Jerome Pelham brought this action against the Board of Regents of the University System of Georgia (“Board of Regents”) seeking damages for personal injuries he suffered during football practice at Georgia Southern University (“Georgia Southern”) when the head coach allegedly ordered Pelham and the other players to fight each other during spring practice. The trial court dismissed Pelham’s complaint, concluding that his claims against the Board of Regents fell under the assault and battery exception to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (“GTCA”), and thus were barred by the doctrine of sovereign immunity. For the reasons that follow, we affirm the trial court’s order оf dismissal.
We review de novo a trial court’s grant of a motion to dismiss on sovereign immunity grounds, bearing in mind that “[t]he party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.” Bonner v. Peterson,
During the 2007-2008 academic year, Pelham was a student enrolled at Georgia Southern and a member of the varsity football team. During his recruitment to play football at the school, Pelham had been informed that he would be eligible to earn a scholarship through his participation and membership on the football team.
Coach Hatcher then moved down the line and closely observed each pair of players fight each other upon his blowing of the whistle. There were no rules to the fights, and players were not restricted to contact allowed by the rules of football. Players were permitted to throw punches to the head and body of the other player with whom they were paired; hold and pull the face mask of the othеr player; grab the jersey of the other player; throw the other player to the ground by pulling his face mask; and trip or “hip toss” the other player. Coach Hatcher told his subordinate coaches not to interfere in the fights and informed the players that they were allowed to stop fighting only when he blew his whistle and moved on tо the next pairing.
Coach Hatcher approached Pelham and the player with whom he was paired, blew his whistle, and instructed them to start fighting. Concerned that they would be cut from the team or lose their opportunity for a scholarship if they did not participate, the two players physically engaged each оther. Pelham, who played the position of defensive end, placed his hands on the shoulders of the other player in the manner typical of a defensive lineman attempting to control an offensive lineman during a game situation. However, the other player grabbed Pelham by the face mask, jerked Pelham’s head from side to side, grabbed Pelham by the jersey, and twisted Pelham to the ground over the player’s leg by tripping him, all of which would have constituted penalties under the rules of football. Pelham fell awkwardly with the other player landing on top of him and his outstretched right leg, resulting in severe, permanent injuries to his right knee and leg.
Pelham subsequently commenced this action against the Board of Regents seeking recovery for his personal injuries sustained at the football practice.
The Board of Regents answered and filed a motion tо dismiss the complaint based on the doctrine of sovereign immunity, contending that Pelham’s claims were barred by the assault and battery exception to the waiver of sovereign immunity contained in the GTCA. The trial court granted the motion to dismiss, finding that the act that caused Pelham’s underlying loss constituted an assault and battery. Pelham now aрpeals from the trial court’s order of dismissal.
1. Pelham contends that the trial court erred in dismissing his negligence and negligence per se claims because they were predicated on Georgia’s anti-hazing law, OCGA § 16-5-61, and thus were not barred by sovereign immunity. We disagree because OCGA § 16-5-61 does not create a statutory waiver of thе Board of Regents’ sovereign immunity.
Under the Georgia Constitution, sovereign immunity from suit extends to all state departments
Sovereign immunity is waived by a legislative act only if the statutory language “specifically provides that sovereign immunity is . . . waived and the extent of such waiver.” Gilbert v. Richardson,
Georgia’s anti-hazing law, OCGA § 16-5-61, provides:
(a) As used in this Code section, the term:
(1) “Haze” means to subject a student to an activity which endangers or is likely to endanger the physical health of a student, regardless of a student’s willingness to participate in such activity.
(2) “School” means any school, collegе, or university in this state.
(3) “School organization” means any club, society, fraternity, sorority, or a group living together which has students as its principal members.
(4) “Student” means any person enrolled in a school in this state.
(b) It shall be unlawful for any person to haze any student in connection with or as a condition or precondition of gaining acceptance, membership, office, or other status in a school organization.
(c) Any person who violates this Code section shall be guilty of a misdemeanor of a high and aggravated nature.
Plainly, OCGA § 16-5-61, a criminal statute, does not evince a clear legislative intent to allow civil damages suits to be brought against thе state for hazing violations. “Nowhere in [OCGA § 16-5-61] has the Legislature specifically provided that sovereign immunity has been waived and the extent of such waiver,” and, therefore, “no waiver can be shown.” (Punctuation and footnote omitted.) Ga. Dept. of Corrections v. James,
2. Pelham further maintains that the trial court erred in concluding that he could nоt proceed with his negligence and negligence per se claims under the waiver of sovereign immunity contained in the GTCA because the assault and battery exception applied. Again, we disagree.
The GTCA provides for a waiver of the state’s sovereign immunity for torts committed by state officers and employees acting within the scope of their official duties or employment, “provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.” OCGA § 50-21-23 (a). In OCGA § 50-21-24, the General Assembly has set forth 13 exceptions to the waiver of sovereign immunity contained in the GTCA. If a tort claim falls within the scope of any of these exceptions, it is barred by sovereign immunity. See OCGA § 50-21-24 (“The state shall have no liability for losses resulting from [any of the enumeration exceptions.]”).
Included among the exceptions to the state’s waiver of sovereign immunity is the “assault and battery” exception, which provides that “[t]he state shall have no liability for losses rеsulting from . . . [a]ssault [and]
Pelham asserts that his negligence and negligence per se claims did not fall within the assault and battery exception to the GTCA because the claims were predicated solely on Coach Hatcher’s act of “hazing” him, which Pelham claims occurred when Coach Hatcher required him to participate in a nonfootball activity that was highly dangerous or risk being excluded from scholarship consideration and membership on the team. As explained by Pelham, “the tortious act of hazing occurred well prior to the orchestrated fight the moment Coach Hatcher conditioned [Pelham’s] membership, standing and participation in the [Georgia Southern] football team upon particiрating in an activity defined as hazing by Georgia law.” According to Pelham, the focus of the sovereign immunity analysis should be on Coach Hatcher’s conduct, which was not itself an assault and battery, rather than on the fact that the end result of that conduct was the commission of an assault and battery by another football player.
This Cоurt has consistently held that in determining whether the exception for assault and battery applies, the focus is not on the government action taken or the duty allegedly breached by the government, but on the act causing the underlying loss, and it is not necessary that such act have been committed by a state officer or emрloyee. The Supreme Court of Georgia has affirmed this reasoning[.]
(Punctuation and footnote omitted.) Pak,
Applying these principles to the present case, we conclude that the assault and battery exception barred the claims asserted by Pelham. The complaint reveals that the loss suffered by Pelham was the severe injury to his leg resulting from being grabbed, tripped, and violently thrown to the ground with the other player landing on top of his outstretched leg. Because the act causing the underlying loss in this case — the оther player physically attacking Pelham — constituted an assault and battery, the exception found in OCGA § 50-21-24 (7) applied. See Youngblood,
3. Lastly, Pelham argues that the assault and battery exception to the GTCA had no bearing upon or application to his separate claims for the Board of Regents’ negligent failure to properly train the coaching staff on university policies and procedures and state laws related to hazing, and for the Board’s negligent failure to properly supervise the coaching staff to prevent hazing during football practices. We are unpersuaded.
In determining whether the [assault and battery] exception applies, our focus is not on which particular state law causes of action a plaintiff has set forth in her complaint, but rather on the underlying conduct that allegedly caused the plaintiffs loss. Any alleged losses arising out of conduct that would constitute the common law tort of assault or battery upon the plaintiffs person fall within the exception, irrespective of what particular state law causes of action the plaintiff brings in order to recover for those losses [.]
(Citations and footnote omitted.) Davis v. Standifer,
In sum, we conclude that the trial court did not err in dismissing under the GTCAall of Pelham’s claims asserted against the Board of Regents. In reaching this conclusion, we certainly do not condone the alleged misconduсt of the Georgia Southern coaching staff in this case; in fact, we urge the state to independently investigate the matter and commence any administrative disciplinary proceedings that might be warranted as the result of such an investigation. Nevertheless, while we sympathize with Pelham,
sovereign immunity is a harsh doctrine, not an equitable one. Indeed, it is just the opposite of equity —• it is the state declaring that it cannot be sued even where it would otherwise be liable. Nevertheless, it is a constitutionally recognized doctrine, and the constitution expressly provides that immunity for tort claims can be waived only by a legislative act specifically providing for such waiver and setting forth the extent thereof.
(Punctuation and footnote omitted.) Pak,
Judgment affirmed.
Notes
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 mаke factual findings necessary to resolve the jurisdictional issue. See OCGA § 9-11-12 (b) (1); Dept. of Transp. v. Dupree,
Pelham also asserted negligence and punitive damages claims against Coach Hatcher and the Athletic Director of Georgia Southern in their individual capacities, but those claims were later dismissed without prejudice in a consent order.
See also Pak,