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
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.
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
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[.]"
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.
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). 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
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).
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.
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).
Official Immunity for Ministerial and Discretionary
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).
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 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.
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