ADRIENNE YOUNG v. STEVE JOHNSON ( 2021 )


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  •                               FIRST DIVISION
    BARNES, P. J.,
    GOBEIL and MARKLE, JJ.
    NOTICE: Motions for reconsideration must be
    physically received in our clerk’s office within ten
    days of the date of decision to be deemed timely filed.
    https://www.gaappeals.us/rules
    DEADLINES ARE NO LONGER TOLLED IN THIS
    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
    THE TIMES SET BY OUR COURT RULES.
    June 14, 2021
    In the Court of Appeals of Georgia
    A21A0453. YOUNG v. JOHNSON et al.
    GOBEIL, Judge.
    Adrienne Young sustained injuries when her vehicle was hit by a vehicle
    driven by Steve Johnson, a City of Atlanta (the “City”) employee. The City owned the
    vehicle Johnson was driving, and he was acting within the course and scope of his
    employment at the time of the crash. Young filed a negligence action against the City,
    under a theory of respondeat superior, and against Johnson in his individual capacity.
    The City and Johnson answered the complaint and filed a motion to dismiss the
    complaint for failure to state a claim, asserting in relevant part that Young’s claims
    were barred by sovereign immunity and that she failed to cite any statutory waiver of
    sovereign immunity that would apply to her allegations. Young did not thereafter
    amend her complaint or respond to the motion to dismiss, and the trial court granted
    the motion as to the City and Johnson. Specifically, the trial court ruled that (1)
    Young failed to establish that the City had waived sovereign immunity in the action,
    and (2) Johnson could not be held liable in his individual capacity. This appeal
    followed. In her sole claim of error, Young argues that the trial court erred by ruling
    that she had not established a waiver of the City’s sovereign immunity because the
    City’s immunity is clearly and explicitly waived by OCGA § 36-92-2 (a) (3). As
    explained below, we find no error and affirm.
    “We review de novo a trial court’s ruling on a motion to dismiss based on
    sovereign immunity grounds, which is a matter of law. Factual findings are sustained
    if there is evidence supporting them, and the burden of proof is on the party seeking
    the waiver of immunity.” Douglas v. Dept. of Juvenile Justice, 
    349 Ga. App. 10
    , 10-
    11 (825 SE2d 395) (2019) (citation and punctuation omitted). See also City of Tybee
    Island v. Harrod, 
    337 Ga. App. 523
    , 524 (788 SE2d 122) (2016) (“Sovereign
    immunity of a municipality is not an affirmative defense, going to the merits of the
    case, but raises the issue of the trial court’s subject matter jurisdiction to try the case,
    and waiver of sovereign immunity must be established by the party seeking to benefit
    from that waiver[.]”) (citation and punctuation omitted).
    2
    Under Georgia law, municipal corporations are immune from suit pursuant to
    Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia, unless
    that immunity is waived by the General Assembly. See Ga. Const. of 1983, Art. I,
    Sec. II, Par. IX (e). Specifically, with regard to municipal corporations, our General
    Assembly has enacted OCGA § 36-33-1, which reiterates that “it is the public policy
    of the State of Georgia that there is no waiver of the sovereign immunity of municipal
    corporations of the state and such municipal corporations shall be immune from
    liability from damages.” OCGA § 36-33-1 (a).
    In the context of cases involving automobile collisions, OCGA § 36-92-2,
    provides that “[t]he sovereign immunity of local government entities for a loss arising
    out of claims for the negligent use of a covered motor vehicle is waived up to
    [certain] limits” as outlined in the statute. OCGA § 32-92-2 (a).1 “The waiver
    provided by this chapter shall be increased to the extent that . . . [t]he local
    government entity purchases commercial liability insurance in an amount in excess
    of the waiver set forth in this Code section.” OCGA § 36-92-2 (d) (3). In Gates v.
    Glass, 
    291 Ga. 350
    , 352-353 (729 SE2d 361) (2012), our Supreme Court gave the
    1
    For incidents which occur on or after January 1, 2008, such as the one in the
    present case, an aggregate amount of $500,000 is the limit for bodily injury or death
    of any one person in any one occurrence. OCGA § 36-92-2 (a) (3).
    3
    following explanation of the statutory scheme with regards to waiver of sovereign
    immunity under this code section:
    An examination of OCGA § 36-92-1 et seq., as well as the earlier and
    revised versions of OCGA § 33-24-51 (a) and (b), demonstrates an
    intent on the part of the legislature to create a two-tier scheme within
    which local governments are deemed to have waived sovereign
    immunity with regard to accidents arising from the operation of their
    motor vehicles. The first tier, established under OCGA § 36-92-1 et seq.,
    requires local entities to waive sovereign immunity — up to certain
    prescribed limits — for incidents involving motor vehicles regardless of
    whether they procure automobile liability insurance. The second tier,
    enacted by OCGA § 33-24-51 (b), and as revised in 2002, provides for
    the waiver of sovereign immunity to the extent a local entity purchases
    liability insurance in an amount exceeding the limits prescribed in
    OCGA § 36-92-2.
    (Footnote omitted).
    Young argues that she was not required to expressly allege that the City waived
    sovereign immunity because the facts she raised in her complaint demonstrate a
    waiver as codified in OCGA § 36-92-2. We disagree. In her suit, Young alleged that
    she sustained injuries as a result of an automobile collision with Johnson, a City
    employee, due to Johnson’s negligent operation of the vehicle. However, sovereign
    immunity is not an affirmative defense and the City did not have a duty to “negate the
    4
    possibility that the defense of sovereign immunity had been waived.” Kelleher v.
    State of Ga., 
    187 Ga. App. 64
    , 64-65 (1) (369 SE2d 341) (1988) (emphasis supplied).
    As noted above, Young did not explicitly plead a waiver of the City’s sovereign
    immunity in her complaint, and she failed to amend her complaint to allege such a
    waiver. Furthermore, she did not (1) raise OCGA § 36-92-3 in any of her filings in
    the court below, (2) respond to the City’s motion to dismiss, or (3) otherwise contest
    the motion to dismiss.2 Under these circumstances, the trial court properly found that
    Young failed to satisfy her burden of establishing a waiver of the City’s sovereign
    immunity, and the court did not err by dismissing her complaint. See Seay v.
    Cleveland, 
    270 Ga. 64
    , 66 (2) (508 SE2d 159) (1998) (where plaintiffs failed to allege
    specific statutory waiver of sovereign immunity in their complaint or motion for
    directed verdict, issue of whether county’s sovereign immunity had been waived by
    OCGA § 50-21-1 (a) “present[ed] nothing for review on appeal”); Bulloch County
    School Dist. v. Ga. Dept. of Ed., 
    324 Ga. App. 691
    , 693-694 (1) (751 SE2d 495)
    2
    In her appellate brief, Young maintains that the parties had stipulated that she
    would have additional time to respond to the motion to dismiss, but she
    “inadvertently neglected to file a stipulation to that effect with the trial court.” She
    also alleges that she filed a motion to reconsider or set aside the trial court’s dismissal
    order, but this motion does not appear in the record transmitted to this Court in
    connection with this appeal, and Young did not move to supplement the record on
    appeal.
    5
    (2013) (school district failed to establish waiver of department of education’s
    sovereign immunity, in part, where district did not assert any waiver of sovereign
    immunity in its complaint or in its motion seeking funds from the department, did not
    file a reply brief responding to the department’s assertion of sovereign immunity, and
    never asserted any statutory claim of waiver until it filed its brief with this Court);
    Kelleher, 187 Ga. App. at 64-65 (1) (noting that State was not required to address
    issue of sovereign immunity because appellant never alleged it in trial court).
    Judgment affirmed. Barnes, P. J., and Markle, J., concur.
    6
    

Document Info

Docket Number: A21A0453

Filed Date: 6/15/2021

Precedential Status: Precedential

Modified Date: 6/15/2021