regular curriculum of the cosmetology program in which Ms. West was enrolled. The Wests’ complaint alleged that Elliott and Coosa Valley were joint tortfea-sors, and that Coosa Valley acted as “Elliott’s agent in proving a location for the sale of her ‘primer’ product and in providing her customers for the sale of said product,” and that Elliott and the Coosa Valley teachers negligently failed to provide any warnings to Ms. West about the hazardous nature of the chemical product.

Our law does not require that the Coosa Valley employees’ negligence be independent of Elliott’s negligence. Dept. of Transp. v. Brown, 218 Ga. App. 178, 183-184 (6) (460 SE2d 812) (1995) (“Because a jury could find an individual liable as a joint tortfeasor, the state can be liable in the same manner.”)- Therefore, contrary to the State Defendants’ argument, the State employees’ negligence is not required to be independent of Elliott’s for the State employee’s negligence to result in a waiver of sovereign immunity.⁵

I also cannot agree that the State employees had no duty to warn the students under their supervision of the nature of the materials with which they would be working. The bottle described simply as nail primer, with no list of ingredients, was methacrylic acid, a material sufficiently corrosive to cause “destruction of tissue by chemical action.” It is not disputed that the teachers in charge of the course were employees of Coosa Valley, a State agency; they elected to make Elliott’s presentation part of the official course of study that Ms. West was enrolled in at Coosa Valley; they bought the materials from Elliott with a State credit card and then sold these materials to West; and all of this occurred on State property.⁶ In these circumstances, the instructors had a duty to know the nature of the materials that they sold to the students and which the students would be working with in the course, and to warn the students of any hazardous materials. This duty⁷ is independent of any duty to inspect the product which would fall under the inspection exception to the GTCA. See OCGA § 50-21-24 (8). Therefore, I would find that the actions of the teachers, as State employees, were sufficient to invoke the waiver of sovereign immunity in the GTCA.

Our recent decision in Georgia Pines Community Svc. Bd. v. Summerlin, supra, 296 Ga. App. at 37-38, does not require a different result. The Wests rely upon the negligence of State employees to establish the waiver of sovereign immunity and not the negligence of Elliott or any other non-State actor. Therefore, I cannot agree that the Wests failed to establish that their claims are within the scope of the GTCA’s waiver of sovereign immunity. Accordingly, I must respectfully dissent.

Decided July 15, 2009 Thurbert E. Baker, Attorney General, Elizabeth A. Monyak, Assistant Attorney General, for appellants. H. L. Cromartie III, Jennifer D. LeDoux, for appellees.

I am authorized to state that Judge Ellington joins in this dissent.

5 Because the parties have agreed that Elliott is not a State actor, we need not address whether she was a “volunteer” as that terra is used in OCGA § 50-21-22 (7): “a volunteer participating as a volunteer, with or without compensation, in a structured volunteer program organized, controlled, and directed by a state government entity for the purposes of carrying out the functions of the state entity,” and thus, whether she would fall within the exception for sole proprietorships in the last sentence of the Code section, “[e]xcept as otherwise provided for in this paragraph, the term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity.”

6 The instructors’ duty to warn is illustrated by the evidence establishing that they sold the primer. Being intermediaries facilitating the sale who gained no profit does not relieve them of the duty to ensure that the students fully understood that the chemical they were purchasing was a potent acid that had to be handled with care.

7 Although it is also obvious that the teachers may have failed in their duty to supervise Elliott’s instruction, I agree with the majority that such an allegation is not included in the complaint.