Sarah Kyle Ratliff v. Willie Marie McDonald

THIRD DIVISION

ANDREWS, P. J.,

DILLARD and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

March 18, 2014

In the Court of Appeals of Georgia

A13A1906. RATLIFF v. McDONALD et al.

MCMILLIAN, Judge.

Sarah Kyle Ratliff appeals the trial court’s order granting summary judgment

to Cobb County Sheriff Neil Warren and six of his deputies1 in Ratliff’s suit for

personal injuries arising out of an incident at the Cobb County Adult Detention

Center (the “ADC”). We affirm for the reasons set forth below.

1

Ratliff named six John Doe deputies as defendants in her complaint, but later

appeared to identify at least some of these “John Does” in her deposition. Those

individuals apparently were not named as defendants in the lawsuit, but counsel has

made an appearance, moved for summary judgment and submitted a responsive brief

on appeal on the deputies’ behalf. Moreover, Ratliff designated only portions of the

trial court record for inclusion on appeal, so we do not have a complete picture of the

proceedings below. Accordingly, we will treat the deputies as parties for purposes of

this appeal, and for ease of reference, we will refer to them collectively as the

“Deputies.”

[O]n appeal from a grant of a motion for summary judgment, we review

the evidence de novo in the light most favorable to the nonmovant to

determine whether a genuine issue of fact remains and whether the

moving party is entitled to judgment as a matter of law.

(Citation omitted.) Burnside v. GEICO Gen. Ins. Co., 309 Ga. App. 897, 898 (714

SE2d 606) (2011).

Viewed in the light most favorable to Ratliff, the evidence shows that on April

2, 2009, Ratiliff went to the ADC with her friend, Tansy Collor, to pick up Collor’s

boyfriend, Yusef Umrani, who was being released from custody. At the same time,

Willie Marie McDonald, Umrani’s ex-girlfriend and the mother of his children, also

arrived at the ADC to pick up Umrani.

McDonald had begun making phone calls and sending text messages to Collor

after Umrani went to jail. In these calls and text messages, McDonald threatened both

Ratliff and Collor and admonished that they were “sticking [their noses] in the wrong

business” and that they would “get what’s coming [to them].” McDonald told Collor

that she would send Umrani to jail before she let Collor have him and that she would

kill Collor. As a result, Ratliff and Collor were concerned about what McDonald

might do that day when they saw her at the ADC.

2

Ratliff and Collor went inside one of the ADC’s buildings (the “First

Building”) to determine where in the ADC complex Umrani would be released, and

they asked two deputies for help, explaining that the mother of Umrani’s children was

outside and that they had previous problems with her. The deputies told the women

that they could not help, but directed them to the Visitor’s Center, where the deputies

said Umrani would be released. Ratliff and Collor passed McDonald on the way out

the door, without speaking.

Collor walked up to the Visitor’s Center, while Ratliff drove there. Inside,

Ratliff and Collor asked Sergeant Alvin Sutherland and Deputy Chester Coachman

if Umrani would be released there, but the officers told them that Umrani would be

released in the First Building. Ratliff and Collor also told Sutherland and Coachman

that they needed help because McDonald was in the parking lot and they did not feel

safe. According to Ratliff, the officers said that they were familiar with McDonald

and that she was “crazy.” The officers told the women that they would follow them

back down to the First Building to make sure nothing happened.2

2

Sutherland and Coachman denied any prior knowledge of or experience with

McDonald. They also denied that Collor and Ratliff told them that McDonald had

threatened them, only that there might be a problem. They also said that they

instructed Ratliff and Collor to wait at the Visitor’s Center while they retrieved

Umrani so they could avoid contact with McDonald.

3

Ratliff and Collor left the Visitor’s Center and drove back down to the First

Building, while the two deputies drove over in their car. Ratliff parked, and the two

women got out of the car, while the deputies were paused at a stop sign. Meanwhile,

McDonald had backed her diesel truck out of a parking space and was sitting between

Ratliff’s and the deputies’ cars. Four other deputies were standing nearby. Ratliff said

that she screamed at Sutherland and Coachman that they needed to stop McDonald,

but the deputies standing in the area told the women that McDonald was not going

to do anything and the women could go ahead and cross over the parking lot to the

First Building.3 As Ratliff and Collor began walking toward the building, however,

Ratliff heard McDonald yell something about “killing,” and a deputy heard her yell,

“Bitch, if you go down there, I’ll run your ass over.” As Ratliff and Collor crossed

toward the building, McDonald “gunned it,” striking both women. Ratliff stated that

all of these events – from Ratliff and Collor leaving the Visitor’s Center to the

collision – happened within seconds.

3

Coachman said that he never saw or heard Ratliff and Collor wave, point, or

yell at them; nor did he hear McDonald threaten the two women.

4

Approximately two years later, Ratliff filed suit asserting claims for assault and

battery against McDonald4 and claims for negligence and recklessness against Warren

and the Deputies. At some point, she apparently refined her claims against the

Deputies to base them on theories of premises liability, recklessness and the public

duty doctrine and to base her claim against Warren on respondeat superior. Warren

and the Deputies subsequently filed a motion for summary judgment, which the trial

court granted. The trial court found that the claims against the Sheriff were barred

under the doctrine of sovereign immunity. The trial court also found that Ratliff failed

to establish elements of her claims for premises liability and recklessness.

Accordingly, the trial court found that Ratliff’s claims for respondeat superior against

the Sheriff also failed. Finally, the trial court concluded that Ratliff’s claims under the

public duty doctrine were barred under the doctrine of sovereign immunity.

1. Before considering the merits of Ratliff’s claims, we first address the issue

of whether Warren and the Deputies are protected by immunity. See Cameron v.

Lang, 274 Ga. 122, 124 (1) & 126 (3) (549 SE2d 341) (2001) (issues of sovereign and

official immunity are generally threshold issues to be decided before addressing the

merits of a plaintiff’s claims), citing Mitchell v. Forsyth, 472 U.S. 511, 526 (105 SCt

4

McDonald is not a party to this appeal.

5

2806, 86 LE2d 411) (1985) (official immunity is an “entitlement not to stand trial”

rather than “a mere defense to liability”) (citations omitted); McCobb v. Clayton

County, 309 Ga. App. 217, 217-218 (1) (a) (710 SE2d 207) (2011) (“Under Georgia

law, sovereign immunity is an immunity from suit, rather than a mere defense to

liability, and, therefore, whether a governmental defendant has waived its sovereign

immunity is a threshold issue.”) (citations omitted).

Ratliff brought suit against Warren only in his official capacity as the Sheriff

of Cobb County, asserting liability under the doctrine of respondeat superior. And

“[s]overeign immunity is the immunity provided to governmental entities and to

public employees sued in their official capacities.” Stone v. Taylor, 233 Ga. App. 886,

887-888 (1) (506 SE2d 161) (1998).

The doctrine of sovereign immunity, which the Sheriff has raised as a

defense, bars any claims against him in his official capacity. Under the

Georgia Constitution, as amended in 1991, “sovereign immunity extends

to the state and all of its departments and agencies. The sovereign

immunity of the state and its departments and agencies can only be

waived by an Act of the General Assembly which specifically provides

that sovereign immunity is thereby waived and the extent of such

waiver.” [Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).] Sovereign

immunity has been extended to counties and thus protects county

6

employees who are sued in their official capacities, unless sovereign

immunity has been waived.

(Citations omitted.) Butler v. Carlisle, 299 Ga. App. 815, 818 (1) (683 SE2d 882)

(2009). And “[any] waiver of sovereign immunity must be established by the party

seeking to benefit from that waiver.” (Citation and punctuation omitted.) McCobb,

309 Ga. App. at 218 (1) (a). Ratliff failed to carry this burden, however, as she does

not argue on appeal, nor did she establish below, that the General Assembly has

waived sovereign immunity for the claims raised in this case.5

Thus, Ratliff’s claim against Warren for respondeat superior is barred by

sovereign immunity. “A county may be liable for a county employee’s negligence in

performing an official function [only] to the extent the county has waived sovereign

immunity. Because in this case, there is no evidence that the county has waived its

sovereign immunity, the grant of summary judgment on the respondeat superior claim

was appropriate.” (Citation and punctuation omitted.) Russell v. Barrett, 296 Ga.

5

Although Ratliff’s complaint alleged that governmental immunity had been

waived under the Georgia Tort Claims Act (the “GTCA”), OCGA § 50-21-23,”[t]he

waiver of sovereign immunity contained in [the GTCA] does not apply to counties.

OCGA § 50-21-22 (5).” Currid v. DeKalb State Court Probation Dept., 285 Ga. 184,

188 (674 SE2d 894) (2009). And under the GTCA, sheriffs and their employees are

treated as county officers or employees. Nichols v. Prather, 286 Ga. App. 889, 893

(1) (650 SE2d 380) (2007).

7

App. 114, 120 (2) (673 SE2d 623) (2009). See also Robinson v. DeKalb County, 261

Ga. App. 163, 165 (2) (582 SE2d 156) (2003) (same); Anderson v. Cobb, 258 Ga.

App. 159, 160 (1) (573 SE2d 417) (2002) (same).6

Similarly, to the extent that Ratliff asserts claims against the Deputies in their

official capacities, those claims, too, are barred by sovereign immunity in the absence

of a waiver. Coffey v. Brooks County, 231 Ga. App. 886, 889 (2) (a) (500 SE2d 341)

(1998), rev’d in part on other grounds sub nom., Rowe v. Coffey, 270 Ga. 715, 716

(515 SE2d 375) (1999) (deputy entitled to sovereign immunity for claims asserted

against him in his official capacity); Hicks v. McGee, 283 Ga. App. 678, 681 (3) (642

SE2d 379 ) (2007) (same for clerks of courts). And as no waiver exists in this case,

any such claims would be barred.

Moreover, contrary to Ratliff’s argument, the public duty doctrine does not

create a separate exception to sovereign immunity; rather, it is an additional

restriction on governmental liability:

6

Additionally, we note the Georgia Supreme Court has applied sovereign

immunity to bar negligence claims arising from injuries incurred on county premises.

See also Wilmoth v. Henry County, 251 Ga. 643, 643-644 (1) (309 SE2d 126) (1983)

(county’s sovereign immunity barred claims in action for slip and fall at courthouse);

Revels v. Tift County, 235 Ga. 333, 335 (5) (219 SE2d 445) (1975) (same).

8

The public duty doctrine does not act as a judicially created exception

to the state’s sovereign immunity. Indeed, because sovereign immunity

has constitutional status, it cannot be abrogated by the judiciary. Rather,

the public duty doctrine simply defines the scope of a governmental

entity’s duty to provide police protection to individual citizens, and

provides that liability generally can exist only where there is a special

relationship between the injured party and the alleged governmental

tortfeasor. Thus, the [public duty] doctrine serves to restrict the liability

of governmental entities in those situations where sovereign immunity

has otherwise been waived or is inapplicable (e.g., where a municipality

has purchased liability insurance) – it does not act as an exception to

sovereign immunity where such immunity has not been waived.

(Citations omitted.) Dept. of Human Res. v. Coley, 247 Ga. App. 392, 394 (1), n. 9

(544 SE2d 165) (2000), disapproved of on other grounds by Georgia Dept. of Transp.

v. Heller, 285 Ga. 262, 266 (1) (674 SE2d 914) (2009). See also Rowe v. Coffey, 270

Ga. at 723 (Carley, J., dissenting) (“The incorporation of the public duty doctrine into

Georgia’s tort jurisprudence has resulted in a limitation on liability which is in

addition to that provided by constitutional governmental immunity”) (emphasis in

original). Accordingly, the doctrine creates a potential defense for a governmental

defendant, not a separate claim on which a plaintiff may assert liability. Because we

have found that sovereign immunity applies, we need not address the applicability of

9

the public duty doctrine to the claims against Warren or any claims against the

Deputies in their official capacity.

Accordingly, we affirm the trial court’s grant of summary judgment to Warren

and to the Deputies in their official capacities.7

2. Ratliff further seeks to recover from the Deputies, individually, based on her

allegations that they failed to protect her from McDonald’s assault.

We note the Deputies may also have had a potential immunity defense to those

claims.8

The doctrine of official immunity, also known as qualified immunity,

affords limited protection to public officers and employees for

discretionary actions taken within the scope of their official authority,

and done without wilfulness, malice or corruption. A public officer or

employee may be personally liable only for ministerial acts negligently

performed or acts performed with malice or an intent to injure. The

rationale for this immunity is to preserve the public employee’s

7

“[A] grant of summary judgment must be affirmed if right for any reason,

whether stated or unstated.” (Citation and punctuation omitted.) Pinnacle Properties

V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga. App. 94, 99-100 (1) (b) (735

SE2d 166) (2012).

8

Because Appellant designated only portions of the record for inclusion on

appeal, it is unclear whether the Deputies ever asserted the bar of official immunity.

10

independence of action without fear of lawsuits and to prevent a review

of his or her judgment in hindsight.

(Citations and punctuation omitted.) Burroughs v. Mitchell County, 313 Ga. App. 8,

10 (1) (720 SE2d 335) (2011). If the Deputies’ actions could be considered

discretionary, Ratliff would only be entitled to recover against them if she established

that they acted with actual malice or with the intent to injure. Adams v. Hazelwood,

271 Ga. 414, 414-415 (2) (520 SE2d 896) (1999) (“Actual malice” in context of

official immunity requires “a deliberate intention to do wrong” and “denotes express

malice or malice in fact”) (citation and punctuation omitted).

However, the Deputies did not assert official immunity in the motion for

summary judgment, and thus we cannot decide this appeal on that basis. See Maxwell

v. Mayor & Aldermen of the City of Savannah, 226 Ga. App. 705, 711 (4) (487 SE2d

478) (1997). Accordingly, we must address the merits of Ratliff’s claims because

those issues were raised on the Deputies’ behalf in the motion for summary judgment

and addressed by the trial court in its summary judgment order.

(a) Ratliff asserts that the Deputies are liable under OCGA § 51-3-1 for

negligence “in their unofficial role of keeping and maintaining the grounds of the

[ADC].” However, we agree with the trial court’s conclusion that Ratliff failed to

11

present evidence in support of each of the elements of her premises liability claim,

entitling the Deputies to summary judgment.

“[A] property owner is not an insurer of an invitee’s safety, and an intervening

criminal act by a third party generally insulates a proprietor from liability unless such

criminal act was reasonably foreseeable.” (Citations and punctuation omitted.)

Whitfield v. Tequila Mexican Rest. No. 1, 323 Ga. App. 801, 803 (2) (748 SE2d 281)

(2013). “In order to be reasonably foreseeable, the criminal act must be substantially

similar in type to the previous criminal activities occurring on or near the premises

so that a reasonable person would take ordinary precautions to protect his or her

customers against the risk posed by that type of activity.” (Citation and punctuation

omitted.) Drayton v. Kroger Co., 297 Ga. App. 484, 485 (677 SE2d 316) (2009).

In determining whether previous criminal acts are substantially similar

to the occurrence causing harm, thereby establishing the foreseeability

of risk, the court must inquire into the location, nature and extent of the

prior criminal activities and their likeness, proximity or other

relationship to the crime in question. While the prior criminal activity

must be substantially similar to the particular crime in question, that

does not mean identical. What is required is that the prior incident be

sufficient to attract the [owner or occupier’s] attention to the dangerous

condition which resulted in the litigated incident. Further, the question

12

of reasonable foreseeability of a criminal attack is generally for a jury’s

determination rather than summary adjudication by the courts.

(Citations and punctuation omitted.) Sturbridge Partners v. Walker, 267 Ga. 785, 786

(482 SE2d 339) (1997).

Here, Ratliff presented no evidence of any prior similar incidents at the ADC.

Moreover, the evidence reflects that any prior threats by McDonald toward Ratliff

appear to be generalized in nature,9 and the description of these threats provided by

Ratliff and Collor to Sutherland and Coachman were similarly vague. Certainly,

Ratliff presented no evidence of any specific, immediate threat of harm (e.g., the

women passed each other in a doorway that day without incident), nor did she present

any evidence of any prior acts of violence by McDonald that were known to either

Ratliff or the Deputies. In fact, both Sutherland and Coachman averred that they had

no prior knowledge that McDonald had ever harmed anyone. Accordingly, we find

that Ratliff failed to establish that it was reasonably foreseeable to the Deputies that

McDonald would strike Ratliff with her truck in the ADC’s parking lot directly in

front of four or more deputies. See Agnes Scott College, Inc. v. Clark, 273 Ga. App.

9

Moreover, it appears that McDonald made such threats primarily in her

communications with Collor, rather than directly to Ratliff.

13

619, 621-623 (1) (616 SE2d 468) (2005) (without evidence of prior similar crimes

committed in the area, kidnapping of plaintiff in broad daylight in busy college

parking lot not reasonably foreseeable).

“But even if an intervening criminal act may have been reasonably foreseeable,

the true ground of liability is the superior knowledge of the proprietor of the

existence of a condition that may subject the invitee to an unreasonable risk of harm.”

(Citations and punctuation omitted; emphasis supplied.) Whitfield, 323 Ga. App. at

803 (2). Therefore, even if Ratliff had informed at least two of the Deputies that she

had had prior threats from McDonald, Ratliff herself had direct knowledge of the

threats. And both the deputy and Ratliff heard McDonald shouting threats at the same

time on the day of the incident. Accordingly, Ratliff had at least an equal, if not a

superior, knowledge of the nature and degree of the threat posed by McDonald and

consequently had an equal or greater degree of foreseeability. See id. at 803 (2).

(proprietor lacked superior knowledge of threat posed by drunk customer where

neither knew of perpetrator’s propensity for violence and both knew that customer

was drunk and cursing and harassing customers); Johnson v. Atlanta Housing Auth.,

243 Ga. App. 157, 160 (2) (532 SE2d 701) (2000) (where plaintiff knew of dangers

in sitting on a bench at night in front of public housing where prior shootings had

14

occurred on the block, his knowledge of the danger was at least equal to that of

housing authority, precluding recovery); Griffin v. AAA Auto Club South, Inc., 221

Ga. App. 1, 2-3 (1) (470 SE2d 474) (1996) (holding as a matter of law that employer

could not reasonably foresee employee’s boyfriend’s actions in shooting her even

though employee had informed employer two days earlier that he posed a threat).10

Thus, Ratliff cannot establish superior knowledge, which is the sine qua non of her

premises liability claim, and the trial court properly granted the Deputies’ motion for

summary judgment on this claim. 11

(b) Ratliff asserts that the trial court erred in granting summary judgment on

her claim for recklessness. Ratliff asserted this claim in support of her prayer for

10

Moreover, “[t]his was not a random stranger attack but rather grew out of a

specific private relationship which had no connection with [the ADC] whatsoever.

The place chosen by [McDonald] for the attack just happened to be [the ADC’s]

parking lot. [The Deputies and the ADC] did not create or allow to exist an

environment which placed [Ratliff] at risk any more than if she had been at home or

on the street.” (Emphasis omitted.) Griffin, 221 Ga. App. at 3 (1).

11

The case of Clarke v. Freeman, 302 Ga. App. 831, 836 (1) (692 SE2d 80)

(2010), upon which Ratliff relies is procedurally and factually inapposite. In that case,

the plaintiffs asserted claims for infliction of emotional distress, not premises

liability, and this Court found that the allegations in support of the claims were

sufficient to withstand a motion to dismiss where the complaint alleged that the

defendants were aware of a specific threat against plaintiffs based on the perpetrator’s

statements, that a weapon had been confiscated from the perpetrator earlier that day,

and that the defendant courthouse guards failed to provide adequate security.

15

punitive damages, citing OCGA § 51-12-5.1 (b). A claim for punitive damages is

derivative in nature and “will not lie in the absence of a finding of compensatory

damages on an underlying claim.” D. G. Jenkins Homes, Inc. v. Wood, 261 Ga. App.

322, 325 (3) (582 SE2d 478) (2003). Because Ratliff’s claim for premises liability

fails, her claim for punitive damages also fails.

(c) We also find no need to address the public duty doctrine with regard to the

claims against the Deputies in their individual capacities. As discussed in Division

1, above, that doctrine does not create a separate cause of action but rather acts only

to limit governmental liability. Because we have found that Ratliff’s other causes of

action fail on the merits, we find no need to consider this defense as to the claims

against the Deputies personally.

Accordingly, we affirm the trial court’s order granting summary judgment to

the Deputies.

Judgment affirmed. Andrews, P. J., and Dillard, J., concur.

16