Bd. of Trs. of Ga. Military Coll. v. O'donnell

352 Ga.App. 651

835 S.E.2d 688

BOARD OF TRUSTEES OF GEORGIA MILITARY COLLEGE

v.O'DONNELL.

A19A1312

Court of Appeals of Georgia.

October 29, 2019

Robert Lee Bunner, Atlanta, Christopher Michael Carr, Kathleen M. Pacious, Loretta L. Pinkston-Pope, Atlanta, for Appellant.

Caleb Frank Walker, Katherine Lee McArthur, Jessica Applegate Edmonds, Macon, for Appellee.

Markle, Judge.

Rose O'Donnell was injured after performing a series of physical exercises as punishment for violation of the honor code while a student at Georgia Military College ("the College"). She filed a civil suit for negligence against the Board of Trustees of GMC ("GMC") and individual members of the board and staff, seeking damages arising from the injuries she sustained. The trial court denied GMC's motion to dismiss, as well as its motion for summary judgment. On appeal, GMC argues that the trial court erred in (1) denying its motion to dismiss based on the discretionary function exception to a waiver of sovereign immunity under OCGA § 50-21-24 (2) ; (2) denying its motion for summary judgment where OCGA § 20-2-1000 (b) provides for immunity for the acts or omissions of educators resulting from the discipline of a student; and (3) denying its motion for summary judgment where no GMC educator breached a legal duty that proximately caused O'Donnell's injuries. Because O'Donnell's suit is barred by the doctrine of sovereign immunity, we reverse.

"We review de novo a trial court's ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity." (Citation omitted.) Douglas v. Dept. of Juvenile Justice , 349 Ga. App. 10, 825 S.E.2d 395 (2019).

So viewed, the evidence shows that, in October 2013, O'Donnell was a high school junior at the College when she was caught plagiarizing a biology lab report. She admitted to violating the honor code, and was given punishment of ten hours of "bullring," GMC's after school retraining session consisting of a series of physical exercises, to be completed for one hour each day. The bullring was run by Junior Reserve Officers' Training Corps ("JROTC") instructors, and the physical exercises complied with GMC JROTC standard operating procedures ("SOPs") and the army physical readiness training manual ("PRT"). Per the SOPs, the instructors determined which exercises were performed, as well as the duration and number of those exercises. Students were required to complete the entire hour of bullring in order to receive full credit; if they failed to complete the exercises, they were required to repeat the entire hour.

On her first day of participating in bullring, O'Donnell was required to perform numerous exercises, such as running, pushups, and lunges. She started to struggle during her second run and set of pushups, and, although she knew that she could stop the exercises if she needed to, she chose to proceed so that she would not have to repeat the entire session. O'Donnell struggled through the remainder of the exercises; she cried, was flushed, she was breathing heavily, and she felt pain in her legs, arms, and knees. When one instructor noticed she was breathing heavily and asked if she needed to see the nurse, O'Donnell replied that she was trying to catch her breath.

After bullring, O'Donnell noticed her arms were sore and shaking, and she took a warm bath and placed ice on her arms once she got home that evening. At school the next morning, O'Donnell proceeded to the nurse's office because she could not move her arms. The nurse noted O'Donnell had swelling in her left arm, her right arm was sore, and she had bruising on her knees, and she gave O'Donnell an ice pack. Unable to complete classes for that day, O'Donnell checked out of school and, when her pain worsened, she sought medical treatment at a local hospital. Ultimately, O'Donnell was diagnosed with rhabdomyolysis, a condition resulting from severe muscle breakdown and the release of proteins into the blood stream, and was admitted to the hospital for ten days.

As a result of her injuries, O'Donnell sued GMC and individual members of the board and staff (collectively, "the defendants") under the Georgia Tort Claims Act ("GTCA"), OCGA § 50-21-20 et seq., alleging state law negligence claims and violation of civil rights.¹ GMC filed its motion for summary judgment, asserting (1) there was no evidence any of its employees breached a duty proximately causing O'Donnell's injuries; and (2) GMC had immunity from O'Donnell's claims under OCGA § 20-2-1000 (b). GMC also filed a motion to dismiss based on the discretionary function exception to the waiver of sovereign immunity under OCGA § 50-21-24 (2).

Following two hearings,² the trial court denied the motions to dismiss and for summary judgment,³ finding that OCGA §§ 20-2-732 and 20-2-1000 did not waive immunity given to educators in connection with student disciplinary action; there was a jury question as to whether the punishment O'Donnell endured was excessive or unduly severe; GMC was not entitled to sovereign immunity under the exception to the GTCA's waiver of immunity under OCGA § 50-21-24 (2) ; and there was a jury question as to whether GMC breached a duty of care to O'Donnell, and whether that breach was the proximate cause of her injuries. GMC filed an application for interlocutory review, which this Court granted. This appeal followed.

1. GMC argues that the trial court erred in failing to dismiss O'Donnell's negligence claims against it because her claims are barred by sovereign immunity. Specifically, GMC contends that, although the GTCA provides a limited waiver of immunity to state officers and employees, the conduct complained of here falls within an exception under OCGA § 50-21-24 (2). We agree.

As a preliminary matter, we note the unusual procedural posture of this case. GMC first filed its motion for summary judgment, and subsequently filed a motion to dismiss based on sovereign immunity. Regardless of this procedural posture,

the applicability of sovereign immunity to claims brought against the State is a jurisdictional issue. ... Therefore, the applicability of sovereign immunity is a threshold determination and, if it does apply, a court lacks jurisdiction over the case and, concomitantly, lacks authority to decide the merits of a claim that is barred.

(Citations and punctuation omitted; emphasis supplied.) McConnell v. Dept. of Labor , 302 Ga. 18, 18-19, 805 S.E.2d 79 (2017). "Any suit against the State barred by sovereign immunity is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction." (Citations omitted.) Dept. of Public Safety v. Johnson , 343 Ga. App. 22, 22-23, 806 S.E.2d 195 (2017). And "[a]s a state institution, GMC is entitled to sovereign immunity except to the extent sovereign immunity has been waived." (Citation and punctuation omitted.)

Ga. Military College v. Santamorena , 237 Ga. App. 58, 59 (1), 514 S.E.2d 82 (1999) ; see also OCGA § 20-3-541. With this framework in mind, we turn to GMC's argument on sovereign immunity.

The GTCA is "the exclusive remedy for any tort committed by a state officer or employee." OCGA § 50-21-25 (a).

Under the Georgia Constitution, sovereign immunity extends to the state and all of its departments and agencies. This immunity may be waived only by a legislative act which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. The Georgia Tort Claims Act, OCGA § 50-21-20 et seq., provides a limited waiver of sovereign immunity for torts committed by State employees acting within the scope of their employment. But there are exceptions to the limited waiver. Under OCGA § 50-21-24, the State remains immune for losses resulting from performance of a discretionary function[.]

(Citations and punctuation omitted.) Bd. of Public Safety v. Jordan , 252 Ga. App. 577, 583 (1), 556 S.E.2d 837 (2001) ; see also Ga. Dept. of Human Svcs., v. Spruill , 294 Ga. 100, 105 (2), 751 S.E.2d 315 (2013) ; OCGA §§ 50-21-23 and 50-21-24 (2) ; Ga. Const. of 1983, Art I, Sec. II, Par. IX.

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). As the Supreme Court of Georgia has indicated, "for 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, that an exercise of the discretion afforded amounts to "a policy judgment based upon a consideration of social, political, or economic factors." (Citation and punctuation omitted.) Spruill , 294 Ga. at 106 (2), 751 S.E.2d 315 ; see also Edwards v. Dept. of Children & Youth Svcs. , 271 Ga. 890, 892, 525 S.E.2d 83 (2000) (expanding the exception to social, political and economic policy factors); Brantley v. Dept. of Human Resources , 271 Ga. 679, 680, 523 S.E.2d 571 (1999) ("when properly construed, the exception protects only governmental actions and decisions based on considerations of public policy") (citation and punctuation omitted); Dept. of Transp. v. Brown , 267 Ga. 6, 7 (1), 471 S.E.2d 849 (1996) ; Cowart v. Ga. Dept. of Human Svcs. , 340 Ga. App. 183, 184-185, 796 S.E.2d 903 (2017). Also, "[t]he discretionary function exception serves to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort[.]" (Citation omitted.) Spruill , 294 Ga. at 106 (2), 751 S.E.2d 315. Nevertheless, we must be cautious not to interpret the exception so broadly that it effectively "swallow[s] the waiver." (Citation omitted.) Brantley , 271...