DeLOACH v. Elliott
289 Ga. 319
Ga.2011Background
- Officer Elliott rear-ended DeLoach’s car on Aug 2, 2007; vehicle was city-owned and he was acting within official duties.
- DeLoach filed a negligence action on Jul 30, 2009 against Elliott (individual and official) and the City of Waynesboro.
- Trial court granted summary judgment citing failure to provide ante litem notice within six months under OCGA § 36-33-5(b) and immunity under OCGA § 36-92-3(a).
- DeLoach conceded she cannot prove timely ante litem notice and appealed only the grant of summary judgment against Elliott in his individual capacity.
- Court held OCGA § 36-92-3(a) provides immunity to local government employees for torts involving a covered motor vehicle; 36-92-3(b) contemplates substitution when the government entity is liable; because the City’s liability was foreclosed by failure to give ante litem notice, no suit can proceed against Elliott personally.
- Court affirmed judgment, noting 36-92-3(d) bars further action and that constitutional challenges were moot due to lack of remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of immunity under OCGA § 36-92-3(a) for municipal employees | DeLoach argues immunity applies only if City remained liable | Elliott argues City remains liable via statute, so employee immune | Immunity applies to employee; substitution only when City liable; not possible here |
| Role of OCGA § 36-92-3(b) and substitution | City need not be substituted if not liable | Substitution required whenever employee commits a covered act for which City is liable | Substitution governs when City is liable; here City wasn’t liable due to ante litem failure, so no suit against Elliott |
| Effect of ante litem notice failure | Failure should not bar claim against employee if City liable | Ante litem notice failure forecloses City liability and hence employee claim | Failure to provide ante litem notice forecloses any recovery against City; no action against employee permitted |
| Constitutional challenges moot | Constitutional issues moot where no recovery available | ||
| Damages cap under OCGA § 36-92-2 | moot due to no recovery available |
Key Cases Cited
- Harry v. Glynn County, 269 Ga. 503 (1998) (immunity analogous to state employee immunity in 50-21-25)
- Riddle v. Ashe, 269 Ga. 65 (1998) (state employee immunity interpretation guidance)
- Tootle v. Cartee, 280 Ga.App. 428 (2006) (application of immunity to municipal employees)
- Howard v. Miller, 222 Ga.App. 868 (1996) (immunity analysis for municipal employees)
- Wang v. Moore, 247 Ga.App. 666 (2001) (procedural foreclosed claims when ante litem notice fails)