BRAY et al. v. WATKINS
S23C0836, S23G0836
In the Supreme Court of Georgia
Decided: November 7, 2023
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text
PER CURIAM.
Latoya Bray filed an action against sheriff‘s lieutenant Stormie Watkins, in her official and individual capacities, for damages allegedly caused by her failure to activate a tornado warning system while working in a county emergency center. The trial court granted summary judgment to Watkins, concluding in part that the public duty doctrine negated any duty owed to Bray. In a split decision, the Court of Appeals affirmed. See Bray v. Watkins, 367 Ga. App. 381 (885 SE2d 802) (2023). The majority opinion, the specially concurring opinion, and the dissenting opinion disagreed about whether the trial court erred by not considering whether sovereign immunity barred the official-capacity claim and whether the official-capacity claim needed to be remanded for the trial court to resolve the sovereign immunity issue in the first instance. In her petition for certiorari in this Court, Bray contends (1) the Court of Appeals erred by concluding that the public duty doctrine foreclosed her lawsuit and (2) the court‘s discussion concerning sovereign immunity was “misplaced.” For the reasons explained below, we grant Bray‘s writ of certiorari, vacate the Court of Appeals‘s opinion, and remand the case to the Court of Appeals.1
In the City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993), we adopted the public duty doctrine, recognizing that “where failure to provide police protection is alleged, there can be no liability based on a municipality‘s duty to protect the general public,” and stated that “[t]he threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care.” Id. at 27-28 (1). In a footnote, we noted that “[t]he initial question of duty precedes any discussion of sovereign immunity, which is a defense rather than an inroad on one of the elements of a tort.” Id. at 27 (1) n.1 (citation and punctuation omitted). The Court of Appeals‘s majority opinion relied on this footnote
The special concurring opinion rightfully concluded that “[s]overeign immunity is a threshold issue that should be decided before addressing the merits of a plaintiff‘s claims,” Bray, 367 Ga. App. at 386 (Gobeil, J., concurring specially), but then relied on a footnote in Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682, 690 (859 SE2d 33) (2021)2 to conclude that remand to the trial court to address sovereign immunity was unnecessary. See Bray, 367 Ga. App. at 387 (Gobeil, J., concurring specially). We disapprove of the footnote in Love to the extent it suggested that the trial court was authorized to address the merits of claims that could have been barred by sovereign immunity, without first conducting a threshold jurisdictional review of such claims.
Because the applicability of the public duty doctrine is a merits question, the Court of Appeals erred in affirming the trial court‘s ruling on the official-capacity claims on the ground that the public duty doctrine barred all of Bray‘s claims without considering the threshold jurisdictional question of whether sovereign immunity barred Bray‘s claims against Watkins in her official capacity. This Court therefore grants the petition for writ of certiorari, vacates the Court of Appeals‘s opinion, and remands this case to the Court of Appeals for proceedings consistent with this opinion.
Petition for writ of certiorari granted, judgment vacated, and case remanded with direction. All the Justices concur, except Pinson, J., not participating.