FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and BROWN, 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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
April 15, 2020
In the Court of Appeals of Georgia
A20A0602. GWINNETT COUNTY, GA v. ASHBY.
DILLARD, Presiding Judge.
We granted Gwinnett County’s application for an interlocutory appeal to
determine whether the trial court erred in denying its motion to dismiss Twynette
Ashby’s action to recover for personal injuries on the ground that her suit was barred
by sovereign immunity. Because we agree with the County, we reverse.
Ashby filed suit against the County, its Board of Commissioners, the
Lawrenceville Youth Athletic Association, John Does 1-3, and XYZ Corporations 1-3
on April 23, 2019. Ashby alleged that on July 26, 2017, she attended her son’s
football practice at a baseball field in Rhodes Jordan Park in Lawrenceville, which
is located in Gwinnett County. Ashby was walking near the bleachers when her foot
slipped into an uncovered drain, which caused her to fall and sustain “severe personal
injuries.” She claimed that the fall resulted from the defendants negligently
maintaining or repairing the drain and failing to warn of the dangerous condition. As
a result, she asserted that the County was vicariously liable for the negligent acts of
its agents or employees (i.e., John Does 1-3 and XYZ Corporations 1-3).
The County answered and contended, inter alia, that Ashby’s claims were
barred by sovereign immunity, and subsequently moved to dismiss her suit on this
ground. In response, Ashby argued that OCGA § 50-21-23 waived the County’s
immunity from suit and, additionally, that such immunity was waived under the
Recreational Property Act.1 More specifically, Ashby alleged—in response to the
motion to dismiss—that the County charged her a fee for using the park for
recreational purposes because she paid for her son to participate on the football team
and use the park for practice.2 Without any explanation, the trial court denied the
County’s motion to dismiss on the ground of sovereign immunity.3 But the court did
1
See OCGA § 51-3-20 (“The purpose of this article is to encourage owners of
land to make land and water areas available to the public for recreational purposes by
limiting the owners’ liability toward persons entering thereon for recreational
purposes.”).
2
Ashby did not allege in her complaint that she was charged any such fee.
3
The trial court granted the motion to dismiss filed by the Board of
Commissioners on the ground that it was not a proper party defendant. Ashby
2
issue a certificate of immediate review, and we granted the County’s application for
interlocutory appeal. This appeal follows.
We review a trial court’s ruling on a motion to dismiss based on sovereign
immunity de novo because it is a matter of law.4 Of course, the trial court’s factual
findings will be sustained if there is evidence to support them, and the party seeking
conceded that this decision was correct. As a result, the Board is not a named party
to this appeal, and we are not faced with any question as to its dismissal.
4
See, e.g., Ga. Dep’t of Nat’l Res. v. Ctr. for a Sustainable Coast, Inc., 294 Ga.
593, 596 (2) (755 SE2d 184) (2014) (“Turning to the issue of sovereign immunity,
our review of this question of law is de novo.”); Fulton Cty. Sch. Dist. v. Jenkins, 347
Ga. App. 448, 449 (820 SE2d 75) (2018) (“This Court reviews de novo a trial court’s
ruling on a motion to dismiss based on sovereign immunity grounds, which is a
matter of law.” (punctuation omitted)); Williams v. Wilcox State Prison, 341 Ga. App.
290, 291 (799 SE2d 811) (2017) (“We begin by noting that this Court reviews de
novo a trial court’s ruling on a motion to dismiss based on sovereign immunity
grounds, which is a matter of law.” (punctuation omitted)); see also Handberry v.
Stuckey Timberland, Inc., 345 Ga. App. 191, 191 (812 SE2d 547) (2018) (“On appeal
of a trial court’s ruling on a motion to dismiss, our review is de novo.”).
3
the waiver of immunity has the burden of proof.5 With these guiding principles in
mind, we turn to the County’s claim of error.
Sovereign immunity protects all levels of governments from “legal action
unless they have waived their immunity from suit.”6 Any suit against the State that
is barred by sovereign immunity is subject to dismissal under OCGA § 9-11-12 (b)
5
See, e.g., Ga. Dept. of Labor v. RTT Assoc., Inc., 299 Ga. 78, 81 (1) (786
SE2d 840) (2016) (“The burden of demonstrating a waiver of sovereign immunity
rests upon the party asserting it.”); Bd. of Regents of Univ. Sys. of Ga. v. Daniels, 264
Ga. 328, 328 (446 SE2d 735) (1994) (explaining that the party seeking to benefit
from the waiver of sovereign immunity has the burden of proving waiver); Jenkins,
347 Ga. App. at 449 (“The trial court’s factual findings will, of course, be sustained
if there is evidence supporting them, and the burden of proof is on the party seeking
the waiver of immunity.” (punctuation omitted)); Williams, 341 Ga. App. at 290
(same).
6
Cameron v. Lang, 274 Ga. 122, 126 (2) (549 SE2d 341) (2001); accord
Drumm v. George, 345 Ga. App. 760, 762 (814 SE2d 575) (2018); Watts v. City of
Dillard, 294 Ga. App. 861, 862 (1) (670 SE2d 442) (2008); see Ctr. for Sustainable
Coast, 294 Ga. at 599 (2) (“[T]he plain language of [Ga. Const. Art. I, Sec. II, Par. IX
(e)] explicitly bars suits against the State or its officers and employees sued in their
official capacities, until and unless sovereign immunity has been waived by the
General Assembly.” (footnote omitted)).
4
(1) for lack of subject-matter jurisdiction.7 And like the State, counties too enjoy
sovereign immunity.8
Sovereign immunity is only waived by an act of the General Assembly
specifically providing for waiver and delineating the extent of that waiver.9 Likewise,
OCGA § 36-1-4 provides that “[a] county is not liable to suit for any cause of action
unless made so by statute.”10 Accordingly, a county’s immunity is “complete unless
7
See Conway v. Jones, 353 Ga. App. 110, 111 (1) (836 SE2d 538) (2019)
(“Any suit against the State barred by sovereign immunity is subject to dismissal
[under] OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction.” (punctuation
omitted)); Bd. of Trustees of Ga. Military College v. O’Donnell, 352 Ga. App. 651,
653 (1) (835 SE2d 688) (2019) (same); Dep’t of Pub. Safety v. Johnson, 343 Ga. App.
22, 23 (806 SE2d 195) (2017) (same); see also Bd. of Regents of the Univ. Sys. of Ga.
v. Myers, 295 Ga. 842, 845 (764 SE2d 543) (2014) (“If the ante litem notice
requirements are not met, then the State does not waive sovereign immunity, and
therefore, the trial court lacks subject matter jurisdiction.”).
8
See Layer v. Barrow Cty., 297 Ga. 871, 871 (1) (778 SE2d 156) (2015) (“As
a general rule, counties enjoy sovereign immunity.”); accord Conway, 353 Ga. App.
at 111 (1).
9
See GA. CONST. of 1983, Art. I, Sec. II, Par. IX (e) (“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.”); accord Dep’t of Human Servs. v. Duncan,
351 Ga. App. 332, 334 (831 SE2d 4) (2019).
10
See also Davis v. Effingham Cnty. Bd. of Comm., 328 Ga. App. 579, 582 (1)
(a) (760 SE2d 9) (2014) (“A negligence claim against the state or its subdivisions,
including counties, is barred unless waived by statute.”).
5
waived by statute, and includes protection from suits involving claims of
negligence.”11
To that end, Ashby’s assertion that the County’s immunity was waived by
OCGA § 50-21-23 is unavailing. That code section provides, in relevant part:
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.12
But OCGA § 50-21-22 (5) specifically excludes counties from the definition of
“state” for purposes of the Georgia Tort Claims Act.13 So, even though Ashby
11
Rutherford v. DeKalb Cty., 287 Ga. App. 366, 367-68 (1) (651 SE2d 771)
(2007); see Gilbert v. Richardson, 264 Ga. 744, 754 (7) (452 SE2d 476) (1994) (“A
county may be liable for a county employee’s negligence in performing an official
function to the extent the county has waived sovereign immunity.”); Russell v.
Barrett, 296 Ga. App. 114, 120 (2) (673 SE2d 623) (2009) (same).
12
OCGA § 50-21-23 (a).
13
See OCGA § 50-21-22 (5) (“‘State’ means the State of Georgia and any of
its offices, agencies, authorities, departments, commissions, boards, divisions,
6
suggests that her suit against the John Doe and XYZ Corporation defendants as
county employees somehow waives sovereign immunity, it is well established that
“county officers sued in their official capacities—since a suit against a county officer
in her official capacity is a suit against the county itself—enjoy the same sovereign
immunity.”14 Likewise, Ashby’s assertion that the County waived sovereign immunity
to the extent of its liability coverage is without merit because there is no assertion that
a County motor vehicle was involved.15
Finally, we also disagree with Ashby’s contention that the County waived
sovereign immunity under the Recreational Property Act when it charged a fee for her
son’s participation in football. The codified purpose of the Recreational Property Act
instrumentalities, and institutions, but does not include counties, municipalities,
school districts, other units of local government, hospital authorities, or housing and
other local authorities.” (emphasis supplied)).
14
Layer, 297 Ga. at 871 (1); accord Conway, 353 Ga. App. at 111 (1); see
Gilbert, 264 Ga. at 754 (7) (holding that county official sued in official capacity was
entitled to the benefit of the County’s sovereign immunity).
15
See, e.g., Gilbert, 264 Ga. at 748-49 (4) (explaining that “a county waives its
governmental immunity to the extent of the amount of liability insurance purchased
for the negligence of its officers, agents, servants, attorneys, or employees arising
from the use of a motor vehicle” (emphasis supplied)); Nichols v. Prather, 286 Ga.
App. 889, 893-94 (2) (650 SE2d 380) (2007) (holding that county employees sued in
their official capacity were entitled to sovereign immunity, but sovereign immunity
was waived by the purchase of automobile liability insurance).
7
is “to encourage both public and private landowners to make their property available
to the public for recreational purposes by limiting the owners’ liability.”16 And to this
end, it provides, inter alia, that
[e]xcept as specifically recognized by or provided in Code Section
51-3-25, an owner of land who either directly or indirectly invites or
permits without charge any person to use the property for recreational
purposes does not thereby . . . [a]ssume responsibility for or incur
liability for any injury to person or property caused by an act of
omission of such persons.17
But as we have previously explained, the Recreational Property Act does not create
a statutory waiver of a county’s sovereign immunity.18
16
S. Gwinnett Athletic Ass’n Inc. v. Nash, 220 Ga. App. 116, 117 (1) (469 SE2d
276) (1996); see OCGA § 51-3-20 (“The [codified] purpose of this article is to
encourage owners of land to make land and water areas available to the public for
recreational purposes by limiting the owners’ liability toward persons entering
thereon for recreational purposes.”).
17
OCGA § 51-3-23 (3) (emphasis supplied).
18
See Norton v. Cobb Cty., 284 Ga. App. 303, 305-06 (1) (643 SE2d 803)
(2007) (physical precedent only in Div. 2-3) (concluding that trial court incorrectly
found an implied waiver of sovereign immunity in the Recreational Property Act); see
also DeKalb State Ct. Probation Dep’t v. Currid, 287 Ga. App. 649, 653 (1) (653
SE2d 90) (2007) (“In Norton, we considered . . . the Recreational Property Act, and
. . . found no statutory waiver of sovereign immunity in an act that allowed personal
injury actions resulting from wilful or malicious behavior.” (footnotes omitted)).
Moreover, and as an aside, the “charge” that Ashby alleges she paid is not the type
8
Accordingly, because Ashby did not establish that the County waived its
sovereign immunity, the trial court erred in denying the County’s motion to dismiss
on this ground, and we reverse its ruling.
Judgment reversed. Rickman and Brown, JJ., concur.
that would permit her to recover under the Act anyway. See OCGA § 51-3-21 (1)
(“‘Charge’ means the admission price or fee asked in return for invitation or
permission to enter or go upon the land.”); Nash, 220 Ga. App. at 117-18 (1) (“In the
current case, the Association charges a little league registration fee, although this fee
is waived as to any child in need of free service. The fee covers expenses such as
uniforms for the children, umpires, lights, water and sanitation. Because the fee is
needed to defray the costs of operating the league, and is not an admission price
required for permission to enter onto the land, it is not a charge to the public as
contemplated by the Act.”).
9