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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