IN THE COURT OF APPEALS
STATE OF GEORGIA
Rosa Walker Hilson,
Appellant,
v.
State of Georgia, Department of Public Safety,
Appellee.
CASE NO. A98A1979
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AMICUS CURIAE BRIEF OF THE
GEORGIA TRIAL LAWYERS ASSOCIATION
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I. IDENTITY AND INTEREST
COMES NOW, the Georgia Trial Lawyers Association
and files this Amicus Curiae Brief in accordance with Rule 25 of this
Court and respectfully requests this Court to consider this Brief
and reverse the ruling of the Trial Court.
The Georgia Trial Lawyers Association is a voluntary
organization comprised of more than 2,000 lawyers licensed to practice
law in the State of Georgia, whose clients have an interest in this
Court's rulings on important issues.
Historically the Georgia Trial Lawyers Association
has spoken for the interests of injured victims.
II. STATEMENT OF PERTINENT FACTS
On June 14, 1994, the Appellant, Rosa W. Hilson,
a civilian, was operating a car on Georgia State Route 3 at its intersection
with Georgia State Route 32 in Leesburg, Lee County, Georgia (Plaintiff's
Complaint at 3, R4). State Trooper, Rufus Grace (hereinafter "Trooper")
struck Appellant's car with his cruiser. The cruiser operated by Trooper
on said occasion was owned by Appellee and was being operated within
the scope of Trooper's employment as a Georgia State Trooper. Trooper
contended he was chasing a speeder. Trooper was operating his cruiser
at a speed of 65 to 70 miles per hour in a congested area. Trooper
may or may not have had his emergency lights and siren operating,
but in construing the pleadings on a Motion to Dismiss it should be
presumed that the Trooper's lights and siren were not functioning
(Pretrial Order, 6, R94). The Appellant contended the motor vehicle
accident between the two vehicles and the Appellant's resulting injuries,
including in excess of $37,000.00 in medical expenses, were a direct
and proximate result of Trooper's negligence (Plaintiff's Complaint,
6, R5).
III. LITIGATION BACKGROUND
The Appellant brought her lawsuit pursuant to the
Georgia Tort Claims Act, O.C.G.A. § 50-21- 20, et seq. for recovery
of her medical expenses and her injuries sustained when her vehicle
was struck by a vehicle operated by a State Trooper within the course
and scope of the Trooper's employment by the Appellee, the State of
Georgia, Department of Public Safety.
The Appellee filed a motion to dismiss for failure
to state a claim pursuant to O.C.G.A. § 9-11-12 (b)(6) which
was granted by the Trial Court based solely upon the Trial Court's
interpretation of O.C.G.A. § 50-21-24 (6) relating to exemptions
to the waiver of sovereign immunity under the Georgia Tort Claims
Act.
IV. ARGUMENT AND CITATION OF AUTHORITY
A. The Trial Court's interpretation
of the exception O.C.G.A. § 50-21-24 (6), "method of providing
law enforcement," is incorrect.
The Attorney General's Office in Appellee's
Brief wrote on page 17:
Conclusion. The trial court's dismissal of Plaintiff's
claims based on O.C.G.A. § 50-21-24 (6), the "method of
providing law enforcement exception" to the State's waiver
of sovereign immunity was correct and should be affirmed.
When the General Assembly wrote the Georgia Tort Claims
Act it defined certain terms as used in the Act. It defined the terms
of loss, occurrence, person and state. No where did it define the term
"method".
The Georgia Supreme Court in the case of Risser
vs. City of Thomasville, et al. 248 Ga. 866 (1982) gave us helpful
guidance in our case. In the Risser case, the Georgia Supreme Court
used a dictionary to define a word whose meaning was not defined
in the law.
Random House Webster's College Dictionary of the English
Language defines "method" as, "a procedure, technique,
or planned way of doing something". It further explains that
"method implies a fixed procedure usually following a logical
and systematic plan."
An example of a "method" of providing
law enforcement is the procedure used by the Georgia State Crime Lab
in analyzing blood samples to detect illegal drugs or alcohol. In
the event that a citizen suffered a loss because these blood testing
procedures were defective, the State of Georgia would have sovereign
immunity for this law enforcement methodology.
Another method of law enforcement would include
the methodology of categorizing fingerprints for use in criminal investigations.
In the event the fingerprint methodology was defective, the State
of Georgia would have sovereign immunity for thismethodology of law
enforcement.
B. Operating a motor vehicle is
a form of transportation and not a method of providing law enforcement.
Civilians as well as police operate motor vehicles
on the road. Teenagers can operate motor vehicles on the road starting
at the age of 16 in the State of Georgia.
The Georgia General Assembly did intend to exclude
the operation of a motor vehicle in its definition of a method of
law enforcement. Operating a motor vehicle is done by civilians in
everyday life. It is not a methodology that is exclusive to the domain
of law enforcement or policing.
Other forms of transportation in addition to operating
a motor vehicle include walking, jogging, and running.
When a police officer walks on the sidewalks of
the City of Atlanta, Georgia, it would be absurd to label his act
of walking, which is a form of transportation, as a method of law
enforcement. Walking is a form of locomotion to transport the police
officer from Point A to Point B and not a method of law enforcement.
To call walking a method of law enforcement would
offend the ordinary thinking of citizens.
Simply because a State Trooper uses a form of transportation
while in the course of his employment does not mean that this form
of transportation is a method of law enforcement.
C. If the Georgia General Assembly
had intended the operation of motor vehicles to be one of the twelve
exceptions to the waiver of sovereign immunity, it would have written
such specific language in an exception in O.C.G.A. § 50-21- 24.
The General Assembly in O.C.G.A. § 50-21-24 lists
twelve exceptions to the wavier of sovereign immunity. If the General
Assembly had intended for law enforcement officers to have blanket
sovereign immunity when operating motor vehicles, the General Assembly
would have written exception number 13 to read: "The State shall
have no liability for losses resulting from:... (13) The operation
of a motor vehicle by law enforcement or police."
The fact is the Georgia General Assembly intended
to waive sovereign immunity for the operation of motor vehicles.
The Georgia Civil Justice Foundation financed a
study of tort lawsuits in the State of Georgia. Four counties were
selected in the State of Georgia that represented a cross section
of urban, suburban, and rural Georgia. The study was a detailed examination
of court records to offer a fact based profile of tort litigation
in Georgia.
The Georgia Civil Justice Foundation research report
was conducted by Professor Thomas A. Eaton, J.D. of the University
of Georgia Law School and Susette Talarico, Ph.D. of the University
of Georgia. They wrote an article in the Georgia Law Review, volume
30, number 3, Spring 1996. In that article it stated that 69% of tort
litigation in the Georgia study involved motor vehicle accidents.
Ga. L. Rev. volume 30, number 3, Spring 1996, page 652. In other words,
the vast majority of tort cases are the result of motor vehicle accidents,
not medical malpractice or product liability.
If the General Assembly intended to provide blanket
sovereign immunity for this most common type of tort, it would have
done so explicitly.
The case of Hinton vs. State of Georgia , 24 Ga.
App. 49 (1996) is helpful in our case. The Georgia Court of Appeals
in Hinton wrote:
If the General Assembly intended to require the
State to plead essential facts, it simply could have stated, ...
that the State is required to set forth 'all essential facts supporting
each assertion.' In the absence of such express requirement, we
conclude that O.C.G.A. § 16-13-49 (d)(1) does not require the
state to plead essential facts... (My underlining for emphasis)
In our case the General Assembly did
not specifically list an exception for law enforcement when operating
motor vehicles. No such exception to sovereign immunity should be grafted
into the law.
If the Georgia General Assembly had intended to include
such a broad and sweeping exception it would have done so. Neither was
there any exception for operating a motor vehicle while in pursuit of
an alleged criminal. No such specific exception to sovereign immunity
was specifically stated as one of the twelve exceptions.
D. Granting sovereign immunity to the operation
of motor vehicles under this exception will gut the Georgia Tort
Claims Act.
The Attorney General's Office wants
this Court to interpret the exception language so broadly as to make
the exception swallow the rule.
The decision of a State Trooper to take a left turn
from a major highway to a side road should not be considered a method
of law enforcement. The State Trooper's decision to go 65 miles per
hour, rather than 55 miles per hour, is not a method of law enforcement.
The State Trooper's decision to apply his brake to reduce his speed
from 65 miles per hour to 45 miles per hour is not a method of providing
law enforcement.
Those activities described above are simply the acts
of a driver of a car. In our case a motor vehicle owned by the State
of Georgia.
If this Court allows "method" to include
any act or motion that State Troopers do while on duty, whether it is
walking, running, jogging, talking, looking, riding a bicycle, driving
a car, then State Troopers will have blanket immunity for any activity
they do while on duty.
The Georgia General Assembly did not intend to prevent
its citizens from receiving justice when they are the victims of motor
vehicle accidents caused by State Government employees.
E. Since "operating a
motor vehicle" was omitted from the language of the 12 exceptions
to the waiver of sovereign immunity, the General Assembly intended
for it to be excluded.
The Georgia Supreme Court case of Morton vs. Bell,
et al., 264 Ga. 832 (1995) is helpful in our case. In that case the
issue was the definition of "equipment". The Georgia Supreme
Court used the Venerable Principle of Statutory Construction "expressum
facit cessare tacitum", which means that, "if some things
(of many) are expressly mentioned, the inference is stronger that
those omitted are intended to be excluded, than if none at all had
been mentioned." Morton at page 104.
This rule of statutory construction applies in our
case. The Georgia General Assembly could have written an additional
thirteenth exception to the waiver of sovereign immunity. This thirteenth
exception could have specifically stated "the operation of motor
vehicles by law enforcement".
No such specific thirteenth exception covering the
operation of motor vehicles by law enforcement exists.
It was not the intention, nor the desire of the
General Assembly to leave its citizens without recourse when they
are injured by negligent operators of motor vehicles owned by the
State of Georgia.
F. The policy of the State of
Georgia as enunciated in the Georgia Tort Claims Act does not support
the ruling of the Trial Court.
The Georgia Tort Claims Act is an expression of the
public policy by the Georgia General Assembly contrary to the ruling
of the trial court.
O.C.G.A. § 50-21-21 reads in part:
The General Assembly recognizes the inherently unfair
and inequitable results which occur in the strict application of
the traditional doctrine of sovereign immunity.
This clear expression of a legislative intent is
totally contrary to a wholesale broad exemption of any particular
class of State employees solely upon the doctrine of sovereign immunity.
The General Assembly did not mean to create a loophole by which State
Troopers could escape accountability for operating motor vehicles.
The Georgia Constitution, Article I, Section 1,
Paragraph 2 states in pertinent part:
Protection to person and property is the paramount
duty of government and shall be impartial and complete. No person
shall be denied equal protection of a loss. (My underlining for
emphasis)
Protection of persons and property is more important
than catching a speed violator. Appellant's person and property were
injured in this case. The State of Georgia has a paramount duty to
protect her person and her property. One way of protecting the persons
and property is to hold negligent operators of motor vehicles accountable
when they damage others.
An interpretation of the Georgia Tort Claims Act
that would eliminate tort responsibility laws for the operating of
State vehicles would deny citizens their constitutional right of protection
of persons and property.
G. Unfair double standard for
financial accountability in the operating of motor vehicles.
In the State of Georgia private citizens and private
corporations are financially accountable when they are negligent and
their negligence causes injuries to others when operating motor vehicles
on the roads. This is a basic concept of responsibility.
When the State Government puts motor vehicles on
the road in the form of cars, trucks, and buses, it is an unfair standard
to have state owned vehicles exempt from accountability, whereas private
citizens and private corporations are financially accountable for
their torts.
Private citizens lose respect for the government
when the government enforces laws that exempt the government, but
apply to private citizens.
H. Sovereign immunity for operating motor
vehicles by the State would perpetuate an injustice and is counter
intuitive to any ordinary person's sense of justice.
The Supreme Court of North Dakota in the case of Bulman
vs. Hulstrand Construction Co., Inc. and the State of North Dakota,
et al., 521 N.W. 2d, 632 (1994) wrote an excellent commentary on sovereign
immunity in modern America. In that case the Plaintiff's husband was
killed in an automobile accident at a road construction site in North
Dakota. Plaintiff sued the State and Hulstand Construction Company.
The Plaintiff asserted that sovereign immunity for tort actions against
the state should be judicially abolished. The State responded that
Article I, paragraph 9 of the North Dakota Constitution authorizes
only the legislature to modify or waive the State's sovereign immunity
and, because the Legislature had not done so for torts, the District
Court granted summary judgment dismissal of Bulman's action.
The Supreme Court of North Dakota in Bulman wrote
at page 638:
Historically, the doctrine of sovereign immunity
had been justified on the grounds that the king could do no wrong,
the diversion of funds required for other governmental purposes
could bankrupt the state and retard its growth, the State could
perform its duties more efficiently and effectively if it were not
faced with the threat of a floodgate of action involving tort liability,
and it was more expedient for an individual to suffer than for society
to be inconvenienced. ... Whatever justifications initially existed
for sovereign immunity, they are not longer valid in today's society.
Few principles of modern law have been so uniformly and soundly
criticized. ... Sovereign immunity from tort liability..., perpetuates
injustice by barring recovery for tortious conduct merely because
of the status of the wrongdoer. Sovereign immunity contradicts the
essence of tort law that liability follows negligence and that individuals
and corporations are responsible for the negligence of their agents
and employees acting in the course of their employment. We do not
believe that it requires laborious analysis to assert that the harshness
and inequity of the doctrine of sovereign immunity are counter intuitive
to any ordinary person's sense of justice. It is sufficient to comment
that, even under the earliest common law of England, sovereign immunity
did not produce the harsh results it does today and only rarely
did it completely deny relief. We are aware of no persuasive public
policy reasons to continue a constitutional interpretation that
condones an absolute bar to tort liability. (My underlining for
emphasis)
The North Dakota Supreme Court in Bulman wrote at
page 639 that:
We conclude that the State's sovereign immunity
for tort liability is outdated and is no longer warranted. We expressly
overrule our prior cases sustaining that obsolete doctrine, and
we join those states that have judicially abolished it. (See Stone
vs. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963);
Muskopf vs. Corning Hospital District, 55 Cal.2d 211,11 Cal.Rptr.
89, 359 P.2d 457 (1961); Evans vs. Board of County Commissioners,
174 Col. 97, 482 P.2d 968 (1971); Smith vs. State, 93 Idaho 795,
473 P.2d 937 (1970); Molitor vs. Kaneland Community Unit District
No.302, 18 Ill.2d 11,163 N.E.2d 89 (1959), cert. denied, 362 U.S.
968, 80 S.Ct. 955, 4 L.Ed.2d 900 (1960); Perkins vs. State, 252
Ind. 549, 251 N.E.2d 30 (1969); Board of Commissioners of Port of
New Orleans vs. Splendour S. & E. Co., 273 So.2d 19 (La.1973);
Nieting vs. Blondell, 306 Minn. 122, 235 N.W.2d 597 (1975); Pruett
vs. City of Rosedale, 421 So.2d 1046 (Miss.1982); Jones vs. State
Highway Commission, 557 S.W.2d 225 (Mo.1977); Willis vs. Department
of Conservation & Economic Development, 55 N.J. 534, 264 A.2d
34 (1970); Hicks vs. State, 88 N.M. 588, 544 P.2d 1153 (1975); Vanderpool
vs. State, 672 P.2d 1153 (Okla.1983); Mayle vs. Pennsylvania Department
of Highways, 479 Pa. 384, 388 A.2d 709 (1978); McCall v. Batson,
285 S.C. 243, 329 S.E.2d 741(1985).)
The North Dakota Supreme Court's decision is persuasive
legal authority for the proposition that sovereign immunity perpetuates
injustice by barring recovery for tortious conduct merely because
of the status of the wrongdoer. Few principles of modern laws have
been so uniformly and soundly criticized. Georgia law should be construed
to give citizens justice under tort law.
V. CONCLUSION
Operating a motor vehicle by a State Trooper on
the roads of Georgia is not the type of method of law enforcement
that the Georgia General Assembly intended or that the Judiciary of
Georgia should permit to have the shield of sovereign immunity. To
grant the State immunity in operating motor vehicles would do a great
injustice to the citizens who must share the roads of Georgia with
motor vehicles driven by State employees.
The Trial Court's interpretation of the Georgia
Tort Claims Act exception is contrary to the public policy of this
State and should be reversed and the case remanded to the trial court
to be decided on the merits of tort law that apply to all citizens.
This ___ day of _________________, 1998.
Respectfully submitted:
/s/ MATTHEW C. FLOURNOY
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