Wyno v. Lowndes County
305 Ga. 523
| Ga. | 2019Background
- In 2011 Misty Wyno was killed by a neighbor’s dog after multiple prior complaints about dogs at the same address had been made to Lowndes County Animal Control.
- Jason Wyno sued the dog owners, Lowndes County, and four county animal-control employees (in official and individual capacities) alleging negligence, nuisance, negligent per se, failure to provide police protection, and seeking punitive damages.
- Lowndes County invoked sovereign immunity for official-capacity claims; the trial court dismissed those claims. The county and employees also invoked former OCGA § 4-8-30 (Dangerous Dog Control Law) to bar individual-capacity suits.
- After the Court of Appeals remanded for resolution of a constitutional challenge to former OCGA § 4-8-30, the trial court denied summary judgment based on its view that the officers’ duties were ministerial, then later dismissed again finding § 4-8-30 constitutional.
- The Georgia Supreme Court reviewed whether the animal-control duties at issue were ministerial or discretionary under Article I, § II, Paragraph IX (d) (official immunity), and whether there was evidence of actual malice or intent to injure.
- The Court held the officers’ duties were discretionary and, because the record lacked evidence of actual malice or intent to injure, the officers were protected by official immunity; it affirmed summary judgment for the defendants (but on different grounds than the trial court).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether former OCGA § 4-8-30 impermissibly extends Paragraph IX(d) immunity (constitutional challenge) | Wyno: § 4-8-30 is not a State Tort Claims Act and cannot expand official immunity under Paragraph IX(d) | County/appellees: § 4-8-30 bars suits against local governments/employees for dangerous-dog enforcement | Court did not reach this constitutional question; resolved case on official-immunity/discretionary-act grounds |
| Whether animal-control duties were ministerial or discretionary | Wyno: Ordinance language and office practice created ministerial duties, so officers can be liable for negligent performance | Defendants: Ordinance requires judgments/investigations; officers had discretion in response and enforcement | Held: Duties were discretionary because investigating/classifying complaints requires judgment and choice of enforcement options |
| Whether discretionary acts can give rise to liability absent malice or intent to injure | Wyno: Officers’ repeated nonaction/door-hanger practice amounted to actionable negligence | Defendants: Discretionary acts are immune unless done with actual malice or intent to harm | Held: Discretionary acts are immune under Paragraph IX(d) unless plaintiff shows actual malice or intent to injure; Wyno produced no such evidence |
| Whether summary judgment for county employees was appropriate | Wyno: Genuine issues of fact (practice, follow-up, reporting) precluded summary judgment | Defendants: No evidence of malice; record shows discretion in handling complaints warranting immunity | Held: Summary judgment affirmed for employees on official-immunity grounds (no evidence of malice or intent) |
Key Cases Cited
- Gilbert v. Richardson, 264 Ga. 744 (1994) (discusses development of official immunity doctrine)
- Lathrop v. Deal, 301 Ga. 408 (2017) (official immunity aligned with pre-1991 case law)
- Johnson v. RLI Ins. Co., 288 Ga. 309 (2010) (treatment of motions considering matters outside pleadings)
- Keenan v. Plouffe, 267 Ga. 791 (1997) (whether employee is entitled to immunity is a question of law)
- Austin v. Clark, 294 Ga. 773 (2014) (contrast of ministerial vs discretionary acts)
- City of Atlanta v. Mitcham, 296 Ga. 576 (2015) (ministerial-duty definition depends on amount of discretion)
- Roper v. Greenway, 294 Ga. 112 (2013) (written policy requires clear directive to make a duty ministerial)
- Grammens v. Dollar, 287 Ga. 618 (2010) (written policy that requires discretion does not make duty ministerial)
- Merrow v. Hawkins, 266 Ga. 390 (1996) (actual malice requires deliberate intent to do wrong)
- Murphy v. Bajjani, 282 Ga. 197 (2007) (actual malice excludes implied malice/recklessness)
- Adams v. Hazelwood, 271 Ga. 414 (1999) (ill will alone is insufficient without intent to do wrongful act)
- Kidd v. Coates, 271 Ga. 33 (1999) (definition of actual intent to cause injury in tort context)
- Nelson v. Spalding County, 249 Ga. 334 (1982) (treatment of county immunity under prior constitutional amendments)
- Ridley v. Johns, 274 Ga. 241 (2001) (Paragraph IX(d) applies to county employees)
- Campbell v. Goode, 304 Ga. App. 47 (2010) (investigative decisions by officers are discretionary)