IN THE SUPREME COURT
STATE OF GEORGIA
PARTHENIA JOHNSON v. GEORGIA DEPARTMENT OF HUMAN RESOURCES, et al.
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.

LEGAL ARGUMENT

I. SUMMARY OF ARGUMENT

Under the Court of Appeals’ sovereign immunity decision, the State of Georgia now has managed to shirk any and all responsibility in tort for breach of its nondelegable duty to protect minor wards in State custody. It has done so by the simple device of "privatizing" custodial services. For all practical purposes, the Court of Appeals accepted DHR’s and DJJ’s characterizations of themselves as mere "placement agencies." (Court of Appeals Reply Brief at 9) (emphasis in the original).

The State is not entitled to claim immunity for the negligence of state-supervised providers of foster care when the Tort Claims Act ensures coverage for both state employees and foster parents having custody of children. The Court of Appeals decision permits the State to conduct an "end run" around the clear intent of the Tort Claims Act to protect children in the state custody by contracting with private agencies to perform a nondelegable state function. Accordingly, this Court should reverse.

II. ROBERT CONTRERA ACTED AS AN "EMPLOYEE" OF THE STATE

A. Contrera Was an Employee for Georgia Tort Claims Act Purposes.

In its brief, the State makes explicit an unfounded assumption which underlies both its argument and the Court of Appeals’ decision. (Appellee’s Brief at 13) The State expressly defines the word "employee" in the sovereign immunity waiver statute by the very different formula, "payroll employee." Georgia law has never defined employees as those on a payroll, nor required payroll status to create responsibility for the torts of employees.

In defining Tort Claims Act terms such as "employee," this Court looks to the general law of Georgia. Edwards v. Department of Children & Youth Servs., 271 Ga. 890, 891 (2000). For purposes of tort liability, "employees" in Georgia are not limited to those entitled employees, nor to those on the employer’s payroll. "Employees" sometimes include those whom the parties have chosen to label as "independent contractors." "In determining whether an employer-employee or independent contractor relationship existed, ‘the test to be applied ... lies in whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.’" Denis v. Malt, 196 Ga.App. 263, 265 (1990), quoting from Zurich Gen. Accid. etc. Ins. Co. v. Lee, 36 Ga.App. 248(1) (1926).

As recently as 1997, the Court of Appeals correctly looked to the control test and determined that a nominal independent contractor was a state employee, making the State liable under the GTCA. Williams v. Department of Corrections, 224 Ga.App. 571 (1997). ""[S]pecific, expansive regulations raise an issue ... as to whether or not the Department controlled the ‘time, manner, or method’ of inmate safety, security, work requirements, and supervision, or whether Harris was, in fact an independent contractor of the state." Id. at 574. The Court of Appeals erred most obviously in this case by overruling its own decision in Williams and rejecting the classic definition of "employee."

Although this Court need not resolve the factual issue whether the State exercised control over time, place and manner here, this record is quite sufficient to support this Court’s review of the legal question posed. First, Contrera and Broken Shackle were not free to choose the place of performing their obligations to Bryan Jones and other state wards. The State’s master contract with Broken Shackle provided for residential services specifically at the Ranch. (P1727, ¶ 1) Nor were Contrera and Broken Shackle free to decide when they would provide services to minors in state custody. Their commitment was to provide care 24 hours a day, 7 days every week. They required "prior approval from the Department for the youth to spend any nights away from the" Ranch. (Id., ¶ 7) Finally, the State also reserved the right to control the manner of Contrera and Broken Shackle’s performance. They "accept[ed] the general supervision and control of the Department over the welfare of the youth placed by the department." (Id., ¶ 4)

The individual treatment agreements for Bryan Jones were even more specific in imposing oversight of Contrera and Broken Shackle’s performance. According to Bryan’s "Institutional Placement Agreement," the State was "[t]o be involved in the assessment of the child’s progress and the need for change in the plan of care as often as is needed." (Exh. P29, ¶ 10) Pursuant to his "Specialized Residential Services Agreement," the providers agreed "[t]o make no independent plans for the youth, without first consulting the designated representative of the Department; including purchasing clothing, providing medical care, etc., except in emergencies." (Exh. P30 (P1723), ¶ 3)

The State has argued that it is not a statutory employer because in practice it has not exercised this right to significant oversight over Broken Shackle and other private homes for State wards. But where the employer has the right to intervene, such neglect of its control rights is irrelevant. "[T]he important consideration is not whether the employer exercised control over the time and manner of executing the work but whether the employer retained the right to do so." Hodges v. Doctors Hosp., 141 Ga.App. 649, 651 (1977) (citation omitted).

In short, the facts of record amply support the trial court’s decision that the State retained control over the time, place and manner of performance; therefore the trial court was authorized to find that the State was Contrera’s "employer" for purposes of the GTCA.

B. The State’s Search for Some Other Definition of Employee Is Misguided.

The State’s brief spills much ink in exploring whether the remainder of the GTCA definition of "state officer or employee" is exclusive, and whether some other coverage exists in the statute for Contrera. This search is simply irrelevant. Contrera need not be a state officer too. Because he was under the control of the State department, he was a covered employee, pure and simple.

C. The Court of Appeals Erred in Requiring a Statutory "Exception."

The Court of Appeals held that Contrera could not be an employee because he was hired by an independent contractor of the state; and because the GTCA does not incorporate the statutory exceptions in O.C.G.A. § 51-2-5 which make principals liable for the torts of their independent contractors. But no "exception" was required.

Most obviously, no resort to O.C.G.A. § 51-2-5 is required. Quite simply, Georgia law makes employers responsible for the torts of employees ("servants") like Contrera, without regard to any separate exception. "Every person shall be liable for torts committed by ... his servant." O.C.G.A. § 51-2-2. Similarly, O.C.G.A. § 51-2-4 defines employees by deduction. Independent contractors (as contrasted to employees) are those not subject to the employer’s control: "An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer."

Thus the control test defines employees and distinguishes employees from independent contractors. If the control test is satisfied, the performing party is "a servant and not an independent contractor," by definition. Swift & Co. v. Alston, 48 Ga.App. 649, 650 (1933); see also Williams v. Department of Corrections, 224 Ga.App. at 574; Sparlin Chiropractic Clinic v., P.C. v. TOPS Personnel Services, Inc., 193 Ga.App. 181, 182 (1989); Federated Mut. Ins. Co. v. Elliott, 88 Ga.App. 266(2) (1953); Fidelity & Cas. Co. of New York v. Clements, 53 Ga.App. 622(1) (1936); Whitehall Chevrolet Co. v. Anderson, 53 Ga.App. 406(1) (1936); Yearwood v. Peabody, 45 Ga.App. 451(2) (1932); Cooper v. Dixie Constr. Co., 45 Ga.App. 420(1) (1932).

The control test is not an exception to independent contractor status. An employee is the antithesis of an independent contractor. The Legislature did not need to except employees from independent contractors. It engaged in overkill when it added in O.C.G.A. § 51-2-5(5) that employees should not be treated as independent contractors. They are not independent contractors in the first place. The Court of Appeals erred in requiring any sort of statutory exception. The time-honored control test defines Contrera as an "employee."

D. The 1994 Deletion of the Word "Agent" Is of No Consequence.

The Court of Appeals erroneously held, and the State continues to argue, that Plaintiff’s claim is foreclosed by a 1994 amendment to O.C.G.A. § 50-12-22(7), which removed the word "agent" as one category creating State liability.

This change does not affect the state’s responsibility for acts of employees, which remain covered by the GTCA. As Williams v. Department of Corrections makes clear, agency (by statutory exception to independent contractor status) was a separate issue from employee status under the former statute. 224 Ga.App. at 574-75. Whatever the nuances of the word "agent," those complexities are simply irrelevant to the current statute. Because Contrera was a state employee, he fills the bill for GTCA coverage.

The State, however, seems to go even farther in its argument to this Court. Its brief (at 12) seems to argue that deletion of the word "agent" from the statute was more than a deletion. The State seems to argue that the General Assembly created a brand new exclusion from the GTCA, so that no agent, and specifically no "servant," may attach liability to the State.

The argument proves entirely too much. As any law school Agency text tells us, servants and employees are species of agent. If the State’s argument were to prevail, the State would always have sovereign immunity and would never be liable, because the very same "employees" covered by the Act would be excluded as "agents"!

E. The Corporate Exception Does Not Affect this Case.

An exception in O.C.G.A. § 50-12-22(7) provides that "the term [employee] shall not include a corporation." That exclusion too has no effect on this case. Plaintiff does not seek to attach liability to the State for the actions of the corporation, Broken Shackle. Nor does she seek to attach liability upon the State third hand, based upon Broken Shackle’s respondeat superior responsibility for Contrera’s actions. She seeks no such potentially-expansive derivative liability. Instead, the State is liable directly for the acts of Contrera, its individual employee.

Georgia law is well settled that an individual who is subject to job control is an employee, even if he or she is hired and supervised by a separate corporation. Savannah Elec. & Power Co. v. Edenfield, 118 Ga.App. 531 (1968). Edenfield "was in the employment of Stone & Webster Engineering Corporation." Id. at 532. Nevertheless, the utility "clearly had the right to control the time, manner and method of the work which was to be performed by Stone & Webster." Id. at 533. Thus the court found that Edenfield was an employee of Savannah Electric and Power. Id. at 534.

In short, the statutory exclusion of liability for the acts of corporations is simply irrelevant. Contrera, who injured Bryan, is not a corporation. The State is liable because Contrera was under State control, even though he was on the payroll of a separate corporation. Id.

The State charges that this reading of the GTCA "does not make any sense and would render the corporate exclusion meaningless." It does no such thing. Except in one narrow circumstance – precisely that presented in this case – the State would not be responsible for corporate wrongdoing, nor for any act of an employee on a corporate payroll. The only time the State is liable is when the employee of the corporation is also an employee of the State.

In sum, the Court of Appeals erred in holding that Contrera was not an employee of the State for purposes of the Georgia Tort Claims Act.

III. CONTRERA ALSO MEETS THE DEFINITION OF ‘FOSTER PARENTS’ COVERED BY THE TORT CLAIMS ACT

Under O.C.G.A. §50-21-22(7), the Tort Claims Act includes "foster parents and foster children" in the definition of covered state employees:

An employee shall also include foster parents and foster children. The term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association or other such private entity.
O.C.G.A. §50-21-22(7). Nothing in that definition excludes individual foster parents, even if they are employed by private contractors which are themselves not covered. Since it is the clear stated purpose of the Act to provide coverage for "foster parents" – thereby granting an economic incentive for private citizens to provide foster care – it would be inconsistent with that purpose to provide coverage for foster care providers who keep children in their homes, but not to provide coverage for foster care providers who work in state-supervised private institutions. If anything, it would make more sense to exclude coverage for individual foster parents over which the state has no direct control, but the statutory definition recognizes no distinction with regard to coverage of those individuals who qualify as "foster parents".

While the term "foster parents" is not defined in the Tort Claims Act, it is defined in the regulations of the very state agency which is the defendant in the case at bar. According to the Rules and Regulations for Child Caring Institutions, Chapter 290-2-5.03(m), the term "‘foster parent’ means an adult person approved by the institution who provides care, lodging, supervision, and maintenance on a 24 hour basis for a child who must receive care outside of his home." (T519) This definition is not limited to those who house foster children in their own homes and is broad enough to cover any person, including an employee of a private institutional facility, who provides foster care. Moreover, the State’s own regulations define ‘foster care’ as "supervised care in a substitute home or a child caring institution on a 24 hour full-time basis for a temporary period of time." Rules and Regulations for Child Caring Institutions, Chapter 290-2-5.03(k) (emphasis added); (T518-19). While the regulations do define ‘foster home’ as a private residence housing less than six (6) unrelated children, the Tort Claims Act covers "foster parents" – not the owners or operators of foster homes per se. O.C.G.A. §50-21-22(7) (T519)

If the Legislature had intended to discriminate between foster homes specifically and foster parents in general, it could have done so; in the absence of such intent, the State’s own regulations concede that the definition of foster parent includes any person in any setting who provides foster care to a child placed by the State. Accordingly, the Court of Appeals should not have superimposed its own definition over the definitions established by both the General Assembly and the very State agency which is the defendant in this action. In addition to rewriting the Tort Claims Act in contravention of the declared intent of both the Legislative and Executive branches, the Court of Appeals decision has the effect of withholding legal protection from the thousands of foster children in the custody of state contractors which have previously looked to the State for insurance coverage. This cannot stand.

Respectfully submitted by the Georgia Trial Lawyers Association on this the 8th day of June, 2004.

/s/ DAVID A. WEBSTER

/s/ CRAIG T. JONES