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Dorn v. Georgia Department of Behavioral Health and Developmental Disabilities

Court of Appeals of Georgia

October 29, 2014

DORN et al.
v.
GEORGIA DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL DISABILITIES

Tort Claims Act. Fulton State Court. Before Judge Edlein.

Michael A. Mills, Troy A. Kiber, Rowen & Klonoski, Sharon L. Rowen, for appellants.

Samuel S. Olens, Attorney General, Loretta L. Pinkston, Kirsten S. Daughdril, Senior Assistant Attorneys General, for appellee.

ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.

OPINION

Page 386

Ellington, Presiding Judge.

Paul Dorn, individually and as administrator of the estate of his son, Brooks Cameron Dorn (the " decedent" ), sued the Georgia Department of Behavioral Health and Developmental Disabilities (the " Department" ) for damages, contending that the Department's negligence was the proximate cause of the decedent's death. The trial court dismissed Dorn's complaint for failure to comply with the ante litem notice provisions of the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (" GTCA" ) in that Dorn did not specify the amount of the loss claimed. On appeal, Dorn contends that he complied with the ante litem notice requirements notwithstanding that the notice did not state the dollar amount of the loss claimed and that the trial court therefore erred in dismissing his complaint. For the reasons that follow, we affirm.

The record shows that the decedent committed suicide on April 5, 2011, while on conditional release from a psychiatric facility operated by the Department. On January 9, 2012, Dorn presented, via certified mail, return receipt requested, his " Ante Litem Notice of Wrongful Death Claim" to the Risk Management Division of the Georgia Department of Administrative Services, and he provided a copy of the notice to the Department. Dorn's notice did not state the dollar amount of the loss claimed. Rather, the notice stated that " [t]he amount of the loss suffered" is the " [m]onetary value of [the decedent's] life in an amount sufficient to appropriately penalize State's deliberately indifferent, negligent breach of State's duty, and also in an amount sufficient to appropriately penalize State's deliberately indifferent, negligent violation of [the decedent's] rights."

On March 28, 2013, Dorn filed suit against the Department to recover damages for personal injuries and wrongful death allegedly caused by the negligent acts or omissions of the Department. Contemporaneously with its answer, the Department filed a motion to dismiss the complaint for, among other things, Dorn's failure to comply with the ante litem notice requirements set forth in the GTCA. The trial court dismissed the complaint because Dorn's ante [329 Ga.App. 385] litem notice did not specify the monetary amount of loss claimed and so failed to comply with OCGA § 50-21-26 (a) (5) (E).

Page 387

The GTCA is " a limited waiver of the State's sovereign immunity, crafted, as is constitutionally authorized, by our Legislature, and not subject to modification or abrogation by our courts." (Citation omitted.) Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824 (653 S.E.2d 729) (2007). Among other things, " [t]he GTCA requires a party with a potential tort claim against the State to provide the State with notice of the claim prior to filing suit thereon. OCGA § 50-21-26." Id. at 823. The ante litem notice requirements serve the purpose of " ensur[ing] that the state receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit." Williams v. Ga. Dept. of Human Resources, 272 Ga. 624, 625 (532 S.E.2d 401) (2000).

A claimant must strictly comply with the notice provisions as a prerequisite to filing suit under the GTCA, and substantial compliance is not sufficient. Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. at 824; Ga. Dept. of Transp. v. Griggs, 322 Ga.App. 519, 520 (745 S.E.2d 749) (2013). However, " the rule of strict compliance does not demand a hyper-technical construction that would not measurably advance the purpose of the GTCA's notice provisions." (Citation omitted.) Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. at 824.

" 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." Bd. of Regents of the Univ. System of Ga. v. Myers, 295 Ga. 843, 845 (___ S.E.2d ___) (2014). " We review de novo a trial court's ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity." (Citation and punctuation omitted.) Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga.App. 505, 509 (3) (672 S.E.2d 471) (2009).

Pertinent to this dispute, the GTCA requires that a written notice of claim " shall state, to the extent of the claimant's knowledge and belief and as may be practicable under the circumstances, ... [t]he amount of the loss claimed[.]" OCGA ยง 50-21-26 (a) (5) (E). Dorn contends that he complied with this provision because the GTCA does not require that the notice state the dollar amount of the claim, and that he stated the amount of the loss to the extent of his knowledge ...


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