THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, 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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
May 5, 2020
In the Court of Appeals of Georgia
A20A0140. GREEN v. BALDWIN COUNTY BOARD OF
COMMISSIONERS et al.
MCFADDEN, Chief Judge.
In this personal injury action, Brenda A. Green seeks to hold Baldwin County
liable for injuries she alleges she sustained in a vehicle collision caused by the
negligence of an on-duty deputy sheriff. She named two defendants in the action: the
Baldwin County Board of Commissioners (hereinafter, the county) and deputy sheriff
Todd W. Blackwell in his official capacity. (She did not sue Blackwell in his
individual capacity.) The trial court granted summary judgment to the defendants, and
we find no error. As a matter of law a county cannot be held vicariously liable for the
actions of a deputy sheriff, and to the extent the claim against Blackwell can be
construed as a claim against his employer, the Baldwin County sheriff, Green did not
provide the sheriff with timely ante litem notice. So we affirm.
1. Facts and procedural background.
Viewed in the light most favorable to Green, as the party opposing summary
judgment, see McBee v. Aspire at West Midtown Apts., 302 Ga. 662, 663 (1) (807
SE2d 455) (2017), the evidence shows that on June 7, 2015, Green was in her vehicle,
stopped at an intersection, when a vehicle driven by Blackwell rear-ended her. Green
was injured in the collision. At the time of the collision, Blackwell was an on-duty
Baldwin County sheriff’s deputy.
Green filed her complaint on May 16, 2017. The record shows that she served
the complaint on the two named defendants: the Baldwin County Board of
Commissioners and Blackwell. The defendants moved for summary judgment on
March 30, 2018. At that time, the Baldwin County sheriff had not received any ante
litem notice or other notice of Green’s claim. Green ultimately provided the sheriff
with an ante litem notice on May 7, 2018.
2. Claim against the county.
As an initial matter, we note that the issue of whether a county board of
commissioners is itself an entity capable of being sued was not raised below, but the
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parties and the trial court analyzed the claim against the board as a claim against the
county. We do the same.
As a matter of law, the county is not vicariously liable to Green for the actions
of Blackwell, because “[i]t is well established that deputy sheriffs are employees of
the sheriff, not the county, and the county cannot be held vicariously liable as their
principal.” Cannon v. Oconee County, 353 Ga. App. 296, 299 (1) (835 SE2d 753)
(2019) (citation and punctuation omitted). Green cites several authorities for the
proposition that a claim against a sheriff or deputy sheriff should be considered a
claim against the county, but these authorities do not concern a county’s vicarious
liability for the actions of a sheriff or deputy sheriff. Instead, they concern whether
the sovereign immunity available to counties bars claims against sheriffs, deputy
sheriffs, and other individual tortfeasors in their official capacities. See, e.g., Gilbert
v. Richardson, 264 Ga. 744, 746 (2) n. 4 (452 SE2d 476) (1994); Marshall v.
McIntosh County, 327 Ga. App. 416, 419-420 (2) (759 SE2d 269) (2014); Ankerich
v. Savko, 319 Ga. App. 250, 252-253 (1) (734 SE2d 805) (2012); Strength v. Lovett,
311 Ga. App. 35, 38 (1) (714 SE2d 723) (2011).
2. Claim against Baldwin.
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To the extent Green’s claim against Blackwell in his official capacity may be
construed as a claim against his employer, the Baldwin County sheriff, the trial court
did not err in granting summary judgment because Green did not provide the sheriff
with ante litem notice of the claim within the one-year time period set forth in OCGA
§ 36-11-1. See Moats v. Mendez, 349 Ga. App. 811, 814-815 (2) (824 SE2d 808)
(2019); Davis v. Morrison, 344 Ga. App. 527, 531-532 (2) (810 SE2d 649) (2018).
Green criticizes our whole-court decision in Moats and tacitly invites us to overrule
it. We decline to do so, noting that the Moats decision is presently before our
Supreme Court on writ of certiorari. Mendez v. Moats, 2019 Ga. LEXIS 855 (2019).
Green argues that the period for providing ante litem notice should be tolled
under OCGA § 9-3-99, which governs the running of the limitations period in certain
tort claims brought by victims of alleged crimes. Our Supreme Court, however,
recently held that OCGA § 9-3-99 does not provide for the tolling of periods for
giving ante litem notice. See Dept. of Public Safety v. Ragsdale, __ Ga. __ (__ SE2d
__) (Case No. S19G0422, decided Feb. 28, 2020). Although the Ragsdale decision
addressed the ante litem notice requirements in Georgia’s Tort Claims Act, see
OCGA § 50-21-26 (a) (1), its rationale also applies here.
Judgment affirmed. Doyle, P. J., and Hodges, J., concur.
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