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Wyno v. Lowndes County

Supreme Court of Georgia

February 18, 2019

WYNO
v.
LOWNDES COUNTY et al.

          BETHEL, JUSTICE.

         In this case, Jason Wyno challenges the constitutionality of former OCGA § 4-8-30, a portion of the Responsible Dog Ownership Law which purports to exempt local governments and their employees from liability arising from their enforcement of, or failure to enforce, that law and local dog-control ordinances. Wyno argues that this statute impermissibly extends the official immunity of local government employees provided in Article I, Section II, Paragraph IX (d) of the Georgia Constitution of 1983 ("Paragraph IX (d)") because former OCGA § 4-8-30 is not "a State Tort Claims Act."

         However, we do not reach that constitutional question in this case because we determine that the trial court erred in its preliminary determination that the relevant duties imposed by the Responsible Dog Ownership Law and the Lowndes County Animal Control Ordinance in effect at the time of the incident giving rise to this suit were ministerial in nature. We determine instead that the record before us demonstrates that the relevant acts of the County Employees were discretionary. Moreover, because the record before us does not contain evidence that the individual defendants acted with malice or intent to injure, they are protected from Wyno's lawsuit by the official immunity provided by Paragraph IX (d). We therefore affirm the grant of summary judgment in favor of the defendants, although for reasons different than relied upon by the trial court.

         1. Background

         On December 8, 2011, Misty Wyno was attacked and killed by a dog owned by one of her neighbors. In the years leading up to the attack, numerous complaints about dogs at the neighbor's address had been filed with the Lowndes County Animal Control office.

         Following Misty Wyno's death, Jason Wyno brought a wrongful death action against the dog's owners, Lowndes County, and four individual Lowndes County Animal Control employees-Weyman Bozeman, Eric Sharp, Emanuel Shaw, and Linda Patelski ("County Employees")-in both their official and individual capacities. The complaint alleged that Lowndes County and the County Employees negligently failed to perform ministerial duties, negligently failed to provide police protection, negligently created and failed to abate a nuisance, were negligent in their control of allegedly dangerous dogs, and were negligent per se by violating several provisions of the Lowndes County Animal Control Ordinance. The complaint also made a demand for punitive damages and alleged that Lowndes County and the County Employees "acted with actual malice and/or an intent to injure in repeatedly refusing to investigate or take any action with regards to the dangerous dogs[.]"

         Lowndes County asserted the defense of sovereign immunity both for itself and for its employees in their official capacities. The trial court dismissed Lowndes County and the County Employees on that basis.

         Additionally, Lowndes County and the County Employees asserted that they were immune from liability due to the provisions of the Responsible Dog Ownership Law in effect at the time, specifically former OCGA § 4-8-30 (2011).[1] The trial court dismissed the suit against the County Employees in their individual capacities, finding that former OCGA § 4-8-30 barred the action against any party except the dog's owners.

         The Court of Appeals affirmed the dismissal of the action against Lowndes County and the County Employees in their official capacities. See Wyno v. Lowndes County, 331 Ga.App. 541 (771 S.E.2d 207) (2015). However, the Court of Appeals reversed the dismissal of the action against the County Employees in their individual capacities, noting that the trial court had failed to rule specifically on Wyno's constitutional challenge to former OCGA § 4-8-30. Wyno, 331 Ga.App. at 546 (3) (b).

         Following remand for that purpose, and after the parties conducted discovery, the trial court denied the County Employees' motion for summary judgment. In so doing, it determined that the County Employees' duties relevant to this action were ministerial in nature, thus subjecting them to personal liability for negligence. However, in a later order, the trial court found former OCGA § 4-8-30 to be constitutional and again dismissed each claim against the County Employees in their individual capacities.

         Here, we treat the order of dismissal in favor of the County Employees as a ruling on a motion for summary judgment. We do so because, although the trial court dismissed the suit based on assertions in the pleadings of Lowndes County and the County Employees regarding the effect of former OCGA § 4-8-30, it would not have reached that question had it granted the County Employees' motion for summary judgment. Such motion, in the first instance, prompted the trial court to consider matters outside the pleadings, including depositions given by Wyno and each of the County Employees relevant to the question of whether the duties imposed by the Lowndes County Animal Control Ordinance were discretionary or ministerial in nature. See Johnson v. RLI Ins. Co., 288 Ga. 309, 310 (704 S.E.2d 173) (2010).

         2. Official Immunity for Ministerial and Discretionary Acts

         Whether a public employee is afforded immunity is governed in part by whether the act in question is ministerial or discretionary. As this Court has previously discussed,

[U]nder the English common law, although the government was cloaked with sovereign or governmental immunity, public officials and employees were personally liable for torts they committed in the performance of their duties. However, over the years in this country the trend has been in the opposite direction. As a result, there has developed what has become known as qualified immunity or official immunity for public officials and employees. The doctrine of official immunity, developed primarily in Georgia through case law, provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are willful, wanton, or outside the scope of his authority.

(Citations omitted). Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 S.E.2d 476) (1994).

         On November 6, 1990, the people of Georgia ratified an amendment to the 1983 Constitution which incorporated the concept of official immunity for discretionary and ministerial acts and provided the General Assembly with a means of varying that immunity by legislative act. The resulting provision, Article I, Section II, Paragraph IX (d), provides that

Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies[2] may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.

         That provision took effect in 1991, and "[w]ith passage of the 1991 amendment, the immunity enjoyed by public officers and employees was made part of the State Constitution." Gilbert, 264 Ga. at 752 (6). Such immunity, as we have previously held, "looks a lot like" the body of decisional law on official immunity that predated the 1991 ...


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