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Heinisch v. Bernardini

United States District Court, S.D. Georgia, Savannah Division

November 12, 2014

AMANDA HEINISCH, Individually and on behalf of her Minor child, K.S., Plaintiff,


G.R. SMITH, Magistrate Judge.

Amanda Heinisch, individually and on behalf of her minor child, K.S., brought this action against three defendants, including the clerk of a state court and the clerk's county employer. Doc. 1, as amended, doe. 26.[2] Claiming immunity, the clerk and county move to dismiss plaintiffs' case against them, doe. 32, and to stay discovery in the meantime. Doe. 33. The dismissal motion is before the district judge, while the stay motion will be reached here.

Some background: Defendant Alex Christopher Bernardini sexually assaulted K.S., who was under 16, and he later pled guilty to child molestation charges. Doc. 26 at 2 (amended complaint). After his arrest, the Clerk of Court for Bryan County, Georgia, Rebecca G. Crowe, failed to redact from her court's docket[3] K.S.'s identifying information. "This [court] information was disseminated to the public, and [p]laintiffs were thereby harmed." Doc. 34 at 1.

Plaintiffs bring intentional tort claims (assault, battery, etc.) against Bernardini, plus emotional distress claims against Crowe in both her individual and official capacity (thus, plaintiffs sue the county itself). Doc. 32-1 at 3; doc. 34 at (plaintiffs' dismissal response brief reiterating that they are suing Crowe in both capacities and thus agreeing with Crowe that to sue her in her official capacity is to sue the county).[4] The moving defendants cite Wallace v. Greene County, 274 Ga.App. 776, 778 (2005) (a suit against a county employee in his official capacity is in reality a suit against the county) and argue that the claims against Crowe are subject to the county's defenses. Hence, they contend, the plaintiffs' official capacity claims are barred by sovereign immunity. Doc. 32-1 at 3. Discovery, defendants conclude, should be stayed until the immunity issue raised by the dismissal motion is resolved. Doe. 33 at 2-4.

Not so fast, plaintiffs respond. Doe. 35. They remind that they are still suing Crowe in her individual capacity, as well as Bernardini. And in suing Crowe in her official capacity, they assert that the county may have insurance coverage which, under Georgia law, could support a waiver of defendants' sovereign immunity to the extent of that coverage.[5] So, plaintiffs conclude, discovery is necessary on that score. Doc. 34 at 5; doc. 35 at 2-3.

But in pursuing Crowe in her individual capacity, plaintiffs fail to state a substantive claim. Again, they are suing Crowe (hence, the county) for what is, at bottom, a government official's alleged negligent performance of a ministerial act.[6] The only negligence-based duty pled here ties into the alleged § 49-5-40(b) duty of government officials to maintain the confidentiality of records pertaining to child abuse (a statute which they assume applies to court clerks). See supra n. 3 (exploring that duty). But plaintiffs raise no intentional, privacy-invading, "public disclosure" tort against Crowe (and the county, via respondeat superior, doe. 26 at 5), as explored supra n. 6. Instead they plead only negligence, negligence per Se, and negligent infliction of emotional distress. Doe. 26 at 4-5.

They appear to have pled their way out of court. A "negligent infliction" claim must include an allegation of a pecuniary loss and injury, but none has been pled here. Oliver v. McDade, 328 Ga.App. 368, 370 (2014) ("a plaintiff may... recover damages for emotional distress flowing from a defendant's negligence, notwithstanding the absence of physical injury. But these damages are recoverable only if the plaintiff has suffered a pecuniary loss and has suffered an injury to the person, albeit not physical.") (emphasis added; quotes and cite omitted). Doc. 26 at 4-6 (pleading only that plaintiffs "have been harmed."). And if "[s]harp or sloppy business practices" don't make the intentional infliction grade, Souza v. JP Morgan & Chase Co., 2014 WL 1338762 at * 5 (N.D.Ga. Apr. 2, 2014), then sloppy docketing by a court clerk won't either. So even if plaintiffs thought about amending their Complaint to include an intentional infliction count, it would still fail.

That leaves plaintiffs' negligence and negligence per se [7] claims. Doc. 26 at 4 (Counts I & II). Yet, they make no demand for the nominal or compensatory damages that must be pled for unintentional torts. Doc. 26 at 5-6. Instead, they raise only a punitive damages claim, which requires an intentional tort - something not pled. Doc. 26 at 4-5. And "negligence, even including gross negligence is insufficient to support a claim for punitive damages." Boeing Co. v. Blane Intl. Group, 276 Ga.App. 672, 676 (2005), cited in Chaney v. Harrison & Lynam, LLC, 308 Ga.App. 808, 819 (2011); TRIAL HANDBOOK FOR GEORGIA LAwWYERS § 33:7 (3rd ed. Dec. 2013).[8] Since "a tort claim must fail where liability is established but no damages can be shown, " Blackford v. Wal-Mart Stores, Inc., 912 F.Supp. 537, 539 (S.D. Ga. 1996), it follows that negligence claims must fail where no recoverable damages have even been pled (again, plaintiffs seek no nominal or compensatory damages, doe. 26 at 5-6).

Upon preliminary peek at the dismissal motion, [9] then, this case will probably be dismissed against these defendants. The motion to stay discovery in this case is therefore GRANTED. Doc. 33. The Court does not pass on discovery against Bernardini, since the stay motion does not concern him.


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