CITY OF ATLANTA et al.
Certiorari to the Court of Appeals of Georgia -- 325 Ga.App. 481.
Cathy Hampton, Laura S. Burton, for appellants.
Charles H. McAleer, for appellee.
Dubberly & McGovern, Joseph D. McGovern, Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard K. Strickland, Paul M. Scott, amici curiae.
THOMPSON, Chief Justice. All the Justices concur.
Thompson, Chief Justice.
We granted a petition for writ of certiorari in this case to determine whether the Court of Appeals used the proper analysis when it determined that the provision of medical care by the City of Atlanta to inmates in its custody was a ministerial function for which the City of Atlanta's sovereign immunity had been waived. See City of Atlanta v. Mitcham, 325 Ga.App. 481 (751 S.E.2d 598) (2013). Because we find that the care of inmates in the custody of a municipal corporation is a governmental function for which sovereign immunity has not been waived, we reverse.
Appellee Barto Mitcham filed a negligence action against appellants, the City of Atlanta (the " City" ) and George Turner, in his official capacity as the Chief of Police for the City of Atlanta Police Department, alleging that Mitcham was seriously injured as a result of appellants' failure to provide him necessary medical treatment while in their custody. Mitcham specifically alleged that after he was arrested by the City of Atlanta Police Department, he became ill because of low blood sugar associated with diabetes. He was taken to the hospital, and upon his discharge and release back into the custody of the City, Atlanta Police Department officers were informed of his diabetic condition and the need to monitor and regulate his insulin levels. He alleged they failed to do so, causing him further illness and serious and permanent injuries.
Appellants answered the complaint and filed a joint motion to dismiss on sovereign immunity grounds. See OCGA § 9-11-12 (b) (6). The trial court denied the motion, finding that Mitcham's claims were not barred by sovereign immunity because the provision of " medical attention and/or care for an inmate is a ministerial act which does not involve the exercise of discretion." Relying primarily on its opinion in Cantrell v. Thurman, 231 Ga.App. 510 (499 S.E.2d 416) (1998), a case involving claims against a county sheriff and the constitutional waiver of the sovereign immunity of the state and its departments and agencies under Article I, Section II, Paragraph IX (d) of the Georgia Constitution, the Court of Appeals affirmed, holding that " the provision of medical care to inmates in the City's and Turner's [296 Ga. 577] custody was a ministerial act and, because it was a ministerial act, sovereign immunity was waived pursuant to OCGA § 36-33-1 (b)."  We granted certiorari.
1. A motion to dismiss for failure to state a claim should not be granted unless the allegations of the complaint demonstrate to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support thereof. Anderson v. Flake, 267 Ga. 498, 501 (2) (480 S.E.2d 10) (1997). Appellants moved to dismiss Mitcham's claims on the ground of sovereign immunity. Under Georgia law, municipal corporations are protected by sovereign immunity pursuant not to Article I of the Constitution but rather Article IX, Section II, Paragraph IX, unless that immunity is waived by the General Assembly. See Godfrey v. Ga. Interlocal Risk Mgmt. Agency, 290 Ga. 211, 214 (719 S.E.2d 412) (2011) (absent legislative scheme providing for specific waiver, there is no waiver of municipal sovereign immunity). See also City of Thomaston v. Bridges, 264 Ga. 4 (439 S.E.2d 906) (1994). With particular regard to municipal corporations, our General Assembly has enacted OCGA § 36-33-1 which reiterates that " it is the public policy of the State of ...