DEPARTMENT OF HUMAN RESOURCES v. COLEY et al., 247 Ga. App. 392

Ruffin, Judge. While a patient at Central State Hospital, an institution operated by the Georgia Department of Human Resources (DHR), Ronnie Dudley was allegedly strangled to death by another patient, Richard Hailey. Dudley’s sister, Patricia Coley, individually and as executrix of her brother’s estate, sued DHR, claiming that it violated a duty to protect Dudley from harm. In particular, Coley alleged that DHR negligently placed Dudley in a room with Hailey, who had made threats to kill someone in order to be transferred to a different building for the criminally insane.

DHR filed a motion to dismiss, arguing that Coley’s claims were barred by sovereign immunity. Specifically, DHR asserted that such claims were barred by OCGA § 50-21-24 (7), which provides that “[t]he state shall have no liability for losses resulting from . . . [a]ssault, battery,” or certain other enumerated torts. The trial court denied the motion to dismiss. We granted DHR’s application for interlocutory appeal, and reverse the trial court’s ruling. 1. The starting point for any consideration of sovereign immunity is, of course, the Georgia Constitution. Art. I, Sec. II, Par. IX (

e) of the Constitution states that [e]xcept as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by

an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. Thus, as a matter of constitutional law, with respect to tort claims, the state and its departments and agencies are entitled to sovereign immunity unless such immunity is specifically waived by a statute setting forth the extent of the waiver. The state’s waiver of sovereign immunity for tort claims is set forth in the Georgia Tort Claims Act (GTCA), OCGA § 50-21-20 et seq., which states that it “constitutes the exclusive remedy for any tort committed by a state officer or employee.” OCGA § 50-21-23 (

a) provides that [t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article. Many of these “exceptions and limitations” are set forth in OCGA § 50-21-24, which lists numerous circumstances in which the state does not waive sovereign immunity.

The exception relevant in this case is contained in subsection (7), which provides that “[t]he state shall have no liability for losses resulting from . . . [a]ssault, battery,” or other enumerated torts. Thus, where a loss results from assault or battery, there is no waiver of sovereign immunity, even though “a private individual or entity would be liable under like circumstances.” We have uniformly held that OCGA § 50-21-24 (7) applies not merely when a state officer or employee commits one of the enumerated torts, but whenever the underlying loss results from such tort. In Dept. of Human Resources v.

Hutchinson , we noted that “Moss” is extensively defined in OCGA § 50-21-22 (3) and includes “any . . . element of actual damages recoverable in actions for negligence.” The focus of the exceptions to liability in OCGA § 50-21-24 (7) is not on the government action taJken, but upon the act that produces the loss. We noted that other subsections of OCGA § 50-21-24 specifically limited their application to acts taken by “a state officer or employee,” while subsection (7) contained no such limitation.

Thus, we held that “the exception to the waiver of immunity covers any and all losses resulting from the torts enumerated in OCGA § 50-21-24 (7), regardless of who committed them.” Applying this rule to the facts in that case, we held that the state was entitled to sovereign immunity where a juvenile delinquent, who had been committed to the custody of the DHR, shot the operator of a contract home where the Department had placed him. The holding in Hutchinson was subsequently reaffirmed in Ga. Military College v.

Santamorena, In that case, a student at Georgia Military College, a state institution, was raped by a fellow student on school premises. The victim’s mother sued the college for negligence, alleging that it failed to take proper actions to ensure her daughter’s safety.

Although the plaintiff couched her action as a claim for breach of the college’s independent duty to protect the victim, we relied on Hutchinson for the proposition that “we do not look at the duty allegedly breached by the government, but focus on the act causing the plaintiff’s loss.” Because the victim’s loss resulted from the commission of a tort enumerated in subsection (7), the state was entitled to sovereign immunity.

In determining whether the exception set forth in OCGA § 50-21-24 (7) applies, therefore, the focus is not on “the government action taken” or “the duty allegedly breached by the government,” but on the act causing the underlying loss, and it is not necessary that such act have been committed by a state officer or employee. In this case, it is apparent that the act allegedly causing the underlying loss — i.e., the strangulation of Dudley — constitutes an assault or battery within the meaning of the exception.

Accordingly, the exception to the waiver of sovereign immunity applies, and the trial court erred in denying DHR’s motion to dismiss. 2. In his dissent, Presiding Judge Pope argues that Hutchinson and Santamorena were wrongly decided and should be overruled.

In essence, the dissent asserts that (1) the assault and battery exception applies only where the state is being sued for the specific tort of assault or battery, and not where it is being sued under a different legal theory; and (2) the exception applies only if the assault or battery is committed by a state officer or employee acting in the scope of his employment.

Under the dissent’s reasoning, therefore, the assault and battery exception would provide protection only in one narrow instance, i.e., when the plaintiff seeks to hold the state liable under the doctrine of respondeat superior for an assault or battery committed by one of its officers or employees in the course of his employment. If the state is sued under a different theory, based on the independent negligence of a state officer or employee, the assault and battery exception would provide no protection. For the reasons discussed below, this approach is incorrect.

The dissent’s analysis is based almost entirely on analogy to the Federal Tort Claims Act (FTCA). The dissent asserts that (1) the GTCA was “in most respects” patterned after the FTCA; (2) the FTCA has an assault and battery exception, which has been interpreted by the United States Supreme Court as applying only when the assault or battery is committed by a federal employee acting within the scope of his official duties; (3) the Georgia legislature was aware of this

interpretation of the FTCA at the time it adopted the GTCA; and (4) therefore, the Georgia legislature must “necessarily” have intended for the GTCA’s assault and battery exception to be interpreted in the same manner. This analysis is fundamentally flawed because its underlying premise — that the GTCA is simply a “clone” of the FTCA — is incorrect. As we noted in Santamorena, the federal assault and battery exception is quite different from the Georgia exception. The federal statute states that “[t]he provisions of this

chapter [waiving sovereign immunity] shall not apply to . . . [a]ny claim arising out of assault [or] battery.” The Georgia statute, by contrast, provides that “[t]he state shall have no liability for losses resulting from . . . [a]ssault [or] battery.” The differences between the two statutes are thus clear: (1) the federal statute focuses on the claim being asserted by the plaintiff, while the Georgia statute focuses on the loss suffered by the plaintiff; and (2) the federal statute limits the extent of the waiver of sovereign immunity, while the Georgia statute affirmatively provides that the state “shall have no liability” for losses resulting from certain acts.

Notwithstanding these differences, the dissent argues that Georgia’s assault and battery exception should be given precisely the same

interpretation as the federal exception, under the theory that the legislature was aware of the federal statute and case law interpreting it when it adopted the GTCA. We believe, however, that the approach should be exactly the opposite: If the legislature “mostly” patterned the Georgia statute after the federal statute, any decision to depart from the federal language must have been made for a reason.

The question thus becomes, “Why did the legislature elect to make the state statute different from the federal statute?” The answer cannot be, as the dissent would suggest, “Because it wanted the meaning to be identical.” It is thus necessary to look at the Georgia language on its own terms, and not simply to defer to federal cases construing a substantially different statute.

As discussed above, the Georgia statute provides that the state “shall have no liability for losses resulting from . . . [a]ssault [or] battery.” Thus, if a “loss” “results from” an assault or battery, the state “shall have no liability.” The term “loss” is specifically defined in the statute to mean personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.

The dissent argues that, although OCGA § 50-21-24 (7) prevents the state from being sued for the specific torts of assault and battery, the state may nevertheless be liable if the negligence of its officers or employees constitutes a joint proximate cause of the plaintiff’s injury. Thus, for example, under the dissent’s reasoning, the state may be sued for negligently hiring or supervising an employee who commits a battery. This analysis is flawed in that it fails to give meaning to the statutory language. It is true that there may be more than one proximate cause of a plaintiff’s loss.

Regardless of the number of proximate causes, however, the plaintiff sustains only one “loss.” This loss cannot be apportioned among the various proximate causes, with part of the loss attributed to one event and another part attributed to a different event. To treat facts with imagination is one thing, but to imagine facts is quite another. It cannot be disputed that, when a plaintiff is injured by an assault or battery, his loss “results” from such assault or battery, even though there may have been other contributing factors.

And the statute clearly provides that the state shall have no liability for the “loss.” Under the dissent’s reasoning, however, the state may or may not have liability for the loss, depending on the particular legal claim asserted. Because the Georgia statute, unlike the federal statute, speaks of “losses” instead of “claims,” the dissent’s proposed

interpretation is unpersuasive. 3. In his dissent, Judge Mikell asserts that the terms “assault” and “battery,” as used in OCGA § 50-21-24 (7), should be interpreted to mean “simple assault” and “simple battery.” Therefore, according to the dissent, the state should not be immune from tort liability where the acts in question rise to the level of a serious crime. For the reasons discussed below, we disagree. The dissent purports to base its

interpretation upon the rule of construction known as noscitur a sociis — literally, “it is known by its associates.” Under this rule of construction, “the meaning of words or phrases in a statute may be ascertained from others with which they are associated and from which they cannot be separated without impairing or destroying the evident sense they were designed to convey in the connection used.” Unfortunately, however, while purporting to apply this rule, the dissent in fact turns it on its head, reaching a result exactly the opposite of what the rule would require.

As the dissent recognizes, OCGA § 50-21-24 (7) enumerates nine different torts, including assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, and interference with contractual rights. Each of these is recognized as a tort under Georgia law. If a loss results from any of these torts, the state is immune from suit. Under the guise of interpreting these words similarly, however, the dissent would hold that the words “assault” and “battery” mean “simple assault” and “simple battery.” But these are not torts — they are crimes!

Under the dissent’s reasoning, therefore, the terms “assault” and “battery” are to be singled out and treated differently from all the other terms in the statute — they are to be construed as referring to crimes, while the others are to be construed as referring to torts. This is not noscitur a sociis — it is non noscitur a sociis.

The dissent asserts that members of the legislature “would likely be surprised to learn that their list of nine torts has been expanded to include exemptions from liability for aggravated assault, child molestation, rape, and . . . murder.” However, the legislature did not provide the state with immunity for violent crimes, but with immunity for torts — we are, after all, dealing with a Tort Claims Act. And the torts of assault and battery are broad enough to include numerous acts which, if prosecuted criminally, would be characterized as aggravated assault, child molestation, rape, and even murder.

Given that the legislature clearly used the terms “assault” and “battery” in their tort sense, we do not believe it would be surprised to learn that the state is immune from liability for acts that constitute those torts. Nothing we have said goes to the wisdom of refusing to waive sovereign immunity in circumstances such as those in this case. Sovereign immunity is a harsh doctrine, not an equitable one. Indeed, it is just the opposite of equity — it is the state declaring that it cannot be sued even where it would otherwise be liable.

Nevertheless, it is a constitutionally recognized doctrine, and the constitution expressly provides that immunity for tort claims can be waived only by a legislative act specifically providing for such waiver and setting forth the extent thereof. The legislature recognized the harshness of the doctrine in enacting the Tort Claims Act, noting that strict application of the doctrine leads to “inherently unfair and inequitable results.” Nevertheless, while recognizing such inequity, the legislature deliberately chose to reserve sovereign immunity for all losses resulting from assault or battery.

There is no doubt that it had the power to do so, and the language it used is not susceptible to the construction placed on it by either of the dissents. Our job is to read the statute, not to rewrite it to conform to an equitable result. The singleness and sacredness of our purpose are to ascertain errors of law. Accordingly, because the loss in this case unquestionably resulted from an assault or battery, the state has not waived sovereign immunity. Judgment reversed. Johnson, C. J., Andrews, P. J., Blackburn, P. J., Smith, P. J., Miller and Ellington, JJ., concur. Pope, P.

J., Eldridge, Barnes, Phipps and Mikell, JJ., dissent. OCGA § 50-21-25 (a). (Emphasis supplied.) 217 Ga. App. 70, 71-72 (1) (456 SE2d 642) (1995). Id. at 72. See OCGA § 50-21-24 (1) (loss resulting from “act or omission by a state officer or employee exercising due care in the execution of a statute, regulation, rule, or ordinance”), (2) (loss resulting from performance of discretionary duty “on the part of a state officer or employee”). Hutchinson, supra at 71. 237 Ga. App. 58 (514 SE2d 82) (1999). Id. at 61 (1) (a). See Hendricks v. Southern Bell Tel. &c. Co., 193 Ga.

App. 264-265 (1) (387 SE2d 593) (1989) (“Clearly, the act of intentionally causing actual physical harm to another is civilly actionable as a battery,” although intent to harm is not an essential element). Coley’s contention that the “public duty doctrine,” enunciated by the Supreme Court in City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993), creates an exception to the state’s sovereign immunity in this case is without merit. The public duty doctrine does not act as a judicially created exception to the state’s sovereign immunity.

Indeed, because sovereign immunity has constitutional status, it cannot be abrogated by the judiciary. State Bd. of Ed. v. Drury, 263 Ga. 429, 430 (1) (437 SE2d 290) (1993); Dollar v. Dalton Public Schools, 233 Ga. App. 827 (505 SE2d 789) (1998). Rather, the public duty doctrine simply defines the scope of a governmental entity’s duty to provide police protection to individual citizens, Dept. of Transp. v.

Brown, 267 Ga. 6, 8 (3) (471 SE2d 849) (1996), and provides that liability generally can exist only where there is a “special relationship between the injured party and the alleged governmental tortfeasor.” City of Rome, supra at 28 (1). Thus, the doctrine serves to restrict the liability of governmental entities in those situations where sovereign immunity has otherwise been waived or is inapplicable (e.g., where a municipality has purchased liability insurance) — it does not act as an exception to sovereign immunity where such immunity has not been waived.

See id. (“the abrogation or waiver of sovereign immunity in Georgia did not create a duty on the part of a municipality where none existed before”). In any event, the Supreme Court has held that the public duty doctrine is limited to “the provision of police services,” Brown, supra at 8-9, and “does not apply outside the police protection context.” Hamilton v. Cannon, 267 Ga. 655, 656 (1) (482 SE2d 370) (1997). This case does not involve the provision of police services. See Santamorena, supra at 61 (1). Any reference to “the dissent” in this Division refers to Presiding Judge Pope’s dissent.

Any reference to “the dissent” in Division 3 refers to Judge Mikell’s dissent. The dissent quotes from a sentence in a law review

article stating that the GTCA was “[i]n most respects . . . patterned after the FTCA.” Maleski, The 1992 Georgia Tort Claims Act, 9 Ga. St. U. L. Rev. 431, 448 (1993). The next sentence, however, states that “there are some significant differences between the federal statute and the Georgia statute with regard to intentional torts.” Id. The

article does not address the particular difference in language at issue in this case, but does apparently recognize that “in most respects” is not the same as “in all respects.” 28 USC § 2680 (h). OCGA § 50-21-24 (7). OCGA § 50-21-22 (3).

In a footnote, the dissent claims that its analysis does not necessarily lead to this conclusion — i.e., it does “not foreclose the conclusion” that the state would be immune from liability for its independent negligence (such as negligent hiring, supervision, or training), so long as the actual assault or battery is committed by a state officer or employee and not by a third party. This claim is disingenuous, and would render the dissent’s entire analysis internally inconsistent.

The whole basis for the dissent’s argument that the difference in language between the state and federal statutes is irrelevant — i.e., that “losses resulting from” means the same thing as “claim arising out of’ — is its assertion that a “loss” may result from more than one proximate cause. Thus, according to the dissent, the assault and battery exception does not provide immunity for losses resulting from a proximate cause that combines with the assault or battery, since the loss in such case would also result from the independent tort.

As discussed above, the dissent’s joint proximate cause analysis is incorrect, since the plaintiffs entire loss results from an assault or battery even if there are additional proximate causes, and the state is granted immunity for the “loss,” not the “claim.” However, the dissent cannot hang its hat on the fact that there may be multiple proximate causes for a loss, and then ignore that fact when it is inconvenient. Black’s Law Dictionary (7th ed.), p. 1084. (Punctuation omitted.) Burke v. State, 208 Ga. App. 446-447 (1) (430 SE2d 816) (1993). See Hendricks, supra. Ga. Const., Art. I, Sec. II, Par. IX (e).

OCGA § 50-21-21 (a).