Two Recent Georgia Supreme Court Decisions on Immunity

June 19, 2014

Earlier this week, the Georgia Supreme Court issued two important decisions on the extent to which individuals or entities are immune from lawsuit or from specific claims within a lawsuit. Both decisions were unanimous, and the opinions were authored by Justice David Nahmias.

In Hartley v. Agnes Scott College, No. S13G1152, 2014 WL 2695526 (Ga. June 16, 2014), the Georgia Supreme Court was asked to rule on whether a campus police officer employed by a private college qualified as a “state officer or employee” within the meaning of O.C.G.A. § 50-21-22(7) of the Georgia Tort Claims Act (“GTCA”). That provision defines “state officer or employee” to include “law enforcement officers” and “persons acting on behalf of or in service of the state in any official capacity,” and the Georgia Court of Appeals, in a plurality opinion, had previously concluded that the campus police officers employed by Agnes Scott college fell within that definition. Agnes Scott College v. Hartley, 321 Ga. App. 74 (2013). The Georgia Supreme Court disagreed, holding that although campus polices officers may in some contexts be considered law enforcement officers or persons performing services for the state, they are entitled to immunity only if they are acting for an identified “state government entity” when they commit an alleged tort. Because the Agnes Scott police officers were not acting for any state government entity when they committed the alleged torts at issue in the litigation, the Court held they were not entitled to immunity under the GTCA. The Hartley decision can be read here.

The second decision handed down on Monday was Georgia Department of Corrections v. Couch, No. S13G1555, 2014 WL 2700961 (Ga. June 16, 2014). Mr. Couch brought a tort lawsuit against the Georgia Department of Corrections (“GDC”) and made an offer of settlement under O.C.G.A. § 9-11-68. GDC rejected the offer, and Mr. Couch subsequently recovered a final judgment in trial of more than 125% of the amount he had offered to accept as settlement of his claims. Under O.C.G.A. § 9-11-68(b)(2), Mr. Couch was therefore “entitled to recover reasonable attorney’s fees and expenses of litigation incurred . . . from the date of the rejection of the offer of settlement through the entry of judgment.” GDC did not dispute that it was liable for the amount of the judgment at trial, but it asked the court to rule that sovereign immunity protected it from any award of fees and expenses. The Georgia Supreme Court rejected that immunity. In so doing, the court focused on the language of the Georgia Tort Claims Act, which states that the state and its officers shall be liable for torts in the same manner as a private individual, “provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.” O.C.G.A. § 50-21-23 (a). The court reasoned that because the sovereign immunity waiver is subject to the Georgia Civil Practice Act, if the General Assembly had intended to exempt the state from liability under O.C.G.A. § 9-11-68 of the CPA, it would have done so expressly. In the absence of an express provision to that effect, the court found no immunity for an award under 9-11-68. You can read the full opinion in Couch here.

By confirming that employees of private entities are not entitled to immunity under the GTCA and that government entities can be liable for attorneys’ fees in the same manner as private litigants, these two decisions remove some of the hurdles that individuals face when pursuing litigation. If you need legal advice, contact Parks, Chesin and Walbert today by calling 404-873-8048 or filling out this form.