Local Government Law
Ken E. Jarrard
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During the survey period,1 the Georgia Supreme Court and the Georgia Court of Appeals examined the applicability of statutory ante litem notice in the context of whistleblower actions against municipalities, while the Georgia Court of Appeals reaffirmed strict compliance in assessing the sufficiency of ante litem notice presented to departments of the state under the Georgia Tort Claims Act (GTCA).2
In West v. City of Albany,3 a former city employee brought a federal lawsuit against the city and two individuals that included claims under the Georgia Whistleblower Act (GWA).4 The GWA claims sought money damages for alleged retaliation for disclosing financial irregularities in the city's utility department.5 After the city moved to dismiss the GWA claims for failure to provide ante litem notice, the United States District Court for the Middle District of Georgia certified to the Georgia Supreme Court the question of whether ante litem notice pursuant to section 36-33-56 of the Official Code of Georgia Annotated (O.C.G.A.) was required for the plaintiff to pursue a money damages claim against the city under the GWA.7 The supreme court answered in the negative,
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holding not only that the plaintiff was not required to provide ante litem notice to the city to pursue a claim for retaliation under the GWA but also holding, generally, that the municipal ante litem notice statute is applicable only to damages claims sounding in negligence rather than damages claims arising out of intentional acts.8
In so holding, the court examined the plain language of O.C.G.A. § 36-33-5 in comparison to that employed in the GWA. The court recognized that the GWA contained no pre-suit notice requirement while subsection (b) of the municipal ante litem statute9 required pre-suit notice setting forth "the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury."10 The supreme court concluded that "it is obvious . . . that the municipal ante litem statute contemplates an injury sustained as a result of a negligent act or omission" as opposed to an intentional act.11 The court then reasoned that, because the plain language of O.C.G.A. § 36-33-5 applies only to damages caused by negligence and not to damages caused by intentional acts, a damages claim brought under the GWA, which by definition involves an intentional act, was not subject to the requirements of the municipal ante litem notice statute.12 The court concluded that it would "not graft the provisions of the municipal ante litem notice statute onto a completely separate statute that waives sovereign immunity and authorizes a retaliatory discharge action against a municipality without any requirement of pre-suit notice."13 The court overruled any prior Georgia Court of Appeals decisions holding that the municipal ante litem notice statute applies to claims other than negligence claims.14
The ripple effect from West was felt shortly thereafter in Riggins v. City of Atlanta,15 where the Georgia Court of Appeals referenced West in reversing the superior court's determination that lack of compliance with the municipal ante litem notice statute barred the plaintiff's GWA retaliation claim against the city.16
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In Georgia Department of Transportation v. King,17 the court of appeals grappled with whether a complainant's ante litem notice provided sufficient specificity, as required by the GTCA, as to the amount of personal injury loss. Prior to filing suit in King, the ante litem notice presented to the Georgia Department of Transportation (GDOT) stated that King would claim "the full amount of damages allowed by law," but did not specify a particular dollar amount.18 The Bibb County State Court denied the GDOT's motion to dismiss after determining that, because the GTCA caps the amount of damages under the Act at $1 million, the reference in King's ante litem notice to "the full amount of damages allowed by law" was sufficient.19
The Georgia Court of Appeals reversed, reiterating that "strict compliance with these ante litem notice requirements is necessary, and substantial compliance is insufficient."20 The court explained that King's ante litem notice was fatally flawed because the notice failed to state the amount of loss of which King was aware at the time of sending the notice.21 The court stressed that a claimant's losses in excess of the GTCA cap are relevant to the issue of settlement and, since the notice requirement is designed to facilitate settlement before the filing of a lawsuit, it is critical that the state receive adequate notice of the magnitude of the claim.22
In Williams v. Willcox State Prison,23 strict compliance with the GTCA's ante litem notice requirement was also tested.24 Williams filed a complaint for damages against the Georgia Department of Corrections (GDOC) "alleging that, while visiting Wilcox State Prison, she 'tripped and fell over uneven floor [in] the visitor's bathroom,' which resulted in severe bodily injury."25 The complaint "alleged that the GDOC 'did not act reasonably in inspecting or maintaining the ground so as to prevent or correct the dangerous and hazardous condition of the ground."'26 The Monroe County Superior Court granted the GDOC's motion to dismiss based upon a failure to strictly comply with the requirements of identifying the acts or omissions that caused the loss and the nature of
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that loss.27 In affirming, the court of appeals held that the complaint's allegations premised on uneven flooring were based on an entirely different set of factual allegations than Williams's ante litem notices, which alleged that Williams slipped and fell due to a water hazard.28 The court also held that the ante litem notice failed to provide sufficient details of the type of injuries sustained since the notices stated only that Williams incurred "serious injuries" without providing specific details as to the particular injuries suffered.29
In Southern States-Bartow County, Inc. v. Riverwood Farm Homeowners Ass'n,30 the Georgia Supreme Court held that a county zoning ordinance retroactively impairing the exercise of a vested right was unconstitutional.31 Southern States acquired a vested right for a nonconforming use and sought to obtain from the county the certificates needed to develop and operate a landfill. However, the county later enacted an ordinance mandating that any vested rights for a nonconforming use be exercised within one year or else be lost.32 On appeal from the trial court's award of partial summary judgment in favor of private property owners who sued to stop landfill development, the Georgia Supreme Court noted that the Georgia constitution prohibits retrospective laws that impair the vested rights of citizens.33 Because the prohibition against retroactive impairment of vested rights extends to zoning regulations,34 the county ordinance was held to be unconstitutional as applied to Southern States.35
In City of Cumming v. Flowers,36 the Georgia Supreme Court disapproved a significant line of cases, of which Jackson v. Spalding County37 was the lead, regarding the appropriate mechanism to appeal a quasi-judicial decision by a local zoning board.38 The supreme court held that neighbors disappointed with the quasi-judicial decision of the city's
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board of zoning appeals (the BZA) granting a variance were required to seek review of the BZA's decision by petition for certiorari in the superior court pursuant to O.C.G.A. § 5-4-139 and, therefore, mandamus was unavailable, even though it was mandated by the city's code.40
In Stroud v. Hall County,41 the court of appeals provided clarification as to a county's liability for inverse condemnation based on an alleged permanent versus continuing nuisance causing flooding damage.42 In Stroud, the plaintiffs alleged that a county road abutting their property caused flooding during rain events. Concluding that the nuisance alleged by the plaintiffs was permanent in nature, the Hall County Superior Court granted summary judgment based in part on the statute of limitations.43 After discussing the nature of permanent and continuing nuisances in general, the court of appeals held, contrary to the trial court, that the Strouds could pursue their claim "to the extent that the Strouds' nuisance claim is based on harm caused by the County's maintenance of the Road."44 However, the court of appeals affirmed the decision of the trial court to the extent the Strouds' claim was based on harm caused by the existence of the road itself, a permanent nuisance, as such a claim was barred by the statute of limitations.45
In City of Dunwoody v. Discovery Practice Management, Inc.,46 the court of appeals concluded that a planning director's determination that a particular use was allowed by right under the city's zoning ordinance did not require prior notice to neighbors where such notice was not required by the zoning ordinance.47 Without notice to adjoining property owners, the planning director issued a letter finding that Discovery's proposed use of property constituted a family personal care home under the zoning ordinances and that such a use under the pertinent zoning ordinance was as of right. Following that administrative decision, certain neighbors became aware of the proposed use and filed an application to administratively appeal the planning director's decision that the proposed use would be a family personal care home and allowed as of right. The zoning board of appeals sustained the appeal and reversed the planning director's decision due to the director's failure to notify the
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property owners.48 The Discovery appealed that decision whereupon the Dekalb County Superior Court reversed, thus reinstating the planning director's original determination.49 Finding...
