Sаrah Kyle Ratliff appeals the trial court’s order granting summary judgment to Cobb County Sheriff Neil Warren and six of his deputies
[O]n appeal from a grant of a motion for summary judgment, we review the evidence de novo in the light most favorable to the nonmovant to determine whеther a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law.
(Citation omitted.) Burnside v. GEICO Gen. Ins. Co.,
Viewed in the light most favorable to Ratliff, the evidence shows that on April 2, 2009, Ratliff went to the ADC with her friend, Tansy Collor, to pick up Collor’s boyfriend, Yusef Umrani, who was being released from custody. At the same time, Willie Marie McDonald, Umrani’s ex-girlfriend and the mother of his children, also arrived at the ADC to pick up Umrani.
McDonald had begun making phone calls and sending text messages to Collor after Umrani went to jail. In these calls and text messages, McDonald threatened both Ratliff and Collor and admonished that they were “sticking [their noses] in the wrong business” and that they would “get what’s coming [to them].” McDonald told Collor that she would send Umrani to jail before she let Collor have him and that she would kill Collor. As a result, Ratliff аnd Collor were concerned about what McDonald might do that day when they saw her at the ADC.
Ratliff and Collor went inside one of the ADC’s buildings (the “First Building”) to determine where in the ADC complex Umrani would be released, and they asked two deputies for help, explaining that the mother of Umrani’s children was outside and that they had previous problems with her. The deputies told the women that they could not help, but directed them to the visitor’s center, where the deputies said Umrani would be released. Ratliff and Collor passed McDonald on the way out the door, without speaking.
Ratliff and Collor left the visitor’s centеr and drove back down to the First Building, while the two deputies drove over in their car. Ratliff parked, and the two women got out of the car, while the deputies were paused at a stop sign. Meanwhile, McDonald had backed her diesel truck out of a parking space and was sitting between Ratliff’s and the deputies’ cars. Four other deputies were standing nearby. Ratliff said that she screamеd at Sutherland and Coachman that they needed to stop McDonald, but the deputies standing in the area told the women that McDonald was not going to do anything and the women could go ahead and cross over the parking lot to the First Building.
Approximately two years later, Ratliff filed suit asserting claims for assault and battery against McDonald
1. Before considering the merits of Ratliff’s claims, we first address the issue of whether Warren and the Deputies are protected by immunity. See Cameron v. Lang,
Ratliff brought suit against Warren only in his official capacity as the Sheriff of Cobb County, asserting liability under the doctrine of respondeat superior. And “[sovereign immunity is the immunity provided to
The doctrine of sovereign immunity, which the Sheriff has raised as a defense, bars any claims against him in his official capacity. Under the Georgia Constitution, as amended in 1991, “sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” [Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).] Sovereign immunity has been extended to counties and thus protects county employees who are sued in their official capacities, unless sovereign immunity has been waived.
(Citations omitted.) Butler v. Carlisle,
Thus, Ratliff’s claim against Warren for respondeat superior is barred by sovereign immunity.
A county may be liable for a county employee’s negligence in performing an official function [only] to the extent the county has waived sovereign immunity. Because in this case, there is no evidence that the county has waived its sovereign immunity, the grant of summary judgment on the respondeat superior claim was appropriate.
(Citation and punctuation omitted.) Russell v. Barrett,
Similarly, to the extent that Ratliff asserts claims against the Deputies in their official capacities, those claims, too, are barred by sovereign immunity in the absеnce of a waiver. Coffey v. Brooks County,
Moreover, contrary to Ratliff’s argument, the public duty doctrine does not create a separate exception to sovereign immunity; rather, it is an additional restriction on governmental liability:
The public duty doctrine does not act as a judicially created exception to the state’s sovereign immunity. Indeed, because sovereign immunity has constitutional status, it cannot be abrogated by the judiciary. Rather, the public duty doctrine simply defines the scope of a governmental entity’s duty to provide police protection to individual citizens, and provides thаt liability generally can exist only where there is a special relationship between the injured party and the alleged governmental tortfeasor. Thus, the [public duty] doctrine serves to restrict the liability of governmentalentities in those situations where sovereign immunity has otherwise been waived or is inapplicable (e.g., where a municipality has purchased liability insurance) — it does not аct as an exception to sovereign immunity where such immunity has not been waived.
(Citations omitted.) Dept. of Human Resources v. Coley,
Accordingly, we affirm the trial court’s grant of summary judgment to Warren and to the Deputies in their official caрacities.
2. Ratliff further seeks to recover from the Deputies, individually, based on her allegations that they failed to protect her from McDonald’s assault.
We note the Deputies may also have had a potential immunity defense to those claims.
The doctrine of official immunity, also known as qualified immunity, affords limited protection to public officers and employees for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption. A public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.
(Citations and punctuation omitted.) Burroughs v. Mitchell County,
However, the Deputies did not assert official immunity in the motion for summary judgment, and thus we cannot decide this appeal on that basis. See Maxwell v. Mayor & Aldermen of the City of Savannah,
(a) Ratliff assеrts that the Deputies are liable under OCGA § 51-3-1 for negligence “in their unofficial role of keeping and maintaining the grounds of the [ADC].” However, we agree with the trial court’s conclusion that Ratliff failed to present evidence in support of each of the elements of her premises liability claim, entitling the Deputies to summary judgment.
“[A] property owner is not an insurer of an invitee’s safety, and an intervening criminal act by a third party generally insulates a proprietor from liability unless such criminal act was reasonably foreseeable.”
In order to be reasonably foreseeable, the criminal act must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers against the risk posed by that type of activity.
(Citation and punctuation omitted.) Drayton v. Kroger Co.,
In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While thе prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the [owner or occupier’s] attention to the dangerous condition which resulted in the litigated incident. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rаther than summary adjudication by the courts.
(Citations and punctuation omitted.) Sturbridge Partners v. Walker,
Here, Ratliff presented no evidence of any prior similar incidents at the ADC. Moreover, the evidence reflects that any prior threats by McDonald toward Ratliff appear to be generalized in nature,
“But even if an intervening criminal act may have been reasonably foreseeable, the true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citations and punctuation omitted; emphasis supplied.) Whitfield,
(b) Ratliff asserts that the trial court erred in granting summary judgment on her recklessness claim. Ratliff asserted this claim in support of her prayer for punitive damages, citing OCGA § 51-12-5.1 (b). A claim for punitive damages is derivative in nature and “will not lie in the absence of a finding of compensatory damages on an underlying claim.” D. G. Jenkins Homes, Inc. v. Wood,
(c) We also find no need to address the public duty doctrine with regard to the claims against the Deputies in their individual capacities. As discussed in Division 1, above, that doctrine does not create a separate cause of action but rather acts only to limit governmental liability. Because we have found that Ratliff’s other causes of action fail on the merits, we find no need to consider this defense as to the claims against the Deputies personally.
Accordingly, we affirm the trial court’s order granting summary judgment to the Deputies.
Judgment affirmed.
Notes
Ratliff named six John Doe deputies as defendants in her complaint, but later appeared to identify at least some of these “John Does” in her deposition. Those individuals apparently were not named as defendants in the lawsuit, but counsel has made an appearance, moved for summary judgment and submitted a responsive brief on appeal on the deputies’ behalf. Moreover, Ratliff designated only portions of the trial court record for inclusion on appeal, so we do not have a complete picture of the proceedings below. Accordingly, we will treat the deputies as parties for purposes of this appeal, and for ease of reference, we will refer to them collectively as the “Deputies.”
Sutherland and Coachman denied any prior knowledge of or experience with McDonald. They also denied that Ratliff and Collor told them that McDonald had thrеatened them, only that there might be a problem. They also said that they instructed Ratliff and Collor to wait at the visitor’s center while they retrieved Umrani so they could avoid contact with McDonald.
Coachman said that he never saw or heard Ratliff and Collor wave, point, or yell at them; nor did he hear McDonald threaten the two women.
McDonald is not a party to this appeal.
Although Ratliff’s complaint alleged that governmental immunity had been waived under the Georgia Tort Claims Act (the “GTCA”), OCGA § 50-21-23, “[t]he waiver of sovereign immunity contained in [the GTCA] does not apply to counties. OCGA § 50-21-22 (5).” Currid v. DeKalb State Court Probation Dept.,
Additionally, we note the Supreme Court of Georgia has applied sovereign immunity to bar negligence claims arising from injuries incurred on county premises. See also Wilmoth v. Henry County,
“[A] grant of summary judgment must be affirmed if right for any reason, whether stated or unstated.” (Citation and punctuation omitted.) Pinnacle Properties V, LLC v. Mainline Supply of Atlanta, LLC,
Because appellant designated only portions of the record for inclusion on appeal, it is unclear whether the Deputies ever asserted the bar of official immunity.
Moreover, it appears that McDonald made such threats primarily in her communications with Collor, rather than directly to Ratliff.
Moreover,
[t]his was not a random stranger attack but rather grew out of a specific private relationship which had no connection with [the ADC] whatsoever. The place chosen by [McDonald] for the attack just happened to be [the ADC’s] parking lot. [The D eputies and the AD C] did not create or allow to exist an environment which placed [Ratliff] at risk any more than if she had been at home or on the street.
(Emphasis omitted.) Griffin,
The case of Clarke v. Freeman,