Christopher Southerland died on January 1, 2005, as a result of head injuries inflicted by his cell mate, Antwain Beasley, at Rutledge State Prison in Muscogee County. Southerland’s mother, Louise Southerland, individually and as the administratrix of her son’s estate, filed a wrongful death action against the Georgia Department of Corrections (“GDOC”), which operates the prison, alleging that prison employees negligently failed to follow GDOC policy and procedures regarding the housing and level of care required to be given to an inmate such as Southerland, who was mentally retarded and had been assigned a Level III classification. According to the complaint, the GDOC’s standard operating procedures required that Level III inmates be housed in a mental health unit. Instead, Southerland was placed with Beasley, a Level I inmate, who was hearing voices, was not taking his medication, and had threatened to harm Southerland. The GDOC filed a motion to dismiss, contending that the action, filed under the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq., was barred by sovereign immunity. Specifically, the GDOC invoked the exception to the waiver of sovereign immunity found in OCGA § 50-21-24 (7), which provides that “the state shall have no liability for losses resulting from” certain enumerated torts, including assault and battery. The trial court granted the motion following a hearing, and Ms. Southerland appeals. We affirm.
“The party seeking to benefit from a waiver of sovereign immunity has the burden to establish waiver, and any suit brought to which an exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction.” 1 The trial court’s ruling on the motion to dismiss is reviewed de novo, 2 while factual findings are sustained if there is evidence supporting them. 3 In the case at bar, the trial court found, based on the pleadings, that Southerland was found bleeding on the floor of his cell on December 12, 2004, having been injured by Beasley; that Southerland died as a result of those injuries on January 1, 2005; and that the death certificate reflected the cause of Southerland’s death as “an intrac-ranial bleed secondary to sub-dural hematoma, S/P assault in Georgia jail and respiratory failure.” Because Southerland’s injuries and death resulted from an assault and battery, the trial court concluded that OCGA § 50-21-24 (7) barred Ms. Southerland’s claims. We agree.
1. Pursuant to our state constitution, sovereign immunity insulates the state and its departments and agencies from liability
Unlike other subsections within OCGA § 50-21-24, subsection (7) is not limited in application to acts taken by a [s]tate officer or employee but covers all losses resulting from the torts enumerated therein. . . . The focus, therefore, is not on the duty allegedly breached by the [s]tate but on the act causing the under lying loss. 9
Dept. of Human Resources v. Coley 10 is a case on point. In Coley, a patient in a state hospital strangled another patient to death, and the decedent’s executrix sued the DHR, alleging that the DHR’s violation of its duty to protect the decedent from harm resulted in his murder. 11 Specifically, the plaintiff alleged that the patient who killed the decedent had threatened to kill someone and that the DHR negligently placed the patient in a room with the decedent. 12 In reversing the denial of the DHR’s motion to dismiss, we held:
In determining whether the exception set forth in OCGA § 50-21-24 (7) 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 employee. 13
Coley is apposite and controlling. Because the act causing the underlying loss in this case, the beating death of Southerland, constitutes a battery, the exception in OCGA § 50-21-24 (7) to the waiver of sovereign immunity applies, and the trial court did not err in dismissing the wrongful death and negligence claims against the GDOC. 14
2. Notwithstanding the assault and battery exception, Ms. Southerland argues that the GDOC waived its sovereign immunity pursuant to the discretionary function exception to the GTCA. Under this exception, the state is not liable for losses resulting from the “exercise or performance of... a discretionary function or duty on the part of a state
3. Finally, Ms. Southerland argues that the GDOC waived its sovereign immunity pursuant to the “public duty doctrine,” as set forth by our Supreme Court in City of Rome v. Jordan. 17 The doctrine provides that a governmental entity may not be held liable for the failure to provide police protection to individual citizens, except where a special relationship exists between the injured party and the governmental actor. 18 But as we explained in Coley, “[t]he 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.” 19
Judgment affirmed.
Notes
(Footnote omitted.)
In re Carter,
Williams v. Ga. Dept. of Transp.,
Murray v. Ga. Dept. of Transp.,
Ga. Const. 1983, Art. I, Sec. II, Par. IX (e).
OCGA § 50-21-23 (a).
OCGA § 50-21-24 (7).
(Punctuation omitted.)
Dept. of Human Resources v. Coley,
Ga. Const. 1983, Art. I, Sec. I, Par. XVII (prohibiting abuse of any person in prison); OCGA §§ 42-5-52 (a) (requiring classification and separation of mentally ill inmates); 42-5-2 (a) (requiring prison to provide needed medical and hospital attention to inmates).
Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd.,
Supra.
Id. at 392.
Id.
Id. at 394 (1).
Id. See also
Youngblood,
supra;
Christensen v. State of Ga.,
OCGA § 50-21-24 (2).
OCGA § 50-21-22 (2). See
Edwards v. Dept. of Children &c. Sucs.,
See
Jordan,
supra;
Dept. of Transp. v. Brown,
Coley,
supra at 394 (1), n. 9, citing
State Bd. of Ed. v. Drury,