COWART v. GEORGIA DEPARTMENT OF HUMAN SERVICES.
A16A1515
Court of Appeals of Georgia
FEBRUARY 8, 2017
340 Ga. App. 183 | 796 SE2d 903
RICKMAN, Judge.
“We review de novo a trial court‘s grant of a motion to dismiss on sovereign immunity grounds, bearing in mind that the party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.” (Citation and punctuation omitted.) Pelham v. Bd. of Regents of Univ. System of Ga., 321 Ga. App. 791 (743 SE2d 469) (2013). “Because a motion to dismiss on sovereign immunity grounds is based upon the trial court‘s lack of subject matter jurisdiction, the trial court is entitled to make factual findings nеcessary to resolve the jurisdictional issue.” (Citations omitted.) Id. at 791, n. 1. Here, the trial court did not make any factual findings, and we therefore view the factuаl allegations in the complaint as true to determine whether the complaint shows with certainty that Cowart would not be entitled to relief under any stаte of facts that could be proven in support of her claim. See James v. Ga. Dept. of Pub. Safety, 337 Ga. App. 864, 865 (1) (789 SE2d 236) (2016); McCoy v. Ga. Dept. of Admin. Svcs., 326 Ga. App. 853, n. 1 (755 SE2d 362) (2014).
In her initial complaint, Cowart alleged that in August 2013, J. C.‘s uncle contacted a case manager with the Bartow County Department of Family and Children Services (DFCS) and informed her that J. C.‘s mother was using methamphetamine and that J. C. was in imminent dаnger of harm. J. C.‘s uncle also informed the case manager where J. C.‘s mother could be found. Cowart alleged that the case manager took nо action to address the report that J. C. was in danger, in violation of DFCS‘s established policies and protocols, and asserted claims against DHS fоr negligence, wrongful death, and violation of the Georgia Open Records Act. In her initial complaint, Cowart also alleged that J. C.‘s mother and her boyfriend, “while under the influence of . . . methamphetamine and other illegal drugs committed unspeakable and horrible acts of torture, barbarism,
DHS moved to dismiss the complaint for lack of subject matter jurisdiction based on an exception to the State‘s waiver of sovereign immunity for losses resulting from assault or battery (the “assault and battery” exception). In response, Cowart amended her complaint, deleting the allegations that J. C.‘s mоther and her boyfriend committed “acts of torture, barbarism, cruelty, violence, molestation, and savagery” upon J. C., resulting in her death, and replacing them with allegations that J. C.‘s mother and her boyfriend were negligent in failing to provide care and support and timely medical treatment and that “[a]fter four months of enduring constant harm and neglect caused by the ... negligent acts and omissions of [J. C.‘s mother and her boyfriend], [J. C.] died.”
The trial court dismissed Cowart‘s claims for damages resulting from a battery on J. C. under the assault and battery exception to the State‘s waiver of sovereign immunity and dismissed Cowart‘s claims for damages caused by negligence and neglect under the discretionary function exception.2 Cowart only appeals the trial court‘s ruling on hеr claims for damages caused by negligence.
Under the Georgia Constitution, sovereign immunity extends to the State and all of its departments and agenсies.
Cowart contends that the trial court erred by concluding that her claims are barred by the discretionary function еxception to the State‘s waiver of sovereign immunity, which provides that the State shall have no liability for losses resulting from “[t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.”
[F]or the “discretionary function” exception to apply, it must be shown that a state оfficer or employee was afforded discretion with respect to the conduct that is alleged to amount to a tort, [and] that an exerсise of the discretion afforded amounts to a policy judgment based upon a consideration of social, political, or economic factors.
(Citations and punctuation omitted.) Ga. Dept. of Human Svcs. v. Spruill, 294 Ga. 100, 106 (2) (751 SE2d 315) (2013).
We must first consider the extent to which DFCS policy afforded discretion to the case manager. Here, although the complaint alleges that DFCS policies and protocols required the case manager to conduct an investigation into the report that J. C. was in danger, thе existing record lacks evidence that would allow us to determine if the case manager had the discretion to perform absolutely no investigation, as alleged in the complaint. Without such evidence, we cannot determine whether the discretionary function exception applies here. Accordingly, we conclude that the trial court erred in granting DHS‘s motion to dismiss under
DECIDED FEBRUARY 8, 2017.
Perrotta & Cahn, Anthony N. Perrotta, Robert W. Lamb, for appellant.
Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Robert L. Bunner, Senior Assistant Attorneys General, for appellee.