Personal Injury Claims Against Government Entities

 

Claims against government entities are more complicated due to notice requirements and sovereign immunity. It is never a matter of merely filing a complaint, serving the entity, and proceeding with a lawsuit.  

In Georgia, the complexities expand as there is not a uniform tort claims act that applies to all state, local, and municipal entities. As a result, there are different requirements between state, county, and municipal governments. This material explains the procedures necessary to file claims against government entities successfully.  

Claims Against the State: The Georgia Tort Claims Act

As the name suggests, the Georgia Tort Claims Act (GTCA) governs tort claims against state entities. It addresses sovereign immunity for states and any circumstances where the state waives immunity.  

The GTCA also includes requirements procedures for claims before they go forward, including ante litem notice. If a claim falls within those waivers, there is a cap on liability. The act limits claims to $1 million for a single occurrence and $3 million for aggregate liability per occurrence. O.C.G.A. § 50-21-29.

Sovereign Immunity

Sovereign immunity is a legal doctrine that protects governmental entities, such as the State of Georgia, from civil liability. Generally, government bodies cannot be sued without their consent and cannot commit a legal wrong.  

But tort claims acts, like the GTCA, create waivers of sovereign immunity so injured parties can pursue damages against the government. However, that waiver is subject to exceptions and limitations within those acts. The State Tort Claims Act waives sovereign immunity for civil claims up to the damages cap, unless an exception to the waiver applies. The GTCA contains a number of different exceptions to the waiver of sovereign immunity.   

Exceptions to Waiver of Sovereign Immunity

Sovereign immunity remains intact under these scenarios:  

• Act or omission by state officials when executing a statute, regulation, or ordinance, even if those laws are later proven invalid 
• Discretionary functions, done or not done, when performed by a state officer or employee, even if the officer or employee abused their discretion 
• Assessment or collection of tax 
• Legislative, judicial, quasi-judicial, or prosecutorial action/inaction 
• Civil disturbance, riot, insurrection, or rebellion 
• Failure to provide or method of providing law enforcement, police, or fire protection 
• Assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contractual rights 
• Inspection powers, failure to inspect, or negligent inspection 
• Licensing powers or functions 
• Infrastructure design or plans as long as they are within accepted engineering standards 
• Financing regulatory activities including, but not limited to, examinations, inspections, audits, or other financial oversight activities 
• National Guard or organized militia activities when engaged in state or federal training 
• Computer software or device failures occurring before December 31, 2005

See O.C.G.A. § 50-21-24.

A couple of these sovereign immunity situations have exceptions. Immunity arising from inspection powers does not apply when determining whether state-owned properties have code violations or safety hazards. Also, vehicle accidents are excepted from immunity applied to National Guard or organized militia activities. Id. 

Ante Litem Notice Requirements

Ante litem notice requirements are common in many states, and Georgia is no different. An ante litem notice is a pre-suit notice that must be sent to the governmental entity putting them on notice of the claim and giving them an opportunity to resolve the claim before litigation.  

The GTCA has a detailed ante litem requirement. Claimants must provide this notice within 12 months of their loss or injury and send it via certified mail or statutory overnight with a return receipt requested. They can also personally deliver the notice to the agency.  

One copy of the notice must go to the Risk Management Division of the Department of Administrative Services (DOAS). Another copy must go to the state entity whose acts or omissions form the basis for the claim.  

The notice must specify: 

• Name of the government agency involved in the claim 
• Time and place of the transaction or occurrence 
• A description of the claimant’s loss, e.g., injuries, emotional distress, property damage, etc. 
• Amount of loss claimed (monetary demand) 
• Acts or omissions that caused the loss, e.g., misfiled paperwork, car accident, or dangerous land conditions 

Upon receipt, the DOAS has 90 days to consider and accept or deny the claim. The claimant can file a lawsuit at the end of the 90 days or whenever the DOAS rejects the claim – whichever happens first. See O.C.G.A. § 50-21-26.

Filing Suit

The procedures for filing suit are controlled by O.C.G.A. § 50-21-28 and O.C.G.A. § 50-21-35. Here are the requirements for venue, the complaint, and service.  

Venue

File the lawsuit in the state or superior court in the county where the loss occurred. Do not file the complaint in federal court.  

The State can remove the case to federal court if there is a jurisdictional basis to do so (e.g. if you include a federal claim in your complaint). Although the Eleventh Amendment prevents you from filing suit against the State in federal court, the State can remove the lawsuit and thereby consent to jurisdiction. Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 619 (2002) .

Complaint Contents

Complaints filed under the GTCA must contain: 

• A copy of the ante litem notice and its delivery receipt. O.C.G.A. § 50-21-26(a)(4).
• The government entity (of which the officer or employee acted) as a named defendant. O.C.G.A. § 50-21-25. 
• Certificate indicating that the claimant sent the complaint to the state attorney general. O.C.G.A. § 50-21-35. 

Do not name an individual as a defendant unless they were a state officer or employee who acted beyond their scope of duties. Claims against officers or employees must allege negligence and other tort theories. Only state entities can be liable under the GTCA.  

Service

GTCA complaints must be personally served to:  

• The chief executive officer of the state entity named as a defendant 
• The director of the Risk Management Division for DOAS, at the usual office address 

Send a copy with the filing date to the state attorney general. Plaintiffs can send it via certified mail or statutory overnight with the return receipt requested.  

Claims Against Cities

Procedures for claims against cities are codified in O.C.G.A. § 36-33-1 et seq. There are more sovereign immunity waivers and specific requirements governing ante litem notice than there are for counties.

Immunity and Waivers

Sovereign immunity for cities is absolute unless the General Assembly implements a waiver. Godfrey v. Georgia Interlocal Risk Mgmt. Agency, 290 Ga. 211, 214 (2011). Current waivers include motor vehicle claims, liability insurance, ministerial functions, and nuisance claims. 

Motor Vehicle Claims

Plaintiffs can pursue motor vehicle claims against municipalities for damages up to: 

• $500,000 bodily injury or death of one person in one occurrence.
• $700,000 bodily injury or death of two or more people in one occurrence.
• $50,000 for injury to or destruction of property in one occurrence. O.C.G.A. § 36-92-2(a).

This is the same automatic waiver that applies to counties. The waiver amounts can increase if the local entity voluntarily enacts a higher waiver amount or purchases insurance coverage exceeding the statutory caps. Also, local government entities that join interlocal risk management agencies can secure coverage exceeding these amounts. O.C.G.A. § 36-92-2(d). 

Effects of Purchasing Liability Insurance

Municipalities waive sovereign immunity through the purchase of insurance if the policy covers an occurrence for which the defense of sovereign immunity is available. O.C.G.A. § 36-33-1(a). 

Ministerial Functions

Municipal corporations waive sovereign immunity for ministerial functions. The ministerial function exception to sovereign immunity is found at O.C.G.A. § 36-33-1(b). The use of the term “ministerial” in this statute is confusing because this term is most commonly associated with the ministerial act exception in the context of the official immunity of individual employees.  

The ministerial function exception is even more confusing in its application. There are cases that state that the ministerial function exception applies to proprietary functions, as opposed to governmental functions for which the city enjoys immunity (unless subject to some other waiver). City of Atlanta v. Durham, 324 Ga. App. 563 (2013). For example, in Durham, the Court of Appeals distinguished between ministerial functions and governmental functions, stating that governmental functions “are taken for the public benefit rather than for revenue production.”  Id. at 565. However, the act of improving or maintaining city streets and sidewalks in a safe condition has been repeatedly held to be a ministerial function.  See, e.g., City of Fitzgerald v. Caruthers, 332 Ga. App. 731 (2015). When dealing with municipal liability claims, you will need to research the specific conduct in your case if you are trying to fit it within the ministerial act exception to sovereign immunity. 

Nuisance Claims

The nuisance claim exception arises from a simple principle: Cities should not create dangerous conditions or take advantage of private property for a public purpose under the guise of performing a government function. When people sustain injuries or losses from these acts, they should have access to compensation. City of Thomasville v. Shank, 263 Ga. 624, 624 (1993). 

Whether the action leading to the loss is ministerial or discretionary does not matter. If a plaintiff can show the city created a dangerous nuisance that threatened health or life or unjustly used private property, the injured party can pursue a claim. Id.

Ante Litem Notice Requirements

The notice requirements for municipalities are under O.C.G.A. § 36-33-5. The plaintiff must provide the notice within six months of the injury and include: 

• Time and place of the injury 
• Details on the extent of the injury 
• Negligence that caused the injury 
• The extent of injury 
• The specific amount of monetary damages sought 

The requirement that seems to trip up plaintiffs the most is the requirement that the notice state the specific amount of monetary damages being sought. In some cases, plaintiffs have stated in their notices they are seeking “up to” or “not less than” a particular amount. See, e.g., Hall v. City of Blakely, 361 Ga. App. 135 (2021). This is too indefinite. Keep it simple when sending a notice to the City. Just state that the specific amount of monetary damages you are seeking from the city is $X. 

Plaintiffs must send the notice via personal service, certified mail, or statutory overnight delivery to the mayor or chairperson of the city council or commission.  

Once received, the city has 30 days to act on the notice. The statute of limitations tolls if the demand for payment is pending without a decision.  

Complaints must allege compliance with these requirements. A good practice is to attach to the complaint the notice with proof of delivery. 

Claims Against Counties

Counties are unique due to their broad sovereign immunity and lack of clear statutory requirements for notice and claims.

Immunity

Counties have very broad sovereign immunity. The waivers for municipalities for insurance purchases, ministerial functions, and nuisances do not apply to counties.

Motor Vehicle Claims

Counties do waive sovereign immunity from any claim arising from the ownership, operation, or maintenance of a motor vehicle. O.C.G.A. § 33-24-51. There is an automatic waiver of $500,000 for claims arising out of the use of a covered motor vehicle, but if the County opts to purchase insurance, or adopts a higher waiver, then the waiver can be more than $500,000. 

To show a waiver for the use of a motor vehicle, a plaintiff must show that the county or municipal vehicle was the cause in fact, and the proximate cause of injury, meaning the vehicle was “in use.” Case law demonstrates that an employee or officer must drive the car to be “in use” rather than using the trunk as storage or committing a tort near the vehicle. City of Roswell v. Hernandez-Flores, 365 Ga. App. 849, 851-852 (2022).

Ante Litem Notice Requirements

Technically, counties do not have an ante litem notice requirement, at least not in the traditional sense. But O.C.G.A. § 36-11-1 requires claimants to give counties notice of a claim within 12 months after the incident. There are no requirements for the notice or information it should contain. A lawsuit itself, if filed and served within 12 months, can constitute adequate notice to satisfy this statutory requirement. See Godfrey v. Jefferson Cnty., 21 Ga. App. 384, 94 S.E. 604 (1917). Thus, this is not a pre-suit notice requirement like a traditional ante litem notice requirement. Instead, it is a presentment statute that requires notice of the claim within a specific period. 

The best practice is to give the county entity some notice before filing a lawsuit. Notice to counties should contain similar information as other types of ante litem notice, including: 

• Claimant name 
• Time and place of the loss causing injury 
• Description of injury 
• Facts supporting negligence by the county 
• A dollar amount for monetary damages  

Once complete, send notice to: 

• County attorney  
• County manager 
• Chair of the Board of County Commissions 
• The head of the department involved in the claim 

Use personal service, registered mail, or statutory overnight to provide these notices.

Claims Against County Sheriffs

Claims against county sheriffs often involve deputy misconduct or negligence. Sheriffs are treated as counties for purposes of the waiver of sovereign immunity, as well as the notice requirements (at least for now). Moats v. Mendez, 349 Ga. App. 811, 813 (2019). The current state of the law requires that notice be sent to the sheriff. Moats, 349 Ga. App. at 814-15. But there is currently a case pending at the Georgia Supreme Court that will address this issue. For now, the best practice is to send it to both the sheriff and the county. The proper defendant for a case arising out of the negligence of a deputy is the sheriff in his official capacity. 

Claims Against School Districts

Claims against school districts proceed much like claims against counties with similar approaches to sovereign immunity.

Sovereign Immunity

School districts have broad sovereign immunity. Coffee Cnty. Sch. Dist. v. Snipes, 216 Ga. App. 293, 294 (1995). There is not a waiver for the purchase of liability insurance (except for motor vehicle claims), and the other waivers that apply to municipalities do not apply to cities.  

The automatic waiver of sovereign immunity for motor vehicle claims that applies to cities and counties does not apply to school districts. There is a waiver though if the school district purchases insurance for motor vehicle claims. Tift Cnty. Sch. Dist. v. Martinez, 331 Ga. App. 423, 428, (2015).

Also, school boards must provide liability insurance for children riding school buses. The amount is within the board’s discretion, allowing parents to get relief if children sustain injuries while riding a bus. O.C.G.A. § 20-2-1090. 

Federal Claims

Federal claims against state and local government entities are limited due to various constitutional immunities that apply. Generally, federal courts cannot exercise jurisdiction over state governments. But some strategies and circumstances allow these claims to proceed.

State

The state government has absolute 11th Amendment immunity from federal law claims. However, plaintiffs can plead tort claims against individuals working for the state government. This course of action requires the lawsuit to name employees or officers in their individual capacities. As shown below, this will lead to a qualified immunity defense and needing to overcome that defense. 

There is no 11th Amendment immunity for injunctive relief. 

Cities and Counties

There is no vicarious liability for causes of action arising under 42 U.S.C. 1983. Plaintiffs can sue the employing governmental entity, or supervisory official, for constitutional violations only if ordinances, regulations, customs, or policies cause the violation. The Supreme Court established these claims under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). These claims are commonly referred to as Monell claims. 

County governments differ from cities in one important respect when it comes to federal claims and immunities. Cities never have 11th Amendment immunity. Counties do not have automatic 11th Amendment immunity, but they can receive it if the court determines they acted as an “arm of the state” for the conduct that is at issue. Manders v. Lee, 338 F.3d 1304, 1309 (11th Cir. 2003).

The court considers these factors when determining whether a county is an arm of the state: 

• How state statutes define the entity 
• The degree of control the state has over the entity 
• Where the entity derives its funds 
• Who pays judgments rendered against the entity. 

Individual Government Employees

If sovereign or 11th Amendment immunity applies to a claim, pursuing individual employees, officers, and government officials may be an option. However, there are additional defenses available to individuals under both state and federal law.

State Law Claims

The GTCA protects state officers and employees from direct claims if they act within their official duties.  These claims must name the department, not the individual. O.C.G.A. § 50-21-25(a). 

Employees of other governmental entities (for example, city, county, sheriff’s office, and school districts) do not have blanket immunity. But they do have state law official immunity. Official immunity protects individual employees from liability. There are two exceptions to official immunity:  (1) if the employee was performing a ministerial duty, or (2) the employee performed their official duties with malice or intent to injure. McDowell v. Smith, 285 Ga. 592, 593 (2009). 

A ministerial act is “simple, absolute, and definite, arising out of conditions admitted or provided to exist.” These acts involve specific procedures to carry out official duties. They are not fluid instructions requiring discretion but official procedures that must be followed. Coffey v. Brooks Cnty., 231 Ga. App. 886, 891 (1998).

McDowell involved a school receptionist who released a student to her father, a noncustodial parent who was not authorized to pick the student up from school. The receptionist made this decision after receiving a telephone call and fax allegedly from the child’s mother and did not consult an administrator before release.  

The official procedure for early release was first to consult the student’s identification card to ensure the person doing the pick-up was authorized. If not, the next step was to call an administrator. Since the receptionist did not follow either of these procedures, she did not enjoy the benefits of official immunity. McDowell, 285. Ga. at 594. 

The statutes that apply to motor vehicle claims for local governmental entities (cities, counties, and consolidated city-county governments) provide that individual employees have immunity and cannot be sued. See O.C.G.A. § 36-92-3. If you have a motor vehicle claim, make sure you sue the governmental entity. There is an argument that the immunity afforded under this statute is unconstitutional as it violates the Georgia Constitution.

Federal Claims

Qualified immunity is an available defense for government employees who are sued in their individual capacity for federal constitutional claims. The doctrine protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, (1982). Qualified immunity covers all errors, including mistakes of law, fact, or mixed questions of law and fact. Pearson v. Callahan, 555 U.S. 223, 231 (2009). 

Determining its application requires a court to determine whether a reasonable official would understand that the conduct at issue is illegal or violates a constitutional right. Hope v. Pelzer, 536 U.S. 730, 739, (2002).

Qualified immunity requires a two-pronged analysis:  

• Whether the officer or employee violated a plaintiff’s constitutional rights, and 
• Whether the right at issue was “clearly established” at the time of alleged misconduct. Pearson, 555 U.S. at 232. 

Conclusion and Best Practices

Injury claims arising out of the conduct of government employees and entities are not as straightforward as claims involving private actors. There are numerous procedural hoops that must be jumped through and a variety of defenses and substantive nuances that may exist. It is important to thoroughly research all pertinent statutes and cases when evaluating an injury claim that involves a government employee or agency. This should be done quickly because of the notice requirements that may apply. 

When conducting your research, make sure you identify the tortfeasor’s employer. As Georgia does not have a uniform tort claims act for all governmental entities, the procedural requirements and substantive issues will vary depending on which entity employed the tortfeasor.

To learn more about The Champion Firm and the personal injury practice areas we cover, visit our main website here. If you’re an attorney seeking to refer a case or partner with us as co-counsel, please reach out here.