Chair's Note: This brief was scanned into a
document and edited. This process is subject to error.
IN THE SUPREME COURT
STATE OF GEORGIA
DONNA KAY BRANTLEY and CHRIS WYNN,
as natural parents of deceased child LISA MARIE WYNN,
Petitioners,
v.
DEPARTMENT OF HUMAN RESOURCES,
Respondent.
CASE NO. S99C0595
------------------------------------------------------------------------
BRIEF OF THE GEORGIA TRIAL LAWYERS ASSOCIATION
AS AMICUS CURIAE
------------------------------------------------------------------------
NOTICE OF APPEARANCE
COMES NOW the Georgia Trial Lawyers Association
and, pursuant to Rule 42 of the Rules of the Supreme Court of the
State of Georgia, gives notice of its appearance in this action as
Amicus Curiae, pursuant to its Constitution and authorized by its
Executive Committee, and respectfully prays that this Honorable Court
consider the written arguments submitted by the Georgia Trial Lawyers
Association on behalf of its members and clients. In support thereof,
the Georgia Trial Lawyers Association shows that it is a voluntary
organization comprised of approximately 2,000 trial lawyers licensed
to practice in this State whose clients have an interest in this Court's
ruling on the important issues presently before it.
Over the years, the Georgia Trial Lawyers
Association has consistently appeared as Amicus Curiae in various
matters presented before Georgia's state and federal courts. The intent
of the Georgia Trial lawyers Association is not to support the appellant
or appellee as Amicus Curiae. Rather, the Georgia Trial Lawyers Association
desires and attempts to aid the Court to a proper resolution of this
case by seeing that the law is correctly and thoroughly followed.
ARGUMENT OF LAW AND CITATION OF AUTHORITY BY
AMICUS GEORGIA TRIAL LAWYERS ASSOCIATION
COMES NOW the Georgia Trial Lawyers Association
and, having made its appearance as Amicus Curiae, respectfully requests
that the Court grant certiorari in this case, showing the Court as
follows:
ISSUE PRESENTED
This is a case "of great concern, gravity
to the public, and importance to the public," as well as to members
of the Bar. Supreme Court Rule 40. The GTLA believes that the Court
of Appeals ignored its own precedent, as well as the express language
of the Tort Claims Act, in ruling that the State cannot be held liable
for the drowning of a child due to negligent supervision by a foster
parent, when the Act itself specifically provides coverage to the
State for suits arising from the negligence of foster parents. Dept.
of Transportation v. Brown, 218 Ga. App. 178, 460 S.E. 2d 812 (1995),
aff'd, 267 Ga. 6, 471 S.E. 2d 849 (1996) (holding that the courts
must defer to the Legislature's definition of "discretionary
function"); O.C.G.A. §50-21-22(2) (discretionary function
is one involving "policy judgment choosing among alternative
courses of action based upon a consideration of social, political
or economic factors"); O.C.G.A. §50-21-22(7) (foster parents
are listed among covered state employees). If not corrected, this
erroneous ruling by the Court of Appeals will impact all future tort
litigation against the State in ways not intended by the Legislature.
LEGAL ARGUMENT
A.
THIS CASE IS GOVERNED BY STATUTORY CONSTRUCTION
OF THE TORT CLAIMS ACT RATHER THAN THE COMMON LAW PREDATING THE TORT
CLAIMS ACT
This case involves the construction of the
"discretionary function" exception to state liability
under the Tort Claims Act. O.C.G.A. §§50-21-24(2), 50-
21-22(2). Prior to this case, the Court of Appeals had properly
held that "the Georgia Tort Claims Act defines discretionary
function or duty as one 'requiring a state officer or employee to
exercise his or her policy judgment choosing among alternative courses
of action based upon a consideration of social, political or economic
factors."' Dept. of Transportation v. Brown, 218 Ga. App. 178,
460 S.E. 2d 812 (1995), aff'd, 267 Ga. 6, 471 S.E. 2d 849 (1996)
The instant case marks a departure from this precedent which, whether
based on oversight or intentional disregard for the will of the
Legislature, must be addressed by this Court.
"The cardinal rule to guide the construction
of laws is, first, to ascertain the legislative intent and purpose
in enacting the law and then to give it that consideration which will
effectuate the legislative intent and purpose." 218 Ga. App.
at 180, 460 S.E. 2d at 815, citing City of Calhoun v. North Ga. E.M.C.,
233 Ga. 759, 761, 213 S.E. 2d 596 (1975); see also Head v. H.J. Russell
Construction Co., 152 Ga. App. 864, 264 S.E. 2d 313 (1980) This Court
has previously held that the purpose of the Tort Claims Act, as well
as the constitutional amendment authorizing it, was "to redraw
and redefine the terms of the state's waiver of sovereign immunity."
262 Ga. 226, 416 S.E. 2d at 512 (emphasis added) Curtis v. Board of
Regents, 262 Ga. 226, 416 S.E. 2d 510, 12 (1992). The Legislature
did just that by adopting a precise statutory definition of "discretionary
function"--one of the enumerated exceptions to state liability
under the Act--in order to clarify the ambiguities which had existed
under previous law. O.C.G.A. §50-21-22(2).
B.
THE TORT CLAIMS ACT CONTAINS A SUCCINCT
DEFINITION OF "DISCRETIONARY FUNCTION" WHICH IS NARROWER
THAN THE COMMON LAW DEFINITION
According to O.C.G.A. §50-21-
24(2), "the state shall have no liability for losses resulting
from ... the 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.... For purposes of the Act, the term "employee shall
also include foster parents and foster children." O.C.G.A. §50-21-22(7)
The Act goes on to define "discretionary function or duty"
as a "function or duty requiring a state officer or employee
to exercise his or her policy judgment in choosing among alternative
courses of action based upon a consideration of social, political,
or economic factors." O.C.G.A. §50-21-22(2) (emphasis
added).
Under this statutory definition, courts are
no longer required to engage in hair-splitting over whether a split-second
judgment by a state employee--say, for example, a police officer's
"decision" to exceed the speed limit or not turn on a blue
light and siren when responding to a call-- is discretionary or purely
ministerial. Compare Logue v. Wright, 260 Ga. 206, 392 S.E. 2d 235
(1990) (involving a county officer but illustrating the ambiguity
of common-law official immunity outside the Tort Claims Act). The
plain and ordinary meaning of the language in the Tort Claims Act
unequivocally declares that a state employee must be making a "policy
judgment"--one which requires the employee to weigh various "social,
political or economic factors"--before the state is entitled
to immunity for his or her conduct under the discretionary function
exception. O.C.G.A. §§50-21- 22(2), 50-21-24(2). In the
words of Chief Justice Benham, writing for a unanimous Court, "we
need not consider previous cases involving discretionary versus ministerial
decisions because the Legislature included in this statute the definition
of discretionary function or duty." Dept. of Transportation v.
Brown, 267 Ga. 6, 7, 471 S.E. 2d 849, 851 (l996)
C.
THE COURT OF APPEALS IMPROPERLY
APPLIED COMMON LAW PRINCIPLES RATHER THAN THE DEFINITION CONTAINED
IN THE TORT CLAIMS ACT IN UNDER THE "DISCRETIONARY FUNCTION"
EXCEPTION
Applying the proper statutory definition,
it cannot be said that a state employee who places a two-year-old
child in a swimming pool and then walks away is engaged in the exercise
of a discretionary function or duty. The plaintiffs in this case are
not alleging that a state employee failed to develop or implement
drowning prevention procedures, or that he otherwise made a "policy
judgment" which would rise to the level of a discretionary function--rather,
plaintiffs, sole contention is that the employee was negligent in
failing to keep his eye on a two-year-old which he had just left in
a swimming pool. Yet by relying upon the very "previous cases"
which the Supreme Court has already said are inapplicable, the Court
of Appeals reached an anomalous result that radically contradicts
the intent of the legislators who crafted the definition of "discretionary
function" which is applicable to cases arising under the Tort
Claims Act. Id.
Rather than following the definition established
by the Legislature and approved by both the Court of Appeals and this
Court, the Court of Appeals has opted to return to the thicket of
ambiguity which characterized the common law before enactment of the
Tort Claims Act. Given the clear legislative intent to provide definition
to an area of the law that was confusing at best and contradictory
at worst, this Court has a duty to set the law back on its proper
course.
The Legislature's attempt to narrow the definition
of "discretionary function"--and thus to narrow the immunity
which it embodies--is consistent with this Court's reasoning in Gilbert
v. Richardson, 264 Ga. 744 (1994), which recognized the basis for
immunity to public employees as stated by the Restatement of Torts
2d, §895D, Comment (b). The basis for such immunity is "the
need of preserving independence of action without deterrence or intimidation
by the fear of personal liability and vexatious suits," which
has led to "the general rule that tort liability should not be
imposed for conduct of a type for which the imposition of liability
would substantially impair the effective performance of a discretionary
function." 264 Ga. at 750. However, now that the Tort Claims
Act specifically precludes suits against individual state employees
and requires that suit be brought against a department of the State
itself, there is no longer as much need to protect state employees
from being deterred or intimidated by fear of personal liability.
The Act's absolute protection of individual state employees, coupled
with the monetary caps on liability which protect the interests of
the State treasury, clearly justifies a broad construction of the
Act in favor of allowing citizens to recover for injuries inflicted
by careless state employees-- rather than strictly limiting its application
in a way which would be unfair to the public, would ignore settled
rules of statutory construction, and would defeat the intent of both
the Legislature and the electorate in adopting the Act and ratifying
the constitutional amendment which authorized it.
CONCLUSION
Based upon the foregoing argument of law and
citation of authority, the Georgia Trial Lawyers Association respectfully
requests that the Petition for Certiorari be granted and, upon certiorari,
that the decision of the Court of Appeals be reversed.
Respectfully submitted,
Craig T. Jones
|
