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IN THE SUPREME COURT
STATE OF GEORGIA
REGINA EDWARDS, ET AL, Petitioners,
vs.
GEORGIA DEPARTMENT OF
CHILDREN AND YOUTH SERVICES, Respondent.
CASE NO.: S99GO900
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BRIEF OF THE GEORGIA TRIAL LAWYERS ASSOCIATION
AS AMICUS CURIAE
Billy N. Jones, Esq., President
Georgia Trial Lawyers Association
Charles M. Cork, III, Esq., Chairman
Amicus Curiae Committee
Prepared By:
Charles A. Mathis, Esq.
Georgia State Bar No.: 477025
Middleton, Mathis, Adams & Tate
100 Peachtree Street, Suite 1400
Atlanta, GA 30303
(404) 523-5000
Glenn E. Kushel, Esq.
Georgia State Bar No.: 430498
Mills, Moraitakis, Kushel & Pearson
3445 Peachtree Road, NE, Suite 425
Atlanta, GA 30326
(404) 261-0016
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NOTICE OF APPEARANCE
COMES NOW the Georgia Trial Lawyers Association and,
pursuant to Rule 23 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.
Respectfully
submitted by the Georgia Trial Lawyers Association on this the _____
day of ____________________________, 1999.
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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 this
Court to reverse the decision of the Court of Appeals in this case,
showing the Court as follows:
LEGAL ARGUMENT
THIS CASE IS GOVERNED BY STATUTORY
CONSTRUCTION OF THE GEORGIA TORT CLAIMS ACT
RATHER THAN THE COMMON LAW OFFICIAL
IMMUNITY JURISPRUDENCE PREDATING THE
GEORGIA TORT CLAIMS ACT.
This Court has previously held that the purpose of the
Georgia 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. Curtis v. Board of Regents, 262 Ga. 226,
416 S.E.2d 510, (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).
R. Perry Sentell, Jr., one of the foremost authorities
on governmental liability law in Georgia, characterized these ambiguities
as follows:
Over time, some of the most paralyzing analytical confusion has surrounded
the tort liability of governmental officers and employees. An
extensive patchwork of statutes and court decisions virtually assures
a sentiment for every taste. It also presents an obstacle to every
effort at clarification. This legislative and judicial morass
yields grudgingly indeed, even to mere attempts at orderly description.
R. Perry Sentell, Jr., Local Government Tort Liability: The Summer of
’92, 9 Georgia State University Law Review 405 (1993).
The General Assembly’s efforts to resolve this “morass”
included passage of the Georgia Tort Claims Act. With respect
to liability of the state for torts of governmental officers and employees,
the Act provided a definition of “discretionary function or duty.”
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). In Gilbert, this Court recognized the basis
for immunity to public employees 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 the 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 Georgia Tort Claims Act specifically
precludes suits against individual state employees and requires that
suit be brought against a department of the State itself, the need no
longer exists 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.
The Court of Appeals’ decision herein is the latest example of
improper importation of common law official immunity jurisprudence into
the body of law interpreting the “discretionary function or duty”
exception to state liability codified by the Georgia Tort Claims Act.
O.C.G.A. §50-21-22 (2). This Court recognized in Dept. of
Transportation v. Brown, 267 Ga. 6, 471 S.E.2d 849 (1996), that the
discretionary-versus-ministerial-duty analysis peculiar to official
immunity cases is misplaced when applied to the much narrower discretionary
function exception to the state’s waiver of sovereign immunity,
which is expressly defined by statute. 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 (1996).
In official immunity cases, Georgia courts have broadly defined “discretionary
acts” as those which call for “the exercise of personal deliberation
and judgment, which in turn entails examining the facts, reaching reasoned
conclusions, and acting on them in a way not specifically directed.”
Joyce v. Van Arsdale, 196 Ga. App. 95, 96, 395 S.E.2d 275 (1990).
By contrast, in the Georgia Tort Claims Act applicable to this case,
the legislature narrowly defined “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.” (Emphasis supplied.) O.C.G.A. §50-21-22 (2). The
Court of Appeals, however, as well as the Appellee, continues to confuse
the law by relying upon official immunity cases, even dicta of official
immunity cases, in construing the GTCA.
For example, Appellee cites and relies upon the recently decided case
of Parrish v. State, Case No. S98G1804 (Decided April 12, 1999), even
though that case addresses only the personal liability of the officer
and warden and their official immunity and does not involve or address
the liability of the state or the application of the specially codified
discretionary function exception to the state’s waiver of immunity.
Similarly, in its decision herein, the Court of Appeals followed Cantrell
v.Thurman, 231 Ga. App. 510, 449 S.E.2d 416 (1998), wherein the Court
of Appeals noted in pure dicta that “what medical care to provide
is discretionary and therefore is subject to immunity.” The
Court of Appeals also cited this Court’s decision in Keenan v.Plouffe,
267 Ga. 691, 482 S.E.2d 253 (1997). It cannot be overstated that
neither Cantrell nor Keenan involve the application of the discretionary
function exception to the GTCA. Cantrell and Keenan address the
official immunity of the individual medical practitioners and do not
involve the liability of the State or its agencies under the GTCA. The
misplaced reliance of the Court of Appeals on Cantrell, Keenan, and
the other official immunity cases cited by the Court of Appeals herein
confuses the very expansive definition of official immunity for “discretionary
acts” and the narrower, statutory definition of “discretionary
function or duty.”
Notwithstanding this Court’s holding in Brown and the judicial
obligation to analyze the facts of this case in accordance with the
statutory definition provided by the Act, the Court of Appeals did not
address whether the decisions of State employees in deciding whether
to provide medical care to Latasha Edwards constitute policy judgments
based upon consideration of social, economic or political factors.
The Court of Appeals accordingly did not truly weigh the conduct of
the state employees charged with the care of Latasha Edwards against
the statutory definition of discretionary function or duty. Instead,
the Court erroneously adopted the overly broad rule that all decisions
regarding the type and how much medical care to be provided to inmates
are subject to sovereign immunity, regardless of whether such decisions
are policy judgments within the meaning of Brown and the GTCA.
Applying the proper statutory definition, it cannot be said as a matter
of law that a state employee who fails to provide medical care to a
child in custody in violation of the policies and procedures of the
Macon YDC (which absolutely require that a student exhibiting symptoms
of a serious acute illness be evaluated by a physician) is engaged in
the exercise of a policy judgment. Rather, a jury question exists
as to whether the negligence of the decision makers herein caused or
contributed to the death of a child.
CONCLUSION
The Court of Appeals has expanded the scope of the discretionary
function exception of O.C.G.A. §50-21-24(2) well beyond the definition
of “discretionary function or duty,” which relates only to
policy decisions based upon consideration of social, political, or economic
factors, to include all professional medical judgments as a matter of
law. Amici urge the Court to hold that professional medical judgments
do not equal policy judgments and that judgments of lay persons respecting
whether to provide medical care made in the absence of any consideration
of social, political, or economic factors do not constitute policy judgments
within the meaning of O.C.G.A. §50-21-22(2). Given the absence
of evidence of any consideration of these factors by the decision makers
herein, Amici urge the Court to reverse the judgment of the Court of
Appeals.
Respectfully submitted,
MIDDLETON, MATHIS, ADAMS & TATE
BY:
CHARLES A. MATHIS
Georgia State Bar No.: 477025
100 Peachtree Street
Suite 1400
Atlanta, GA 30303
(404) 523-5000
MILLS, MORAITAKIS, KUSHEL & PEARSON
BY:
GLENN E. KUSHEL
Georgia State Bar No.: 430498
3445 Peachtree Road, NE
Suite 425
Atlanta, GA 30326
(404) 261-0016
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