364 Ga. App. 112
Ga. Ct. App.2022Background
- April 2019: Tift County deputies tased and restrained James Aaron McBrayer, then placed him face down and restrained in the back seat of a patrol car and left him unattended.
- Decedent died in the patrol car; autopsy attributed death to excited delirium secondary to being tased.
- Sherrie McBrayer sued Sheriff Gene Scarbrough in his official capacity for wrongful death, alleging negligent use of a motor vehicle and invoking OCGA § 33-24-51 and OCGA § 36-92-2 (claiming the patrol car was a "covered vehicle").
- Scarbrough moved for judgment on the pleadings, asserting sovereign immunity; the trial court granted the motion, finding no waiver because the patrol car was not "used as a vehicle."
- McBrayer appealed; the Court of Appeals affirmed, holding the county did not waive sovereign immunity under the motor-vehicle waiver statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tift County waived sovereign immunity under the statutes for negligent use of a covered motor vehicle | McBrayer: injury arose from deputies' negligent use of the patrol car; statutory waiver applies | Scarbrough: the patrol car was used as a holding cell/restraint, not "as a vehicle," so no waiver | Court: No waiver — vehicle was not "in use" as a vehicle when injury occurred; sovereign immunity applies |
| Whether the existence or scope of automobile insurance alone establishes waiver | McBrayer: the vehicle was insured/could be a "covered vehicle," so coverage should determine waiver | Scarbrough: insurance procurement does not automatically waive immunity; plaintiff must prove coverage and that injury arose from negligent use of the vehicle | Court: Insurance coverage is relevant only if the negligent use of the motor vehicle (as a vehicle) caused the injury; coverage alone does not waive immunity |
Key Cases Cited
- Gish v. Thomas, 302 Ga. App. 854 (deputy’s parked patrol car used as holding cell; suicide did not arise from vehicle "use")
- Tittle v. Corso, 256 Ga. App. 859 (injuries from contact with patrol car not "use" of vehicle for immunity waiver)
- McElmurray v. Augusta-Richmond County, 274 Ga. App. 605 (motor vehicle "use" found where vehicle activity caused harm)
- Saylor v. Troup County, 225 Ga. App. 489 (injury while parked, inoperative vehicle did not arise from "use")
- Cawthon v. Waco Fire & Cas. Ins. Co., 183 Ga. App. 238 (loading/unloading may be "use" depending on facts and active vehicle functions)
- Ankerich v. Savko, 319 Ga. App. 250 (official-capacity suit is suit against county; insurer/waiver analysis requires proof of both coverage and causation)
- Bd. of Commrs. of Putnam County v. Barefoot, 313 Ga. App. 406 (statutory waivers of sovereign immunity strictly construed; injury must "flow from" use as a vehicle)
- Assurance Co. of Am. v. Bell, 108 Ga. App. 766 ("use" means ordinary employment of vehicle; cannot be stretched to all activities)
- Glass v. Gates, 311 Ga. App. 563 (addressed separate statutory definition issues; did not broaden "use" for immunity waivers)