Facts
In November 2017, Plaintiff suffered catastrophic injuries from a motor vehicle collision with a Henry County Water Authority (“HCWA”) truck that was driven by an HCWA employee. Plaintiff served notice of his claims on several Henry County officials within 12 months of the crash pursuant to the notice requirement in O.C.G.A. § 36-11-1, but did not serve a copy directly on HCWA.
Plaintiff later filed a lawsuit against HWCA and the employee, alleging in his original Complaint that the employee was acting within his official capacity and the scope of his employment at the time of the collision. Defendants moved to dismiss the Complaint for failure to comply with the ante litem notice requirements and on the ground that the employee was immune from suit since the employee was acting within his official duties.
However, after the Motion to Dismiss was filed, Plaintiff filed an Amended Complaint, alleging that the employee acted outside of his official duties or otherwise was not working. Therefore, Plaintiff contended the employee had no immunity and was personally liable for his own negligence. Plaintiff alternatively asserted a claim against HCWA, alleging that it would be liable for the employee’s actions if the employee was engaged in activities within his official duties.
The trial court dismissed the claims against HCWA, concluding that Plaintiff failed to comply with ante litem notice requirements with HCWA pursuant to OCGA § 36-11-1, and the trial court dismissed the claims against the employee, agreeing with Defendants that the employee was entitled to statutory immunity pursuant to OCGA § 36-92-3(a).
Issues and Holdings
The issues in this case were:
- Was Plaintiff obligated to comply with OCGA § 36-11-1 (notice requirements for counties) to pursue a claim against HCWA?
- Based on Plaintiff’s allegations construed in the light most favorable to the Plaintiff, did the trial court err in finding that the employee had statutory immunity?
The court ruled:
- No.
- Yes.
The Court of Appeals reversed the trial court’s decision to dismiss Plaintiff’s claims. The Court of Appeals held the notice requirement applies to counties, not an “independent, legislatively-created public water authority.” Additionally, Plaintiff was allowed to proceed on alternative theories of recovery against the employee individually, even if the allegations appeared to be contradictory.
Reasoning
Notice Requirement for Counties
O.C.G.A. § 36-11-1 provides that “all claims against counties must be presented within 12 months after they accrue or become payable or the same are barred . . .”
HCWA is not a county. It is a public entity created by Georgia General Assembly to operate and maintain a water system within Henry County.
HCWA attempted to argue that the notice requirements were applicable because the General Assembly amended HCWA’s operative legislation, stating that “[HCWA] shall enjoy the same immunity from suit as that enjoyed by Henry County.” HCWA’s position was that if it shares the same immunity as Henry County, then HCWA must be viewed as a “county” for purposes of the notice requirement too.
However, the Court of Appeals disagreed. It concluded that O.C.G.A. § 36-11-1 is not an immunity statute. The sovereign immunity statutory scheme does not demonstrate that service of notice under § 36-11-1 is a pre-requisite to any sovereign immunity waiver. The plain language of the ante litem notice statute makes no reference to immunity. Claim presentment requirements and waiver of immunity requirements are distinct, independent concepts. “A cause of action against a county does not exist unless the claim has been presented within 12 months.” Warnell v. Unified Govt. of Athens-Clarke County, 328 Ga. App. 903, 904 (2014). This is a separate concept from being a public entity being “immune from suit.”
The Trial Court’s Improper Dismissal of Plaintiff’s Claims Against the Employee
There are three important rules to keep in mind when faced with a Motion to Dismiss.
- First Rule: The trial court’s standard of review for a Motion to Dismiss is to view the allegations of the complaint in the light most favorable to the Plaintiff with all doubts resolved in favor of Plaintiff. Moats v. Mendez, 349 Ga. App. 811-13 (2019). Dismissal is warranted only if the Plaintiff would not be entitled to relief under any state of provable facts. Id.
- Second Rule: The withdrawal of, or amendment of, admissions in a subsequent pleading has the effect of replacing any admissions that were provided in the original pleading. Georgia-Pacific v. Fields, 293 Ga. 499, 501-02 (2013).
- Third Rule: Georgia law allows Plaintiffs to proceed on alternative (even contradictory) theories of recovery. Zambetti v. Cheeley Investments, 343 Ga. App. 637, 647 (2017).
In the present case, once Defendants filed the Motion to Dismiss based on the admissions that Plaintiff provided in the original complaint, Plaintiff amended his complaint to allege instead that the HCWA employee was NOT acting in his official duties when the negligence occurred, which means the employee would not be immune.
Plaintiff’s amended allegation replaced the original allegation; therefore, the trial court erred in dismissing Plaintiff’s claims based solely on the allegation of the original complaint.
Conclusion
Henry County Water Authority reminds us that although we should dot our “i”s and cross our “t”s by complying with the claims presentment/notice requirement in O.C.G.A. § 36-11-1 if a county is involved, we should remember that the General Assembly must explicitly legislate for a public entity to be classified as a county for the ante litem requirements to be applicable to the public entity. Nevertheless, out of an abundance of causation, and to avoid endless motions and appeals, the best practice is to send a notice to all potential entities involved.
This case further reminds us that we can have alternative theories of recovery in our complaints, even when those theories appear to be contradictory.
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Citation: Thomas, et al. v. Henry County Water Authority, et al., No. A23A0362 (Ga. Ct. App. Apr. 18, 2023 )
