Marshall v. McIntosh County
327 Ga. App. 416
Ga. Ct. App.2014Background
- John K. Marshall called 911 from Blackbeard Island reporting a heart attack; the 911 director, Sheila K. Deverger, allegedly refused to send aid and directed EMTs not to respond.
- Marshall died later that day; his wife Sandra S. Marshall (administratrix) sued McIntosh County and Deverger in both official and individual capacities for wrongful death under the Georgia 9-1-1 Service Act and related theories.
- Defendants moved to dismiss under OCGA § 9-11-12(b)(6); trial court dismissed all claims, finding sovereign immunity barred the county and Deverger in her official capacity, and official immunity barred Deverger in her individual capacity.
- On appeal, the Court of Appeals reviewed the dismissal de novo and construed the complaint in the plaintiff’s favor with no discovery having occurred.
- The Court affirmed dismissal of claims against McIntosh County and Deverger in her official capacity (sovereign immunity), but reversed dismissal of the individual-capacity claim against Deverger, concluding dismissal on official or statutory immunity was premature at the motion-to-dismiss stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 46-5-131(a) waives a county's sovereign immunity so county may be liable for 9‑1‑1 failures | § 46‑5‑131 waives immunity because county implemented/operated 9‑1‑1 and statute creates liability except limited exemptions | § 46‑5‑131 does not constitute an express waiver of sovereign immunity; counties retain constitutional immunity | Held: No waiver — sovereign immunity bars claim against McIntosh County; dismissal affirmed |
| Whether a suit against Deverger in her official capacity is barred by sovereign immunity | Official-capacity suit is permissible because statute subjects local 9‑1‑1 systems to liability | Official-capacity suit is effectively suit against county and thus barred by sovereign immunity | Held: Official-capacity claim barred by sovereign immunity; dismissal affirmed |
| Whether Deverger in her individual capacity is protected by official (qualified) immunity requiring actual malice | Marshall sufficiently alleged wrongful refusal to send aid that could be ministerial or show malice; complaint gives fair notice | Deverger’s decision to dispatch is discretionary; official immunity requires actual malice and complaint lacks it | Held: Reversed dismissal — at motion-to-dismiss stage duty classification is fact-specific; complaint survives pleading and discovery may establish ministerial duty or wanton/willful conduct |
| Whether OCGA § 46-5-131(a) statutory immunity independently bars individual-capacity claim (requires wanton/willful misconduct or bad faith to overcome) | Complaint alleged wanton and willful misconduct and bad faith; sufficient under notice-pleading to survive dismissal | Statutory immunity shields officials absent proof of wanton/willful misconduct or bad faith | Held: Statutory immunity challenge fails at this stage; complaint plausibly alleges wanton/willful misconduct and bad faith, so dismissal was premature |
Key Cases Cited
- South Point Retail Partners v. North American Props. Atlanta, 304 Ga. App. 419 (appellate review of motion to dismiss standard)
- TechBios v. Champagne, 301 Ga. App. 592 (construing complaint in favor of plaintiff on dismissal)
- Hendon v. DeKalb County, 203 Ga. App. 750 (persuasive reasoning that § 46‑5‑131 does not waive county sovereign immunity)
- Currid v. DeKalb State Court Probation Dept., 285 Ga. 184 (Supreme Court approving reasoning that similar statute did not waive sovereign immunity)
- Austin v. Clark, 294 Ga. 773 (official vs. ministerial duty is fact-specific; dismissal improper where pleadings could allege ministerial "laundry list")
- Roper v. Greenway, 294 Ga. 112 (official immunity doctrine — discretionary vs. ministerial acts)
- Glass v. Gates, 311 Ga. App. 563 (established policy can create ministerial duty)
- Murphy v. Bajjani, 282 Ga. 197 (definition of actual malice for overcoming constitutional official immunity)