Hartley v. Agnes Scott College , 295 Ga. 458 ( 2014 )

In the Supreme Court of Georgia
Decided: June 16, 2014
S13G1152. HARTLEY v. AGNES SCOTT COLLEGE et al.
NAHMIAS, Justice.
We granted certiorari to decide whether a campus police officer employed
by a private college qualifies as a “state officer or employee” who may assert
immunity from tort suits under the Georgia Tort Claims Act (GTCA), OCGA
§§ 50-21-20 to 50-21-37. In Division 1 of Agnes Scott College v. Hartley, 321
Ga. App. 74 (741 SE2d 199) (2013), a three-judge plurality of the Court of
Appeals, joined in judgment only by another judge, examined the definition of
“state officer or employee” in § 50-21-22 (7) and concluded that the defendant
Agnes Scott College police officers were entitled to immunity under the GTCA
and that appellant Amanda Hartley’s tort lawsuit against them should therefore
be dismissed. See Hartley, 321 Ga. App. at 74-80. After considering the GTCA
as a whole, rather than only its definitions section, we disagree, because it is
clear that the Agnes Scott officers were not acting for any state government
entity when they committed the alleged torts. We therefore reverse the
judgment announced in Division 1 of the Court of Appeals’ plurality opinion.
1. (a) This case is here on the denial of a motion to dismiss the
complaint, so we will assume that the following factual allegations of the
complaint are true. In the spring of 2009, Haley Maxwell was a student at
Agnes Scott College in Decatur, Georgia.1 On April 28, Maxwell reported to
Lieutenants Gaetano Antinozzi and Gregory Scott of the college’s Department
of Public Safety that she had been beaten and brutally sexually assaulted in her
dorm room during the early morning hours of April 13 by a University of
Tennessee graduate student named Amanda Hartley. Maxwell also told the
officers that on April 27 – two weeks after the alleged attack in her dorm room
– she went alone to Hartley’s apartment in Knoxville, where Hartley beat her
again.
A reasonable investigation would have revealed that Maxwell’s
accusations against Hartley were demonstrably false. For example, the officers
would have learned that the sign-in logs at Maxwell’s dormitory indicated that
1
It is undisputed that Agnes Scott College is a private corporation.
2
Hartley had never been there; not a single person who lived in the dorm could
confirm that Hartley had ever been there; a substantial number of independent
witnesses could verify that Hartley was actually in Knoxville at the time of the
alleged assault in Decatur; and Hartley is a non-violent person who exhibits the
utmost respect for the rights and personal safety of others. The officers also
would have found evidence disproving Maxwell’s claims that Hartley
“controlled [her] cell phone account” and “had depleted [her] checking
account,” and they would have discovered that the college itself had recently
investigated – and found to be false – Maxwell’s bizarre claims of mistreatment
by personnel at the campus health center.
Instead, on April 30, without investigating the truth or falsity of
Maxwell’s story, Lieutenant Antinozzi obtained warrants for Hartley’s arrest on
charges of aggravated sexual battery, battery, and sexual battery. He then
contacted the Knoxville Police Department to cause Hartley’s arrest and
extradition to Georgia. Hartley was arrested and detained in Tennessee on May
6, extradited to Georgia on May 17, and not released on bond until May 28. On
December 7, 2009, the district attorney dismissed all charges against Hartley
after a reasonable investigation uncovered evidence showing that she was not
3
in Georgia at the time of the alleged assault in Maxwell’s dorm room, making
it apparent that Maxwell’s accusations were wholly fabricated and false.
(b) On April 20, 2011, Hartley filed a tort lawsuit against Agnes
Scott College and three of its campus police officers – Lieutenant Antinozzi,
Lieutenant Scott, and Harry Hope, the director of the college’s Department of
Public Safety – alleging that the three officers were acting within the scope of
their employment by the college at the relevant times. The complaint sought
compensatory and punitive damages based on claims of false arrest, false
imprisonment, and intentional infliction of emotional distress. The officer
defendants answered and filed a motion to dismiss the complaint, arguing that
they were entitled to immunity under the GTCA. On March 20, 2011, the trial
court denied the motion to dismiss.
The Court of Appeals reversed that ruling in a divided whole-court
decision. The disagreement between the three judges who joined the plurality
opinion and the three judges in dissent focused on whether a private campus
police officer exercising law enforcement powers qualifies as a “state officer or
employee” within the meaning of OCGA § 50-21-22 (7), entitling the officer to
assert immunity under the GTCA. The seventh judge concurred in the
4
plurality’s judgment only. We granted certiorari.2
2. (a) Like the competing opinions in the Court of Appeals, the
parties focus their arguments here primarily on whether the Agnes Scott police
officer defendants were entitled to seek immunity under the GTCA. Hartley
contends that they could not be immune because they do not qualify as state
officers or employees as defined in OCGA § 50-21-22 (7), which says in full:
“State officer or employee” means an officer or employee of the
state, elected or appointed officials, law enforcement officers, and
persons acting on behalf or in service of the state in any official
capacity, whether with or without compensation, but the term does
not include an independent contractor doing business with the state.
The term state officer or employee also includes any natural person
who is a member of a board, commission, committee, task force, or
similar body established to perform specific tasks or advisory
functions, with or without compensation, for the state or a state
government entity, and any natural person who is a volunteer
participating as a volunteer, with or without compensation, in a
structured volunteer program organized, controlled, and directed by
2
The college also moved to dismiss the complaint, arguing that private employers are not
vicariously liable for torts committed by their police officer employees when exercising law
enforcement powers not at the direction of the employer. The Court of Appeals plurality, again
joined in judgment only by the seventh judge, concluded in Division 2 of its opinion that the college
was entitled to dismissal, reversing the trial court on this issue too. See Hartley, 321 Ga. App. at 80.
Hartley also sought review of that ruling, but our order granting certiorari did not ask the parties to
address it, the parties did not do so in their briefs, and we express no opinion on it.
Amicus curiae briefs have been filed here by the Georgia Independent College Association,
Emory University, the Georgia Fraternal Order of Police and the Georgia Association of Chiefs of
Police, Inc., and the State of Georgia. We appreciate these contributions to our consideration of this
case.
5
a state government entity for the purposes of carrying out the
functions of the state entity. This shall include any health care
provider and any volunteer when providing services pursuant to
Article 8 of Chapter 8 of Title 31. An employee shall also include
foster parents and foster children. Except as otherwise provided for
in this paragraph, 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.
As the Court of Appeals plurality opinion emphasized, this definition of
a “state officer or employee” expressly includes both “law enforcement officers”
and “persons acting on behalf or in the service of the state in any official
capacity.” To determine if private campus police officers come within those
phrases, the plurality looked to the Campus Policemen Act originally enacted
in 1977. See OCGA §§ 20-8-1 to 20-8-7. That law defines a “campus
policeman” as “an employee of an educational facility whose duties include the
enforcement of the laws of this state; the preservation of public order; the
protection of life and property; the prevention, detection, or investigation of
crime; or any combination thereof.” OCGA § 20-8-1 (2). The statute gives
these officers, when they are on or near campus, “the same law enforcement
powers . . . as a law enforcement officer of the local government with police
jurisdiction over such campus,” so long as the officers are properly certified
6
pursuant to the Georgia Peace Officer Standards and Training Act (POST Act),
OCGA § 35-8-1 et seq., and “the governing body or authority of such
educational facility” has authorized them to exercise law enforcement powers
as part of their jobs, OCGA § 20-8-2. See Hartley, 321 Ga. App. at 76-78
(plurality opinion).
In response, the dissent highlighted the last sentence of § 50-21-22 (7),
which expressly excludes corporations and other private entities, like Agnes
Scott College, from the definition of “state officer or employee,” contending that
employees of such private entities are also excluded. See Hartley, 321 Ga. App.
at 82 (Miller, P.J., dissenting). The plurality replied by noting that the sentence
on which the dissent relied begins, “[e]xcept as otherwise provided for in this
paragraph”; thus, if a campus police officer qualifies as a state officer or
employee under the first sentence of the definitional paragraph, the fact that the
officer is employed by a corporation or a private entity is irrelevant.
If OCGA § 50-21-22 (7) were all we had to go on, we would tend to agree
with the plurality. But when read in the context of the statute of which that
definitional provision is a part, it becomes clear that the Agnes Scott College
police officers at issue are not state officers or employees protected by the
7
GTCA.
(b) OCGA § 50-21-22 (7) does not stand alone. Rather, it is part
of the Georgia Tort Claims Act – an integrated statutory tort claims scheme
whose key components were enacted contemporaneously. See Ga. L. 1992, p.
1883.
When we consider the meaning of a statutory provision, we do not
read it in isolation, but rather, we read it in the context of the other
statutory provisions of which it is a part. “[A]ll statutes relating to
the same subject matter are to be construed together, and
harmonized wherever possible.”
Hendry v. Hendry, 292 Ga. 1, 3 (734 SE2d 46) (2012) (citations omitted). See
also Sikes v. State, 268 Ga. 19, 21 (485 SE2d 206) (1997) (“[I]n construing
language in any one part of a statute, a court should consider the entire scheme
of the statute and attempt to gather the legislative intent from the statute as a
whole.”).
The GTCA “constitutes the exclusive remedy for any tort committed by
a state officer or employee . . . while acting within the scope of his or her official
duties or employment.” OCGA § 50-21-25 (a). The GTCA prohibits lawsuits
directly against the state officer or employee for such torts, see OCGA § 50-21-
25 (a), (b); instead, the lawsuit must be brought against “only the state
8
government entity for which the state officer or employee was acting” when he
allegedly committed the tort, OCGA § 50-21-25 (b). See Shekhawat v. Jones,
293 Ga. 468, 470 (746 SE2d 89) (2013).3 If the plaintiff does name the state
officer or employee individually as a defendant in the complaint, “the state
government entity for which the state officer or employee was acting must be
substituted as the party defendant.” Id. See also Kenneth L. Shigley & John D.
Hadden, Georgia Law of Torts – Trial Preparation and Practice § 15:3 (2013
ed.) (“Prior to enactment of the GTCA, tort claims were brought against
individual state employees and officials rather than the state agencies, and funds
were allocated by the state to pay settlements or judgments against employees
and officials within the course and scope of their duties. The GTCA reversed
this scheme, so that claims are brought against agencies rather than individual
3
The lawsuit against the state government entity is authorized by the state’s limited waiver
of sovereign immunity in OCGA § 50-21-23 (a):
The 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.
The state shall have no liability for losses resulting from conduct on the part of state
officers or employees which was not within the scope of their official duties or
employment.
9
employees and officials.”).
The lawsuits authorized by the GTCA may not be commenced unless and
until the plaintiff has provided prior written notice of the tort claim to both the
Risk Management Division of the State’s Department of Administrative
Services (DOAS) and “the state government entity, the act or omissions of
which are asserted as the basis of the claim.” OCGA § 50-21-26 (a) (2). The
ante litem notice must identify, among other things, “[t]he name of the state
government entity, the acts or omissions of which are asserted as the basis of the
claim.” OCGA § 50-21-26 (a) (5) (A). In the event that a civil action is filed,
the plaintiff must serve “the chief executive officer of the state government
entity involved,” as well as the director of the DOAS Risk Management
Division. OCGA § 50-21-35. Finally, no tort claim or judgment is payable
under the GTCA except from the State Tort Claims Trust Fund or from policies
of insurance or contracts of indemnity that DOAS has established, OCGA § 50-
21-34 (a), and DOAS is required to “establish and charge to state government
entities such premiums, deductibles, and other payments, taking into account
any direct appropriations as shall be necessary to maintain the soundness of the
insurance or self-insurance programs,” OCGA § 50-21-33 (d).
10
Thus, reading the Georgia Tort Claims Act as a whole makes it abundantly
clear that the immunity it provides is limited to torts committed by a “state
officer or employee” who was acting within the scope of his or her official
duties or employment on behalf of a specific “state government entity.” As this
Court recently reiterated,
[T]he GTCA, while allowing tort suits to proceed against the State
within its prescribed parameters, also makes clear that any liability
rests not with state employees in their individual capacities but
rather with “the state government entity for which the state officer
or employee was acting.” OCGA § 50-21-25 (b).
Shekhawat, 293 Ga. at 470. The statutory tort claims scheme simply cannot
operate if there is no “state government entity for which the state officer or
employee was acting” when he committed the alleged tort to be named or
substituted as the defendant, § 50-21-25 (b), so that there is no “state
government entity, the act or omissions of which are asserted as the basis of the
claim” to be notified of the claim, § 50-21-26 (a) (2), (a) (5) (A), with a chief
executive officer who may be served as required by § 50-21-35, and which may
be assessed insurance premiums by DOAS under § 50-21-33 (d) to cover
judgments under § 50-21-34 (a). It is therefore clear that a person who was not
acting for a specific “state government entity” cannot be deemed an immune
11
“state officer or employee” as that term is used in the GTCA.4
(c) The question then is whether the Agnes Scott police officer
defendants were acting for a “state government entity” when they committed the
alleged torts against Hartley. The answer is no.
OCGA § 50-21-22 (6) defines a “state government entity” as “a state
office, agency, authority, department, commission, board, division,
4
The requirement that a “state officer or employee” be someone who was acting for a
specific “state government entity” is not eliminated in situations where it is evident that the state
entity will win the case once it has been substituted for that person. The rules governing state officer
and employee immunity under the GTCA apply even to lawsuits that the plaintiff will lose as a result
of the limits that the state has imposed on the waiver of sovereign immunity of its government
entities. See, e.g., OCGA § 50-21-24 (listing 13 activities that “[t]he state shall have no liability for
losses resulting from,” including the method of providing law enforcement or police protection and
false imprisonment and false arrest).
The [GTCA] provides that the exclusive remedy for any tort committed by a state
officer or employee is an action against the state. A state officer or employee who
commits a tort while acting within the scope of his or her official duties or
employment is not subject to tort liability. This means that if an officer or employee
commits a tort while acting within the scope of his or her official duties or
employment, but immunity for that kind of tort is not waived by the Act, the plaintiff
will not have any state tort remedy against either the state or the officer or employee.
David J. Maleski, The 1992 Georgia Tort Claims Act, 9 Ga. St. Univ. L. Rev. 431, 442-443 (1993)
(footnotes omitted). See also Wang v. Moore, 247 Ga. App. 666, 669-670 (544 SE2d 486) (2001)
(holding that a tort action against individual employees was barred by the GTCA even where an
action against the state government entity for which the employees were acting was procedurally
foreclosed due to the plaintiff’s failure to serve ante litem notice on that entity); DeLoach v. Elliott,
298 Ga. 319, 320 (710 SE2d 763) (2011) (rejecting the argument that the immunity provided by
OCGA § 36-92-3 (a) for certain torts committed by local government employees is limited to
situations where the local government entity that must be substituted for the individual employee
under § 36-92-3 (b) remains liable and does not have a viable defense).
12
instrumentality, or institution.” It is undisputed that Agnes Scott College – a
private school – does not satisfy this definition, and the complaint does not
allege that the Agnes Scott police officer defendants were acting for any other
state government entity when they committed the alleged torts. Instead, the
complaint repeatedly alleges, and the answer admitted, that the officers’ tortious
conduct occurred while they were “acting in the line and scope of [their]
employment with Defendant Agnes Scott College,” and in particular as members
of the college’s Department of Public Safety. These officers were not appointed
to their positions by the Governor or by any state government entity, nor were
their actions directed and controlled by any state government entity. Moreover,
the Campus Policemen Act defines a “campus policeman” as “an employee of
an educational facility,” which in this case is Agnes Scott College. OCGA § 20-
8-1 (2). Indeed, the only relationship between the officer defendants and the
state alleged in the complaint was that each officer “is a citizen and resident of
the State of Georgia.”
After the amicus brief filed by the State called attention to the requirement
that a “state officer or employee” be acting for a “state government entity” to
come within the protection of the GTCA, the Agnes Scott officer defendants
13
asserted that a state government entity certified them and oversaw their exercise
of law enforcement powers as campus police officers – the POST Council
created by the POST Act. Even assuming that is true, certification and general
oversight by the POST Council do not automatically make the certified officer
a “state officer or employee” within the GTCA’s definition. In fact, county,
municipal, and other local officers – the majority of law enforcement officers in
Georgia – are subject to POST certification and oversight but are not “state
officer[s] or employee[s]” under the GTCA. See OCGA § 50-21-22 (5)
(excluding from the definition of “state” for GTCA purposes “counties,
municipalities, school districts, other units of local government, hospital
authorities, or housing and other local authorities”); Nichols v. Prather, 286 Ga.
App. 889, 892-893 (650 SE2d 380) (2007). We note in this regard that the
Campus Policemen Act gives a campus police officer “the same law
enforcement powers . . . as a law enforcement officer of the local government
with police jurisdiction over such campus,” OCGA § 20-8-2, but even if the
campus police officer were actually employed by that local government, he
normally would not qualify as a “state officer or employee” with immunity
under the GTCA. Compare OCGA § 20-8-4 (exempting “campus policemen
14
and other security personnel of the University System of Georgia,” which is a
state government entity, from the Campus Policemen Act). See also Corp. of
Mercer Univ v. Barrett & Farahany, LLP, 271 Ga. App. 501, 503 (610 SE2d
138) (2005) (“The mere fact that [private university police] officers are given
authority to perform certain functions by the Campus Policemen Act, and the
Georgia Peace Officer Standards and Training Act, does not make them officers
or employees of a public office or agency [for purposes of the Open Records
Act].”), superseded by statute, Ga. L. 2006, p. 519, § 5 (codified at OCGA § 20-
8-7).
Moreover, the defendants cite no authority for the proposition that mere
licensure by a state government entity, or the sort of training, oversight, and
discipline in which state licensing boards engage, suffice to make the licensee’s
torts attributable to the licensing agency – with the resulting damages thus
potentially payable from the state treasury. Licensing agencies do not
customarily engage in the type of direction and control of the activities of
licensed persons that normally makes a principal liable for the actions of its
employees or agents. Compare OCGA § 50-21-22 (7) (“The term state officer
or employee also includes . . . any natural person who is a volunteer
15
participating as a volunteer, with or without compensation, in a structured
volunteer program organized, controlled, and directed by a state government
entity for the purposes of carrying out the functions of the state entity.”
(emphasis added)). Under the defendants’ view, thousands and thousands of
Georgians licensed by state boards could seek immunity under the GTCA for
torts committed in the course of their licensed work. See
http://sos.ga.gov/index.php/?section=licensing (Georgia Secretary of State
website listing 43 professions licensed by state entities, ranging from
accountants and architects to cosmetologists, funeral directors, massage
therapists, and used car dealers). Such an expansive view of potential
tortfeasors who qualify as “state officer[s] or employee[s]” is contrary to one of
the fundamental purposes of the GTCA – limiting “the exposure of the state
treasury to tort liability.” OCGA § 50-21-21 (a).
(d) For these reasons, we conclude that, although campus police
officers may be considered in some contexts to be law enforcement officers or
persons performing services for the state, unless they are acting for an identified
“state government entity” when they commit an alleged tort, they do not come
within the definition of “state officer or employee” in the Georgia Tort Claims
16
Act and are not entitled to seek immunity under the GTCA. And because the
Agnes Scott police officer defendants were not acting for a state government
entity when they committed the alleged torts against Hartley, the GTCA
provides them no immunity. We therefore reverse Division 1 of the Court of
Appeals’ plurality opinion.
3. In supplemental briefing, the officer defendants argue that, even if
they are not immune from Hartley’s tort action under the GTCA, they are
entitled to official immunity under Article I, Section II, Paragraph IX (d) of the
Georgia Constitution because they qualify as “officers and employees of the
state.”5 It is true that the official immunity provided directly by the Constitution
is, in some respects, different in scope than the immunity provided by the
GTCA, both in terms of who is protected and in terms of what acts are
5
Article I, Section II, Paragraph IX (d) says:
Except as specifically provided by the General Assembly in a State Tort Claims Act,
all officers and employees of the state or its departments and agencies may be subject
to suit and may be liable for injuries and damages caused by the negligent
performance of, or negligent failure to perform, their ministerial functions and may
be liable for injuries and damages if they act with actual malice or with actual intent
to cause injury in the performance of their official functions. Except as provided in
this subparagraph, officers and employees of the state or its departments and agencies
shall not be subject to suit or liability, and no judgment shall be entered against them,
for the performance or nonperformance of their official functions. The provisions of
this subparagraph shall not be waived.
17
immunized. Compare, e.g., Gilbert v. Richardson, 264 Ga. 744, 747 (452 SE2d
476) (1994) (holding that “state” as used in this constitutional provision
includes counties), and id. at 753 (explaining that this constitutional provision
does not provide immunity for negligently performed ministerial acts), with,
e.g., OCGA § 50-21-22 (5) (defining “state” under the GTCA to exclude
counties), and OCGA § 50-21-23 (providing immunity for all torts committed
by a “state officer or employee” acting for a “state government entity”).6 On the
other hand, in light of the common origins of this constitutional provision and
the GTCA, the statutory definition of a “state officer or employee,” while not
controlling the meaning of the constitutional text, is worthy of consideration in
interpreting the Constitution’s use of the similar phrase “officers and employees
of the state.” See Kyle v. Ga. Lottery Corp., 290 Ga. 87, 89 & n.1 (718 SE2d
801) (2011).
We need not resolve this issue now, however, because the defendants’
claim of official immunity under the Constitution was not raised in the trial
6
Another constitutional provision, Article IX, Section II, Paragraph IX, authorizes the
General Assembly to “waive the immunity of counties, municipalities, and school districts by law.”
See Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95) (1985) (plurality opinion) (noting that
this grant of authority is, as to counties, duplicative of the authority already granted to the General
Assembly by Article I, Section II, Paragraph IX).
18
court, was not ruled on by that court or the Court of Appeals, and has not been
fully briefed in this Court. In particular, the parties have not addressed whether
persons who are not elected officials of the state or of a state department or
agency, and are not directed and controlled by any politically accountable
official or government entity, may be brought within the scope of the
Constitution’s official immunity provision by being granted law enforcement or
other traditional governmental powers by the General Assembly. See Mercer,
271 Ga. App. at 501 (noting that a campus police officer “exercis[es] the police
power of the State of Georgia by express legislative grant on a private university
campus”). See also DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294
Ga. 349, 367-368 (751 SE2d 827) (2013) (addressing an argument that a statute
was unconstitutional because it delegated to a private body not accountable to
the voters the authority to remove elected members of local boards of
education). We therefore express no opinion on this issue, leaving it for
potential development and consideration as this case proceeds.7
Judgment reversed in part. All the Justices concur.
7
We note in this respect that the defendants mentioned in a footnote to their opening brief
in the Court of Appeals that they “are also entitled to Constitutional Immunity under Paragraph IX
of Article I, § II of the Constitution of the State of Georgia which, if the case is allowed to proceed,
will be the subject of a separate motion for summary judgment, if necessary, at the conclusion of
discovery.”
19