BRITT v. JACKSON Et Al.

FOURTH DIVISION

DILLARD, C. J.,

DOYLE, P. J., AND BETHEL, J.

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

September 27, 2018

In the Court of Appeals of Georgia

A18A1190. BRITT v. JACKSON et al.

BETHEL, Judge.

This case arises out of an auto accident. Sharhod Britt was a passenger in a

vehicle that collided with another vehicle driven by a Georgia Department of

Corrections (DOC) probation officer. Britt brought this negligence action against

DOC, alleging that its employee caused the accident giving rise to his injuries. DOC

filed a motion to dismiss on the basis that the lawsuit was barred by sovereign

immunity. Following a hearing, the trial court granted DOC’s motion to dismiss the

action for lack of subject matter jurisdiction. On appeal, Britt argues that the trial

court committed reversible error by failing to consider certain evidence in its findings

of facts, by failing to consider whether the law enforcement exception to immunity

applies if the vehicle driven by the probation officer was not an emergency vehicle,

and by failing to apply controlling precedent to the facts of the case. Because the

record supports the factual findings of the trial court, and because Britt has made no

showing that sovereign immunity is waived, we affirm.

“We review de novo a trial court’s grant of a motion to dismiss on sovereign

immunity grounds.” James v. Ga. Dept. of Pub. Safety, 337 Ga. App. 864, 865 (1)

(789 SE2d 236) (2016) (citation and punctuation omitted). “However, factual findings

by the trial court in support of [its] legal decision are sustained if there is evidence

authorizing them, and the burden of proof is on the party seeking the waiver of

immunity.” Id.

So viewed, the record reveals that on December 15, 2013, Probation Officer

Lance Ward and his partner, Probation Officer Jarrod Roberts, were conducting field

visits on felony probationers in Tift County. Ward was driving a black Chevrolet

Tahoe issued by the Georgia Department of Corrections (DOC). The probation

officers were equipped with a radio that allowed them to communicate with the 911

dispatch in Tift County. That evening, Ward and Roberts heard a 911 dispatcher call

over the radio that there had been shots fired at a trailer park near their location. The

911 dispatcher stated that local law enforcement officers were on the lookout for

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suspects driving a brown SUV and a brown El Camino. The El Camino was driven

by Deon Jackson, and Sharhod Britt was riding in the bed of the vehicle.

Ward and Roberts decided to assist local law enforcement in locating the

vehicles and suspects believed to be involved in the reported shooting. Ward

proceeded to drive to the area where the dispatcher said one of the suspect vehicles

had been located. At that time, Ward’s vehicle was traveling behind two Tift County

Sheriff patrol cars which had their lights and sirens activated. Behind Ward’s vehicle

was another Tift County Sheriff patrol car. The headlights and warning lights on

Ward’s vehicle were also activated.

Ward then heard a call over the radio that law enforcement officers had made

observed the brown SUV and suspects from that vehicle were running away.

Believing the suspects would run to the rear entrance of the trailer park in order to

escape, Ward decided to drive to the rear of the trailer park to block the suspects’

path. At that time, one Tift County Sheriff patrol car was traveling behind Ward’s

vehicle with its lights and sirens still activated. Ward then noticed that the vehicle in

front of him appeared to be an El Camino which matched the description of the

second suspect vehicle described by the 911 dispatcher. Anticipating that the deputy

sheriff in the patrol car behind him would conduct a stop of the El Camino, and in an

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effort to get out of the deputy’s way, Ward, with his warning lights deactivated,

attempted to pass the El Camino on the left so that the deputy could conduct a traffic

stop. Ward did not engage his turn signals prior to passing the El Camino.

Meanwhile, as Ward attempted to pass the El Camino, the driver of the El Camino

turned left in front of Ward’s vehicle without any warning. Although Ward attempted

to avoid a collision, Ward’s vehicle struck the rear quarter panel on the driver side of

the El Camino. The impact caused the El Camino to spin out and come to a rest on

the curb. Britt, who was in the bed of the vehicle at the time of impact, complained

of injuries at the scene.

Immediately following the collision, the sheriff’s deputy who had been

traveling behind Ward’s vehicle conducted the traffic stop with occupants of the El

Camino while Ward and Roberts checked the suspects for weapons and secured the

scene. Georgia State Patrol was notified of the accident, responded to the scene, and

conducted an investigation. The State Trooper gave Ward a verbal warning for

improper passing.

Britt later filed the complaint for damages giving rise to this appeal against

DOC. DOC moved to dismiss the action for lack of subject matter jurisdiction.

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Following a hearing, the trial court granted DOC’s motion to dismiss. This appeal

followed.

1. Britt first argues the trial court erred by failing to consider certain evidence

in the record when making its factual findings. Specifically, Britt contends that the

trial court’s failure to recite in its findings of fact that it had reviewed the dash cam

video of the incident denied him a full review of the evidence and thus prejudiced

him. This argument is directly contradicted by the facts in the record, and therefore

fails.

The record shows that along with its motion to dismiss Britt’s action, DOC

attached a copy of the dash cam video as an exhibit to the motion. During the hearing

on the motion to dismiss, the following exchanges occurred between counsel for the

parties and the trial court:

BRITT’S COUNSEL: Well, you’re going to see the video anyway,

Judge.

COURT: I’ve already seen the video.

BRITT’S COUNSEL: Ah, okay.

COURT: And just to make sure, I’ve seen the video. And your client

was the one lying or sitting in the back of the El Camino; correct?

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BRITT’S COUNSEL: Who bounced up at the time of impact, yes.

COURT: Okay. I remember seeing him. I remember seeing him in the

back[.]

...

DOC’S COUNSEL: Thank you, your honor. I understand you’ve

watched the video. So [Britt’s counsel] and I --

COURT: Yeah. I had to get my intern to figure out the computer

programming necessary to be able to do that, but . . .

DOC’S COUNSEL: Okay. So [Britt’s Counsel] and I, we’re going to ask

if you needed to watch it again, but if you don’t we’re good.

COURT: No, I’m good.

In its order granting DOC’s motion to dismiss, the trial court prefaced its

findings of fact by stating, “[b]ased upon the pleadings and evidentiary record

established at the hearing, this Court makes the following findings of fact and

conclusions of law.” Here, the record reflects that the pleadings and evidentiary

record established at the hearing included the dash cam video footage. Britt argues

that by not explicitly stating in its order that the trial court reviewed the dash cam

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video footage, the trial court effectively ignored the footage. However, Britt cites no

case law that requires trial courts to specify each piece of evidence in the record upon

which it based its findings of fact. Moreover, the trial court’s supposed failure to

expressly state in its order that it reviewed the dash cam video does not support

Britt’s claim for reversal. See Murrey v. Specialty Underwriters, Inc., 233 Ga. 804,

806 (213 SE2d 668) (1975) (the trial court’s order does not have to recite the grounds

upon which the motion to dismiss were sustained so long as the judgment is

authorized for any reason).

2. Britt next argues that the trial court erred by concluding that DOC was

entitled to immunity under the law enforcement exception of OCGA § 50-21-24 (6).

Specifically, Britt argues the trial court failed to consider whether the record

demonstrated that Ward was driving an emergency vehicle as defined by statute.

Under the Georgia Constitution, DOC is entitled to sovereign immunity to the

extent that such immunity has not been waived through an act passed by the General

Assembly. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (a), (e). The Georgia Tort

Claims Act (“GTCA”) set forth at OCGA § 50-21-20 et seq. provides for a limited

waiver of the State’s sovereign immunity for the torts of State officers and employees

acting within the scope of their official duties or employment. GTCA sets forth

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specific exceptions to the waiver under which the State retains sovereign immunity

from suit. See OCGA §§ 50-21-23; 50-21-24. Any suit against the State barred by

sovereign immunity is subject to dismissal for lack of subject matter jurisdiction. See

Steele v. Ga. Dept. of Transp., 271 Ga. App. 374, 374-375 (609 SE2d 715) (2005).

OCGA § 50-21-24 (6) provides that “[t]he state shall have no liability for

losses resulting from . . . the method of providing, law enforcement, police, or fire

protection[.]” Our Supreme Court has interpreted this statute to mean that the State

is immune from liability for negligence resulting in an injury that occurs during

implementation of a policy, if the defect lies in the policy itself. Ga. Dept. of Pub.

Safety v. Davis, 285 Ga. 203, 206 (676 SE2d 1) (2009). However, the state is not

immune from liability where, in implementing a non-defective policy, the state’s

employee negligently acts in a way not authorized by policy. See Dept. of Pub. Safety

v. Johnson, 343 Ga. App. 22, 23 (806 SE2d 195) (2017) (citation omitted).

Here, Britt’s complaint did not concern the substance of DOC’s policy for

allowing probation officers to provide assistance to other law enforcement agencies,

but rather alleged that Ward was negligent in following the policy. In its motion to

dismiss, DOC challenged the trial court’s subject matter jurisdiction, arguing that

because Ward’s actions were consistent with DOC’s non-defective policy, DOC

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retained sovereign immunity under GTCA. As is the case here, when subject matter

jurisdiction is challenged on this basis, “the trial court may receive evidence . . . and

make relevant factual findings to decide the threshold issue of whether a defendant’s

entitlement to sovereign immunity deprives the court of subject matter jurisdiction.”

Johnson, 343 Ga. App. at 23 (citing James v. Ga. Dept. of Public Safety, 337 Ga.

App. 864, 867 (2) (789 SE2d 236) (2016)) (punctuation omitted).

Britt contends that in order for the trial court to reach a proper conclusion as

to whether DOC retains sovereign immunity in this case, the trial court must consider

whether Ward violated Georgia law in his operation of an emergency vehicle. Britt

argues that because Ward violated Georgia traffic laws, Ward’s actions violated DOC

policy, and thus the law enforcement exception of GTCA does not apply. Britt’s

argument misinterprets the applicability of OCGA § 50-21-24 (6). The issue before

us does not depend on whether Ward violated any Georgia traffic laws when

implementing DOC policy, but whether he violated DOC policy when he assisted

local law enforcement and attempted to pass a vehicle without warning. Here, because

the record supports the trial court’s conclusion that Ward did not violate DOC policy,

the trial court did not err in determining that DOC retained its sovereign immunity.

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This record reflects that DOC policy authorizes probation officers to provide

assistance to other law enforcement agencies. When assisting other law enforcement

agencies, DOC probation officers are expected to use their professional judgment and

discretion based on their law enforcement training and DOC procedures.1 DOC policy

allows probation officers to take on supportive roles when assisting other law

enforcement agencies. DOC policy does not authorize probation officers to conduct

traffic stops. There was evidence before the trial court showing that an internal review

of Ward’s actions found that he complied with DOC policy.

Based on the above evidence, the trial court was authorized to conclude that

DOC’s policies permitted Ward to provide assistance to local law enforcement and

permitted the actions taken by Ward in rendering assistance. The trial court noted that

Ward did not conduct a traffic stop, moved his vehicle out of the way so that local

law enforcement could conduct the traffic stop, and maintained a supportive role

throughout the incident. The trial court found that DOC’s policies permitted Ward’s

actions and the exercise of his discretion in following those policies.

1

DOC probation officers are Police Officer Standards and Training (“POST”)

certified law enforcement officers. POST certified law enforcement officers are

authorized to exercise the power of arrest and their duty includes “the preservation

of public order, the protection of life and property, and the prevention, detection, or

investigation of crime[.]” OCGA § 35-8-2 (8) (A).

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While we do recognize there is some evidence in the record to suggest that

Ward’s actions may have violated Georgia traffic laws when assisting local law

enforcement, the issue before us is whether the record supports the trial court’s

conclusion that Ward did not negligently implement DOC policy. We find that the

record supports the trial court’s conclusion. See Loehle v. Ga. Dept. of Pub. Safety,

334 Ga. App. 836, 841 (1) (780 SE2d 469) (2015) (“Based on these factual findings,

which are supported by evidence from the record, we conclude that the trial court

correctly found that [the Department] did not waive sovereign immunity.” (footnote

omitted)).

3. Lastly, Britt contends that the trial court erred by failing to apply controlling

precedent to the facts of this case. Specifically, Britt contends that had the trial court

applied our Supreme Court’s holding in Ga. Dept. of Pub. Safety v. Davis2 to the facts

of this case, the law enforcement exception would not apply. This argument is

unavailing.

In Davis, a Georgia State Trooper drove behind a mail truck, which he used as

cover, in order to run radar on approaching vehicles. Id. at 204. The state trooper did

not realize that the mail truck had stopped in front him and collided with the truck.

2

285 Ga. 203, 203 (676 SE2d 1) (2009).

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Id. The Supreme Court affirmed this Court’s prior holding that the State was subject

to liability for the injuries resulting from the negligence of the state trooper in

colliding with the mail truck because the record contained evidence that the state

trooper was not acting pursuant to policy. Id. at 206-207.

In contrast, the facts in Davis are clearly distinguishable from the facts here.

In Davis, there was no evidence that any policy permitted the state trooper’s actions.

Here, there was evidence that DOC policy permitted Ward, in the exercise of his

discretion, to assist local law enforcement in the manner in which he did. Ward’s

supervisor averred in her affidavit and testified at the hearing on the motion to

dismiss that Ward’s actions were consistent with DOC policy in assisting local law

enforcement and responding to emergency calls from dispatch. Additionally, unlike

the internal investigation of the state trooper in Davis, an internal investigation of the

collision determined that Ward’s actions complied with DOC policy and were proper.

Although Britt disputes the factual findings of DOC’s internal investigation

and ultimately the trial court, we find that the trial court’s factual findings were

authorized by the evidence. It is not the job of this Court to substitute our view of

disputed facts where the evidence supports the trial court’s conclusion. Accordingly,

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the trial court did not err in granting DOC’s motion to dismiss for lack of subject

matter jurisdiction.

Judgment affirmed. Dillard,C. J., and Doyle, P. J., concur.

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