FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
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.
http://www.gaappeals.us/rules/
July 16, 2015
In the Court of Appeals of Georgia
A15A0549. GEORGIA DEPARTMENT OF CORRECTIONS v.
GRADY MEMORIAL HOSPITAL CORPORATION.
A15A0550. DOUGLAS COUNTY v. GRADY MEMORIAL
HOSPITAL CORPORATION.
PHIPPS, Presiding Judge.
Grady Memorial Hospital Corporation d/b/a Grady Health System (“Hospital”)
filed a complaint against the Georgia Department of Corrections (“DOC”) and
Douglas County, Georgia, seeking payment for emergency medical care provided by
the Hospital to an inmate who had been injured while housed at the Douglas County
Jail. The DOC and Douglas County moved for summary judgment based on sovereign
immunity; Douglas County additionally moved for summary judgment based on the
Hospital’s alleged failure to comply with the notice provisions of OCGA § 36-11-1.
The trial court denied both defendants’ motions for summary judgment. For the
reasons that follow, we reverse the judgments.
On appeal from the grant or denial of a motion for summary
judgment, we conduct a de novo review of the law and evidence,
viewing the evidence in the light most favorable to the nonmovant, to
determine whether a genuine issue of material fact exists and whether
the moving party was entitled to judgment as a matter of law.1
Further, “[w]hether sovereign immunity has been waived is a matter of law, which we
review de novo.”2
The record reveals that Shaun Hood was an inmate at a DOC state prison when
the DOC transferred physical custody of Hood to the Douglas County Sheriff on or
about July 10, 2008 pursuant to a superior court production order, so that Hood would
be available for trial in a Douglas County criminal case. The production order further
provided that after his court appearance, Hood was to be returned by the Douglas
County Sheriff or his deputies to the custody of the DOC. On or about August 11,
1
Warnell v. United Government of Athens-Clarke County, 328 Ga. App. 903
(763 SE2d 284) (2014) (citation omitted).
2
DeKalb County v. Kirkland, 329 Ga. App. 262, 265 (764 SE2d 867) (2014)
(citation omitted); see Ga. Dept. of Nat. Res. v. Center for a Sustainable Coast, 294
Ga. 593, 596 (1) (755 SE2d 184) (2014).
2
2008, while he was being housed in the Douglas County Jail, Hood was injured.
Douglas County sheriff’s deputies transported Hood to Grady Memorial Hospital,
where he remained until August 31, 2008. The sheriff’s deputies returned Hood to the
custody of the DOC in September 2008.
Case No. A15A0549
1. The trial court denied the DOC’s motion for summary judgment on the basis
that the state’s sovereign immunity was waived under OCGA § 42-5-2. The DOC
contends that this was error because, inter alia, OCGA § 42-5-2 requires the
governmental entity to have physical custody of the inmate, which the DOC did not.
Except 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.3
The party seeking to benefit from a waiver of sovereign immunity has the burden of
establishing that sovereign immunity has been waived.4
3
Ga. Const. 1983, Art. I, § II, Para. IX (e).
4
See Kirkland, supra.
3
The Hospital has contended, below and on appeal, that OCGA § 42-5-2
establishes a waiver of sovereign immunity. That statute pertinently provides:
[I]t shall be the responsibility of the governmental unit, subdivision, or
agency having the physical custody of an inmate to maintain the inmate,
furnishing him . . . any needed medical and hospital attention. . . . [I]t
shall remain the responsibility of the governmental unit having the
physical custody of an inmate to bear the costs of such medical and
hospital care, if the custody of the inmate has been transferred from the
department pursuant to any order of any court within this state.
The cited statute does not establish a waiver of sovereign immunity under the
circumstances presented in this case, because Hood was not in the physical custody
of the DOC at the time he was injured and taken for treatment at the Hospital.
Physical custody of Hood had been transferred from the DOC to the Sheriff of
Douglas County pursuant to a court order. Under the express terms of OCGA § 42-5-
2, the DOC was not responsible for the costs of Hood’s medical care.
There being no waiver of sovereign immunity in this case pursuant to OCGA
§ 42-5-2, the trial court erred by denying the DOC’s motion for summary judgment
based on sovereign immunity.
4
Case No. A15A0550
2. Douglas County contends that, even assuming arguendo that sovereign
immunity for counties was waived by OCGA § 42-5-2, the trial court erred by
concluding that the Hospital had complied with the notice requirement of OCGA §
36-11-1.
OCGA § 36-11-1 pertinently provides: “All claims against counties must be
presented within 12 months after they accrue or become payable or the same are
barred.” “[W]hile the . . . statute requires simply that a claim be presented within 12
months, the cases have held that such claims must be presented in writing, and a mere
oral statement is insufficient.”5 “Formal, written notice is required.”6 The burden is
on the plaintiff to prove that it substantially complied with the statute.7
5
Doyal v. Dept. of Transp., 142 Ga. App. 79, 80 (234 SE2d 858) (1977)
(citations omitted). See generally Burton v. DeKalb County, 202 Ga. App. 676, 677
(415 SE2d 647) (1992) (the requirements of the statute were substantially complied
with where the claimant had given timely written notice of the grievance to the
governing authority).
6
Cobb v. Board of Commissioners &c., 151 Ga. App. 472, 473 (2) (260 SE2d
496) (1979) (citation omitted).
7
Jones v. City of Willacoochee, 299 Ga. App. 741, 742 (683 SE2d 683) (2009).
5
In its appellate brief, the Hospital points to the following as evidence that it
served the required notice on Douglas County: the Hospital’s discovery response in
which counsel for the Hospital stated that the Hospital had sent a bill to the Douglas
County Police Department showing Hood’s medical costs; an unsigned form titled
“Medical Cost Reimbursement Report,” on which Hood’s name and medical expenses
were written, and which Douglas County apparently would submit or would have
submitted to the DOC; a letter purportedly written by counsel for the Douglas County
Sheriff to an official at the DOC; a printout of an email regarding the hospital bill,
purportedly written by counsel for Douglas County and directed to an individual
whose relationship to this case was not indicated; and written summaries of phone
conversations purportedly held between various parties regarding the medical bill.
None of the documents was sworn, certified or otherwise authenticated.
Unauthenticated documents cannot be considered in opposition to a motion for
summary judgment.8 In any event, the Hospital has not pointed to any formal, written
8
Cordell v. Bank of N. Ga., 295 Ga. App. 402, 407 (1) (b) (672 SE2d 429)
(2008); Lee v. CSX Transp., 233 Ga. App. 30, 31 (503 SE2d 309) (1998).
6
notice of the claim that it gave to Douglas County.9 Therefore, the trial court erred by
denying Douglas County’s motion for summary judgment.
3. In light of our holding in Division 2,10 we do not consider Douglas County’s
contention that it was entitled to summary judgment on the additional ground that
“OCGA § 42-5-2 does not create a cause of action against Georgia counties.”
Judgments reversed. Doyle, C. J., and Boggs, J., concur fully in Divisions 1
and 3, and concur in judgment only as to Division 2.
9
See Cobb, supra.
10
Supra.
7