dissenting.
Because the majority significantly weakens the holding of Georgia Forestry Commission v. Canady1 that the State is entitled to sovereign immunity for the negligent acts of its employees when implementing or executing law enforcement policy, I respectfully dissent.
Although the General Assembly has generally waived the State’s sovereign immunity for “the torts of state officers and employees while acting within the scope of their official duties or employment,”2 it also expressly exempted from that waiver any liability for “losses resulting from . . . the failure to provide, or the method of providing, law enforcement, police, or fire protection.”3 In analyzing *208this exception to the waiver of sovereign immunity in Canady, we construed OCGA § 50-21-24 (6) to mean that sovereign immunity applied not only “to the making of policy decisions by state employees and officers including those relating to the amount, disbursement, and use of equipment and personnel to provide law enforcement, police or fire protection services,” but also “to the acts and omissions of state employees and officers executing and implementing those policies.”4 The majority eviscerates the latter aspect of Canady by holding that the State is not immune from liability because Trooper Phillips performed negligently in running radar under the facts of this case and thus could not have been acting pursuant to policy.5 A fair reading of Canady and the record do not support the majority’s conclusion.
The majority omits any discussion of applicable policies, and there are several that directed Trooper Phillips’s actions. First, OCGA § 35-2-32 (b) specifically provides that it is a primary duty of state patrol officers such as Trooper Phillips to “patrol the public roads and highways of this state” and to engage in “traffic enforcement.” Second, Policy No. 17.14.4 of the Policy Manual of the Department of Public Safety directs state troopers to engage in activities such as that specified in OCGA § 35-2-32. Third, Policy No. 6.08.02 provides that the State Patrol places radar devices in its patrol cars to enforce speed limits and “save lives by reducing crashes.” The State Patrol also has a policy of permitting troopers to use only the types of radar devices specifically approved by it. It is undisputed that the radar devices the State Patrol places in its vehicles permit a trooper to track the speed of multiple vehicles while the trooper’s car is moving and that the trooper must then monitor his radar display on the dashboard to track the cars and determine which of the cars is speeding. Fourth, Policy No. 11.01.2 notes that “traffic law enforcement is a primary responsibility” of the Department and grants troopers “latitude in determining types of enforcement action to be taken ... to ensure the safety of the motoring public [and] reduce the number and severity of traffic crashes.”
Based on the foregoing, the record shows that Phillips was acting pursuant to specific policies directing him to enforce traffic laws, was using a device put in place by a State Patrol policy, and was exercising the discretion granted to him by policy to determine the appropriate type of enforcement action to take. The record thus shows that Phillips’s actions were closely related to implementing policy when he negligently caused the accident in question. In the *209language of the majority opinion, Ms. Davis’s injuries “resulted from” the execution of a specific set of policies. To hold that the exception of OCGA § 50-21-24 (6) does not apply in this case would permit “an indirect attack [on policy] via a lawsuit brought against a state governmental entity based on the alleged negligence of a state employee providing police, law enforcement, or fire protection pursuant to policy.”6 Contrary to the majority’s assertion, there is nothing in this language from Canady that limits immunity to defects in the policy itself.7
Although the majority states that Phillips “may have been implementing policy when he caused the collision,”8 the majority concludes that the accident did not “result from” the implementation of policy because Phillips was negligent in failing to maintain a proper lookout while he was driving. According to the majority, Phillips was simply negligent and thus “clearly was not ‘acting pursuant to policy.’ ”9 For this reason, the majority concludes the State is not entitled to immunity. Acting negligently and pursuant to policy, however, are not mutually exclusive concepts. As we stated in Canady, “negligent acts of employees acting pursuant to policy would be subject to the application of sovereign immunity.”10
Moreover, contrary to the majority’s assertion, Beckley v. Crabtree,11 on which this Court relied in Canady, does not support the majority’s holding. In fact, its reasoning supports a holding of immunity for Phillips’s conduct. In Beckley, after a sheriff had completed an arrest and was putting his shotgun in the trunk of his car, the shotgun accidentally discharged, injuring another person. The West Virginia Supreme Court held that the phrase
“the method of providing police, law enforcement or fire protection” contained in W.Va. Code § 29-12A-5 (a) (5) refers to the formulation and implementation of policy related to how police, law enforcement or fire protection should be provided. Resolution of the issue of whether a loss or claim occurs as a result of the method of providing law enforcement protection requires determining whether the allegedly negligent act resulted from the manner in which a *210formulated policy regarding such protection was implemented.12
The majority interprets the last sentence of this quotation as follows: “Under this test, if the allegedly negligent act resulted from the manner in which a policy regarding police protection was implemented, the alleged losses are not the result of that implementation and therefore, the state is not immune from liability.”13 As I will demonstrate, the majority completely misreads Beckley.
In Beckley, the court held that the accidental discharge of the shotgun did not occur during the implementation of a policy and could not be considered a method of providing law enforcement.14 The court’s reasoning, omitted from discussion by the majority, is as follows:
The methods employed by the law enforcement officers who detained and arrested the suspect were complete before the gun discharged. Sheriff Crabtree was simply returning a shotgun to the trunk of the car when the accident occurred. Although this incidental action occurred within the scope of employment, it was not so closely related or necessary to effectuating the arrest as to be considered a component of “the method of providing law enforcement protection.”15
Thus, the Beckley court would have concluded that the State was entitled to immunity if the shotgun’s discharge had occurred during the arrest. In the language of the court, the discharge would have been “closely related” and “necessary to effectuating the arrest,” and the employee’s “negligent act” would have “resulted from the manner in which a formulated policy regarding such protection was implemented.”16 As this discussion demonstrates, contrary to the majority’s statement of the Beckley test, the test actually provides immunity if the alleged negligent act “results from” the manner is which a policy regarding police protection is implemented.
The foregoing analysis of Beckley, on which we heavily relied in Canady, supports a finding of immunity in this case, as Trooper Phillips’s conduct was closely related to the implementation of policy. In addition, because Beckley did not provide immunity, it demonstrates the fallacy of the majority’s assertion that, if its position does *211not prevail, the result would be absolute immunity for any act of an employee providing law enforcement protection.17
The West Virginia test that the majority attributes to Beckley actually arose in the subsequent case of Smith v. Burdette.18 The Smith court construed West Virginia’s law enforcement exception not to apply to negligent acts of employees in executing policy and limited it to the decision-making and planning process in developing policy. The court disapproved Beckley in the process.19 In adopting its rule, Smith relied on Kansas’s narrow construction of its exception.20 Under the Smith test, if an alleged negligent act results from the manner in which an employee implements a policy regarding police protection, the State is not entitled to immunity. The problem for the majority is that this was not the test in Beckley, and in Canady, we specifically disapproved of Smith and Kansas’s narrow construction of its exception.21 In Canady, we noted that Kansas limited its exception to “ ‘basic [policy] matters [such] as the type and number of fire trucks and police cars considered necessary for the operation of the respective departments.’ ”22 We declined to follow Kansas’s narrow exception23 and were careful to adopt a rule that employees’ negligent acts in executing policy fall within the scope of our exception.24 Moreover, in footnote two of Canady, we specifically declined to follow Smith and held that “[u]nder our construction of West Virginia’s earlier position, negligent acts of employees acting pursuant to policy would be subject to the application of sovereign immunity while negligent acts of employees not acting pursuant to policy would not.”25 The majority attempts to sidestep the explicit language that the negligent acts of an employee in implementing policy are absolutely entitled to immunity by stating that the negligence to which we were referring was not really the negligence of the employee but the negligence in formulating policy.26 This sleight of hand is at odds with the plain language we used in Canady.
The majority also improperly relies on the Texas Supreme Court’s decision in Texas v. Terrell27 and our discussion of it in Canady. In Canady, to support our holding that the exception to the *212waiver of sovereign immunity set forth in OCGA § 50-21-24 (6) was applicable to acts of state employees “executing and implementing” policies, we quoted a sentence from Terrell that provided the Texas exception covered “ ‘those acts . . . which constitute the execution of or the actual making of those policy decisions.’ ”28 This is the only time the word “execution” or any of its variations or synonyms (such as implementation) appears in the Terrell opinion, and the Texas court did not explain the meaning of the word. Later Texas cases have clarified that the exception applies only to the formulation of policy and not its implementation by state employees.29 Thus, Terrell, as it has been construed, is at odds with the clear rule we adopted in Canady for applying our exception to the negligent acts of employees in executing and implementing policy.
Although I share the majority’s concern for striking the proper balance between protecting the State treasury and the inherently unfair results that can occur in the strict application of sovereign immunity,30 the majority’s position strikes the balance too far to the side of harming the State treasury. As stated in OCGA § 50-21-21 (a), State government does not have flexibility in exerting control over its exposure to liability. Instead, it “must provide a broad range of services and perform a broad range of functions throughout the entire state, regardless of how much exposure to liability may be involved.” Under the majority’s position, the State treasury will be exposed to tremendous liability if, during for the hundreds or thousands of times per day that State troopers act pursuant to policies regarding the use of their equipment and the execution of their duties, one or more of the troopers acts negligently. Under the dissent’s position, the State treasury will be protected when State troopers’ actions are closely related or necessary to the execution of policy, but will not be protected for the inevitable negligence that will arise when their actions are not closely related to executing policy.31
For the foregoing reasons, I dissent to the majority opinion.
280 Ga. 825 (632 SE2d 105) (2006).
OCGA § 50-21-23 (a).
OCGA § 50-21-24 (6).
Canady, 280 Ga. at 830.
Majority opinion, p. 207.
Canady, 280 Ga. at 830.
Majority opinion at 206.
Majority opinion at 204.
Majority opinion at 206.
Canady, 280 Ga. at 830, n. 2.
428 SE2d 317 (W Va. 1993).
Id. at 321.
Majority opinion at 205.
Beckley, 428 SE2d at 321.
Id.
Id.
Majority opinion at 207.
566 SE2d 614 (W Va. 2002).
Id. at 618.
Id. at 617-618.
See Canady, 280 Ga. at 827-830 and 830, n. 2.
Id. at 827 (quoting Jackson v. City of Kansas City, 680 P2d 877, 890 (1984)).
Id. at 827-829.
Id. at 829-830.
Id. at 830.
Majority opinion at 205.
588 SW2d 784 (Tex. 1979).
Canady, 280 Ga. at 829 (quoting Terrell, 588 SW2d at 788).
Waco v. Hester, 805 SW2d 807, 812 (Tex. App. Waco 1990); Dallas v. Cox, 793 SW2d 701, 728 (Tex. App. Dallas 1990); Michael Shaunessy, Sovereign Immunity and the Extent of the Waiver of Immunity Created by the Texas Tort Claims Act, 53 Baylor L. Rev. 87, 185 (2001).
See Canady, 280 Ga. at 826; OCGA § 50-21-21 (a).
See Beckley, 428 SE2d at 321 (accidental discharge of gun after effectuating arrest not a “method of providing law enforcement”).