BARNES, P. J., RICKMAN and SELF, JJ.
Cowart, as Administratrix of the Estate of J. C., appeals the
trial court's order dismissing her claims against the
Georgia Department of Human Services (DHS) in connection with
the tragic death of one-year-old J. C. She contends that
the trial court erred by ruling that her claims were barred
by sovereign immunity. For reasons that follow, we affirm in
part and reverse in part.
review de novo a trial court's grant of a motion to
dismiss on sovereign immunity grounds, bearing in mind that
the party seeking to benefit from the waiver of sovereign
immunity has the burden of proof to establish waiver."
(Citation and punctuation omitted.) Pelham v. Bd. of
Regents of Univ. System of Ga., 321 Ga.App. 791 (743
S.E.2d 469) (2013). "Because a motion to dismiss on
sovereign immunity grounds is based upon the trial
court's lack of subject matter jurisdiction, the trial
court is entitled to make factual findings necessary to
resolve the jurisdictional issue." (Citations omitted.)
Id. at 791, n.1. Here, the trial court did not make
any factual findings, and we therefore view the factual
allegations in the complaint as true to determine whether the
complaint shows with certainty that Cowart would not be
entitled to relief under any state of facts that could be
proven in support of her claim. See James v. Ga. Dept. of
Pub. Safety, 337 Ga.App. 864, 865 (1) (789 S.E.2d 236)
(2016); McCoy v. Ga. Dept. of Admin. Svcs., 326
Ga.App. 853, n.1 (755 S.E.2d 362) (2014).
initial complaint, Cowart alleged that in August 2013, J.
C.'s uncle contacted a case manager with the Bartow
County Department of Family and Children Services (DFCS) and
informed her that J. C.'s mother was using
methamphetamine and that J. C. was in imminent danger of
harm. J. C.'s uncle also informed the case manager where
J. C.'s mother could be found. Cowart alleged that the
case manager took no action to address the report that J. C.
was in danger, in violation of DFCS's established
policies and protocols, and asserted claims against DHS for
negligence, wrongful death, and violation of the Georgia Open
Records Act. In her initial complaint, Cowart also alleged
that J. C.'s mother and her boyfriend, "while under
the influence of  methamphetamine and other illegal drugs
committed unspeakable and horrible acts of torture,
barbarism, cruelty, violence, molestation, and savagery upon
infant [J. C.], " and that "[a]fter four months of
enduring the constant torture and as a direct result thereof,
[J. C.] died."
moved to dismiss the complaint for lack of subject matter
jurisdiction based on the assault and battery exception to
the State's waiver of sovereign immunity. In response,
Cowart amended her complaint, deleting the allegations that
J. C.'s mother and her boyfriend committed "acts of
torture, barbarism, cruelty, violence, molestation, and
savagery" upon J. C., resulting in her death, and
replacing them with allegations that J. C.'s mother and
her boyfriend were negligent in failing to provide care and
support and timely medical treatment and that "[a]fter
four months of enduring constant harm and neglect caused by
the . . . negligent acts and omissions of [J. C.'s mother
and her boyfriend], [J. C.] died."
trial court dismissed Cowart's claims for damages
resulting from a battery on J. C. under the assault and
battery exception to the State's waiver of sovereign
immunity, and dismissed Cowart's claims for damages
caused by negligence and neglect under the discretionary
function exception. Cowart only appeals the trial court's
ruling on her claims for damages caused by negligence.
the Georgia Constitution, sovereign immunity extends to the
state and all of its departments and agencies. Ga. Const. of
1983, Art. I, Sec. II, Par. IX. The General Assembly may
waive the state's sovereign immunity from suit by
enacting a State Tort Claims Act. Id. The Georgia
Tort Claims Act provides that, subject to certain exceptions
and limitations, "[t]he state waives its sovereign
immunity for the torts of state officers and employees while
acting within the scope of their official duties or
employment and shall be liable for such torts in the same
manner as a private individual or entity would be liable
under like circumstances." OCGA § 50-21-23 (a). One
of the exceptions to the State's waiver of sovereign
immunity provides that the State shall have no liability for
losses resulting from assault and battery. OCGA §
50-21-24 (7). Under that exception, "if a
plaintiff's injury was caused by an assault and battery
committed by a third party, the state is immune from suit
even if the assault and battery was facilitated by or
resulted from the prior negligent performance of a state
officer or employee." (Citation omitted.)
Pelham, 321 Ga.App. at 796 (2). Cowart does not
appeal the trial court's ruling on the basis of immunity
for losses resulting from assault and battery. We therefore
affirm the trial court's ruling that OCGA § 50-21-24
(7) bars Cowart from recovering for losses resulting from
assault and battery.
contends that the trial court erred by concluding that her
claims are barred by the discretionary function exception to
the State's waiver of sovereign immunity, which provides
that the State shall have no liability for losses resulting
from "[t]he exercise or performance of or the failure to
exercise or perform a discretionary function or duty on the
part of a state officer or employee, whether or not the
discretion involved is abused." OCGA § 50-21-24
(2). A discretionary function or duty is defined as "a
function or duty requiring a state officer or employee to
exercise his or her policy judgment in choosing among
alternate courses of action based upon a consideration of
social, political, or economic factors." OCGA §
50-21-22 (2). "[F]or the 'discretionary
function' exception to apply, it must be shown that a
state officer or employee was afforded discretion with
respect to the conduct that is alleged to amount to a tort,
[and] that an exercise of the discretion afforded amounts to
a policy judgment . . . based upon a consideration of social,
political, or economic factors." (Citations and
punctuation omitted.) Ga. Dept. of Human Svcs. v.
Spruill, 294 Ga. 100, 106 (2) (751 S.E.2d 315) (2013).
first consider the extent to which DFCS policy afforded
discretion to the case manager. Here, although the complaint
alleges that DFCS policies and protocols required the case
manager to conduct an investigation into the report that J.
C. was in danger, the existing record lacks evidence that
would allow us to determine if the case manager had the
discretion to perform absolutely no investigation, as alleged
in the complaint. Without such evidence, we cannot determine
whether the discretionary function exception applies here.
Accordingly, we conclude that the trial court erred in
granting DHS's motion to dismiss under OCGA §
50-21-24 (2) on the existing record. See Grant v. Ga.
Forestry Comm., 338 Ga.App. 146, 156 (4) (789 S.E.2d
affirmed in part and reversed in part.
Barnes, P.J., and Self, J., concur.