In the case below, the trial court ruled that the Plaintiff must comply with the Georgia Torts Claims Act in its pleadings. The Order dismissed the Plaintiff's case in its entirety on the ground that the Plaintiff failed to allege facts sufficient to establish that the "plan or design exception" to the waiver of immunity under the Georgia Tort Claims Act does not apply. Specifically, the trial court required the Plaintiff to demonstrate that the DOT prepared the original plan or design for the subject intersection and that such plan was not in compliance with generally accepted engineering or design standards in effect at the time of the preparation of the plan or design at issue. The Order further required the Plaintiff to establish the time the plans and designs were prepared in order to avoid dismissal.

The trial court's decision is contrary to established Georgia law in several respects. First, requiring the Plaintiff to affirmatively plead in her expert affidavit circumstances demonstrating that an exception to the waiver of sovereign immunity is not applicable does not comport with the purpose of section 9-11-9.1. As addressed, section 9-11-9.1 imposes a minimal requirement on a plaintiff and is designed to eliminate frivolous lawsuits. A section 9-11-9.1 affidavit should be construed most favorable to the plaintiff and, even when an unfavorable construction is possible, doubts should be resolved in the plaintiff's favor so long as such construction does not detract from the purpose of section 9-11-9.1. Hutchinson v. Divorce & Custody Law Center of Arline Kerman & Assoc., P.C., 215 Ga. App. 25, (1994). In the instant case, the trial court required the Plaintiff to plead inter alia that the DOT prepared the original plan or design for the intersection as well as the date on which the DOT prepared the plan design. Plainly, these facts do not advance any legislative goal of avoiding groundless lawsuits. Moreover, it is not even possible for the Plaintiff to properly allege these facts without the opportunity to engage in discovery.

The decision of the trial court in requiring the Plaintiff to demonstrate that the "design and plan exception" to the waiver of sovereign immunity does not exist impermissibly imposes an evidentiary burden on the Plaintiff at the pleading stage. "Unlike O.C.G.A. 9-11-56, which imposes an evidentiary requirement in the context of summary judgment on the merits, O.C.G.A. 9-11-9.1 merely imposes an initial pleading requirement on the Plaintiff in a malpractice action." Bowen v. Adams, 203 Ga. App. 123 (1992). An expert affidavit that would be insufficient to satisfy the evidentiary standards of O.C.G.A. 9-11-56 may nevertheless be sufficient to satisfy the pleading standards of O.C.G.A 9-11-9.1. Id. The evidentiary merits of a suit are properly contested in a motion for summary judgment.

Furthermore, contrary to the position of the Defendant DOT and the trial court, the Georgia Tort Claims Act does not require the Plaintiff to establish that an exception to the waiver of sovereign immunity does not exist. Defendant DOT argues that, in addition alleging at least one negligent act or omission on behalf of Defendant DOT that proximately injured the Plaintiff, the Plaintiff's pleadings must also demonstrate that the "design or plan" exception to the broad waiver of immunity is not applicable. However, none of the cases cited by Defendant DOT stand for the proposition that a plaintiff must allege facts demonstrating that an exception to the waiver of sovereign immunity is not applicable. The Plaintiff simply does not have the burden of disproving the various exceptions to the wavier of sovereign immunity at the pleading stage. Requiring the Plaintiff to anticipate which exceptions the Defendant DOT might rely upon and then affirmatively disprove them in her pleadings is not practical, logical, or necessary under any interpretation of the GTCA.

Even assuming that the rules concerning the burden of proof and burden of going forward do give the Plaintiff the burden of disproving the applicability of exceptions to the waiver of sovereign immunity, the Plaintiff's burden would be a "burden of proof" for which discovery would be essential in order to prevail. The State may not require a plaintiff to disprove exceptions to the waiver of sovereign immunity, and then remove the only procedural device (i.e., discovery) available to a plaintiff in order to satisfy such a burden. At a minimum, the court must recognize that whether an exception to the waiver of sovereign immunity applies in a factual situation is a issue of law that should be addressed at trial or by summary judgment, after the facts have been fully disproved.

Affording discovery prior to the determination of whether an exception to the waiver of sovereign immunity is applicable is particularly important in cases brought under the GTCA because the State is the only entity that has possession and control of all pertinent facts necessary to establish such an exception. In the present case, Defendant DOT is the only party in control of the plans and designs for the original intersection and passing lane project which is the subject of this lawsuit. Similarly, the date the subject intersection plans and designs were prepared is known exclusively by Defendant DOT. The rules of pleading and the Georgia Tort Claims Act do not require the Plaintiff to plead such facts when such facts cannot possibly be known without discovery. Instead, Defendant DOT's claim of sovereign immunity to the Plaintiff's lawsuit is properly considered at a motion for summary judgment at which Plaintiff can present requisite proofs. Without an opportunity to discover requisite proofs, many future tort litigants will face an insurmountable obstacle in pursuing their claims under the Georgia Tort Claims Act.