Opinion
A20A0602
04-15-2020
GWINNETT COUNTY v. ASHBY.
Tuwanda R. Williams, Tracy L. Lettsome, for appellant. Law Offices of W. Bryant Green III, P.C., Semra A. Kebede, for appellee.
Tuwanda R. Williams, Tracy L. Lettsome, for appellant.
Law Offices of W. Bryant Green III, P.C., Semra A. Kebede, for appellee.
Dillard, Presiding Judge. We granted Gwinnett County's application for an interlocutory appeal to determine whether the trial court erred in denying its motion to dismiss Twynette Ashby's action to recover for personal injuries on the ground that her suit was barred by sovereign immunity. Because we agree with the County, we reverse.
Ashby filed suit against the County, its Board of Commissioners, the Lawrenceville Youth Athletic Association, John Does 1-3, and XYZ Corporations 1-3 on April 23, 2019. Ashby alleged that on July 26, 2017, she attended her son's football practice at a baseball field in Rhodes Jordan Park in Lawrenceville, which is located in Gwinnett County. Ashby was walking near the bleachers when her foot slipped into an uncovered drain, which caused her to fall and sustain "severe personal injuries." She claimed that the fall resulted from the defendants negligently maintaining or repairing the drain and failing to warn of the dangerous condition. As a result, she asserted that the County was vicariously liable for the negligent acts of its agents or employees (i.e. , John Does 1-3 and XYZ Corporations 1-3).
The County answered and contended, inter alia , that Ashby's claims were barred by sovereign immunity, and subsequently moved to dismiss her suit on this ground. In response, Ashby argued that OCGA § 50-21-23 waived the County's immunity from suit and, additionally, that such immunity was waived under the Recreational Property Act. More specifically, Ashby alleged—in response to the motion to dismiss—that the County charged her a fee for using the park for recreational purposes because she paid for her son to participate on the football team and use the park for practice. Without any explanation, the trial court denied the County's motion to dismiss on the ground of sovereign immunity. But the court did issue a certificate of immediate review, and we granted the County's application for interlocutory appeal. This appeal follows. We review a trial court's ruling on a motion to dismiss based on sovereign immunity de novo because it is a matter of law. Of course, the trial court's factual findings will be sustained if there is evidence to support them, and the party seeking the waiver of immunity has the burden of proof. With these guiding principles in mind, we turn to the County's claim of error.
See OCGA § 51-3-20 ("The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.").
Ashby did not allege in her complaint that she was charged any such fee.
The trial court granted the motion to dismiss filed by the Board of Commissioners on the ground that it was not a proper party defendant. Ashby conceded that this decision was correct. As a result, the Board is not a named party to this appeal, and we are not faced with any question as to its dismissal.
See, e.g. , Ga. Dep't of Nat'l Res. v. Ctr. for a Sustainable Coast, Inc. , 294 Ga. 593, 596 (2), 755 S.E.2d 184 (2014) ("Turning to the issue of sovereign immunity, our review of this question of law is de novo."); Fulton Cty. Sch. Dist. v. Jenkins , 347 Ga. App. 448, 449, 820 S.E.2d 75 (2018) ("This Court reviews de novo a trial court's ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law." (punctuation omitted)); Williams v. Wilcox State Prison , 341 Ga. App. 290, 291, 799 S.E.2d 811 (2017) ("We begin by noting that this Court reviews de novo a trial court's ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law." (punctuation omitted)); see also Handberry v. Stuckey Timberland, Inc. , 345 Ga. App. 191, 191, 812 S.E.2d 547 (2018) ("On appeal of a trial court's ruling on a motion to dismiss, our review is de novo.").
See, e.g. , Ga. Dep't. of Labor v. RTT Assoc., Inc. , 299 Ga. 78, 81 (1), 786 S.E.2d 840 (2016) ("The burden of demonstrating a waiver of sovereign immunity rests upon the party asserting it."); Bd. of Regents of the Univ. Sys. of Ga. v. Daniels , 264 Ga. 328, 329, 446 S.E.2d 735 (1994) (explaining that the party seeking to benefit from the waiver of sovereign immunity has the burden of proving waiver); Jenkins , 347 Ga. App. at 449, 820 S.E.2d 75 ("The trial court's factual findings will, of course, be sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity." (punctuation omitted)); Williams , 341 Ga. App. at 290, 799 S.E.2d 811 (same).
Sovereign immunity protects all levels of governments from "legal action unless they have waived their immunity from suit." Any suit against the State that is barred by sovereign immunity is subject to dismissal under OCGA § 9-11-12 (b) (1) for lack of subject-matter jurisdiction. And like the State, counties too enjoy sovereign immunity.
Cameron v. Lang , 274 Ga. 122, 126 (3), 549 S.E.2d 341 (2001) ; accord Drumm v. George , 345 Ga. App. 760, 762, 814 S.E.2d 575 (2018) ; Watts v. City of Dillard , 294 Ga. App. 861, 862 (1), 670 S.E.2d 442 (2008) ; see Ctr. for a Sustainable Coast, Inc. , 294 Ga. at 599 (2), 755 S.E.2d 184 ("[T]he plain language of [Ga. Const. Art. I, Sec. II, Par. IX (e) ] explicitly bars suits against the State or its officers and employees sued in their official capacities, until and unless sovereign immunity has been waived by the General Assembly." (footnote omitted)).
See Conway v. Jones , 353 Ga. App. 110, 111 (1), 836 S.E.2d 538 (2019) ("Any suit against the State barred by sovereign immunity is subject to dismissal [under] OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction." (punctuation omitted)); Bd. of Trustees of Ga. Military College v. O'Donnell , 352 Ga. App. 651, 653-54 (1), 835 S.E.2d 688 (2019) (same); Dep't of Pub. Safety v. Johnson , 343 Ga. App. 22, 23, 806 S.E.2d 195 (2017) (same); see also Bd. of Regents of the Univ. Sys. of Ga. v. Myers , 295 Ga. 843, 845, 764 S.E.2d 543 (2014) ("If the ante litem notice requirements are not met, then the State does not waive sovereign immunity, and therefore, the trial court lacks subject matter jurisdiction.").
See Layer v. Barrow Cty. , 297 Ga. 871, 871 (1), 778 S.E.2d 156 (2015) ("As a general rule, counties enjoy sovereign immunity."); accord Conway , 353 Ga. App. at 111 (1), 836 S.E.2d 538.
Sovereign immunity is only waived by an act of the General Assembly specifically providing for waiver and delineating the extent of that waiver. Likewise, OCGA § 36-1-4 provides that "[a] county is not liable to suit for any cause of action unless made so by statute." Accordingly, a county's immunity is "complete unless waived by statute, and includes protection from suits involving claims of negligence."
See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e) ("The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver."); accord Dep't of Human Servs. v. Duncan , 351 Ga. App. 332, 334, 831 S.E.2d 4 (2019).
See also Davis v. Effingham Cnty. Bd. of Comm. , 328 Ga. App. 579, 582 (1) (a), 760 S.E.2d 9 (2014) ("A negligence claim against the state or its subdivisions, including counties, is barred unless waived by statute.").
Rutherford v. DeKalb Cty. of Commrs , 287 Ga. App. 366, 367-68 (1), 651 S.E.2d 771 (2007) ; see Gilbert v. Richardson , 264 Ga. 744, 754 (7), 452 S.E.2d 476 (1994) ("A county may be liable for a county employee's negligence in performing an official function to the extent the county has waived sovereign immunity."); Russell v. Barrett , 296 Ga. App. 114, 120 (2), 673 S.E.2d 623 (2009) (same).
To that end, Ashby's assertion that the County's immunity was waived by OCGA § 50-21-23 is unavailing. That Code section provides, in relevant part:
The 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; provided, however, that the state's sovereign immunity is waived subject to all exceptions and limitations set forth in this article. The state shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment.
But OCGA § 50-21-22 (5) specifically excludes counties from the definition of "state" for purposes of the Georgia Tort Claims Act. So, even though Ashby suggests that her suit against the John Doe and XYZ Corporation defendants as county employees is not barred by sovereign immunity, it is well established that "county officers sued in their official capacities—since a suit against a county officer in her official capacity is a suit against the county itself—enjoy the same sovereign immunity." Likewise, Ashby's assertion that the County waived sovereign immunity to the extent of its liability coverage is without merit because there is no assertion that a County motor vehicle was involved.
See OCGA § 50-21-22 (5) (" ‘State’ means the State of Georgia and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions, but does not include counties , municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities." (emphasis supplied)).
Layer , 297 Ga. at 871 (1), 778 S.E.2d 156 ; accord Conway , 353 Ga. App. at 111 (1), 836 S.E.2d 538 ; see Gilbert , 264 Ga. at 754 (7), 452 S.E.2d 476 (holding that county official sued in official capacity was entitled to the benefit of the County's sovereign immunity).
See, e.g. , Gilbert , 264 Ga. at 748-49 (4), 452 S.E.2d 476 (explaining that "a county waives its governmental immunity to the extent of the amount of liability insurance purchased for the negligence of its officers, agents, servants, attorneys, or employees arising from the use of a motor vehicle" (emphasis supplied)); Nichols v. Prather , 286 Ga. App. 889, 893-94 (2), 650 S.E.2d 380 (2007) (holding that county employees sued in their official capacity were entitled to sovereign immunity, but sovereign immunity was waived by the purchase of automobile liability insurance ).
Finally, we also disagree with Ashby's contention that the County waived sovereign immunity under the Recreational Property Act when it charged a fee for her son's participation in football. The codified purpose of the Recreational Property Act is "to encourage both public and private landowners to make their property available to the public for recreational purposes by limiting the owners’ liability." And to this end, it provides, inter alia , that
S. Gwinnett Athletic Ass'n, Inc. v. Nash , 220 Ga. App. 116, 117 (1), 469 S.E.2d 276 (1996) ; see OCGA § 51-3-20 ("The [codified] purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.").
[e]xcept as specifically recognized by or provided in Code Section 51-3-25, an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby ... [a]ssume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.
OCGA § 51-3-23 (3) (emphasis supplied).
But as we have previously explained, the Recreational Property Act does not create a statutory waiver of a county's sovereign immunity.
See Norton v. Cobb Cty. , 284 Ga. App. 303, 305-06 (1), 643 S.E.2d 803 (2007) (physical precedent only in Div. 2-3) (concluding that trial court incorrectly found an implied waiver of sovereign immunity in the Recreational Property Act); see also DeKalb State Ct. Probation Dep't v. Currid , 287 Ga. App. 649, 653 (1), 653 S.E.2d 90 (2007) ("In Norton , we considered ... the Recreational Property Act, and ... found no statutory waiver of sovereign immunity in an act that allowed personal injury actions resulting from wilful or malicious behavior." (citation omitted)). Moreover, and as an aside, the "charge" that Ashby alleges she paid is not the type that would permit her to recover under the Act anyway. See OCGA § 51-3-21 (1) (" ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land."); Nash , 220 Ga. App. at 117-18 (1), 469 S.E.2d 276 ("In the current case, the Association charges a little league registration fee, although this fee is waived as to any child in need of free service. The fee covers expenses such as uniforms for the children, umpires, lights, water and sanitation. Because the fee is needed to defray the costs of operating the league, and is not an admission price required for permission to enter onto the land, it is not a charge to the public as contemplated by the Act.").
Accordingly, because Ashby did not establish that the County waived its sovereign immunity, the trial court erred in denying the County's motion to dismiss on this ground, and we reverse its ruling.
Judgment reversed.
Rickman and Brown, JJ., concur.