When my children were riding a bus to elementary school every day, like most parents I trusted the school bus driver to deliver them safely to school and back to our neighborhood. Usually that is what happens as school buses are generally considered the safest means of transporting children to and from school.

But occasionally children are seriously injured or killed in the process of being transported by school buses. We have successfully handled some of those cases.

School bus injury cases are not the same as car wreck cases. Lawyers handling those need to know the legal wrinkles unique to school bus personal injury and wrongful death cases in Georgia.

The biggest wrinkle in school bus injury cases is immunity.  Sovereign immunity, or governmental immunity, is the legal doctrine that the state (“sovereign”) is immune from civil suits unless it waives that immunity.  In Georgia, public schools have sovereign immunity from most injury claims. When we get calls about kids injured at school, about 99% of the time I have to tell folks they don’t have a case. I won’t take up space here to outline the extremely narrow exceptions for injuries at school.

Similarly, official immunity protects government officials and employees from liability for discretionary acts but not ministerial acts.

A ministerial act is one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

Official immunity protects public officers acting in their official capacity from suit unless they negligently perform a ministerial duty or act with actual malice or intent to cause injury while performing a discretionary duty. While a departmental policy requiring certain actions under certain situations may convert an activity from discretionary to ministerial, the decision whether specific acts are ministerial or discretionary is determined by the facts of the particular case. If the public employee must balance multiple factors and consequences, that makes the act discretionary. Standard v. Hobbs, 263 Ga.App. 873, 589 S.E.2d 634 (2003).

Sovereign immunity and official immunity are not the same thing and often must be analyzed separately. Primas v. City of Milledgeville, 296 Ga. 584, 769 S.E.2d 326 (2015)

Generally, the task of school officials “to monitor, supervise, and control students is a discretionary action protected by the doctrine of official immunity” are discretionary and thus immune from liability. That includes virtually all issues of supervision of students. See, e.g., Payne v. Twiggs County School Dist., 232 Ga.App. 175501 S.E.2d 550127 Ed. Law Rep. 448 (1998). Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, 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 independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

The main exception to sovereign immunity in Georgia public schools is for injuries while a child is being transported by school bus as the legislature by statute has waived immunity for negligent use of a local government motor vehicle up to a limited dollar amount. Generally, sovereign immunity is waived with regard to injuries or deaths that arise out of negligent use of a covered motor vehicle up to either $500,000 per person and $700,000 per incident, or a higher amount if the local government entity adopts by resolution or ordinance a higher waiver, and either becomes part of an interlocal risk management agency or purchases liability insurance in such higher amount.

A 1991 amendment to Ga. Const. of 1983, Art. I, Sec. II, Par. IX extending sovereign immunity “to the state and all of its departments and agencies” includes county-wide school districts.

This sovereign immunity “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.” If a student is injured in a collision with another vehicle, then sovereign immunity is waived to the limited extent provided by statute. Coffee County School District v. King, 229 Ga.App. 143, 493 S.E.2d 563 (1997),

At least three Georgia statutes are involved in this issue.

First, O.C.G.A. § 33-24-51 provides for waiver of governmental liability “for a loss arising out of claims for the negligent use of a covered motor vehicle,” but only “to the extent of the amount of insurance so purchased.”

Second, O.C.G.A. § 36-92-2 provides for waiver of “sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle” up to $500,000 for injury or death of any one person in any one occurrence, or up to $700,000 aggregate for two or more people, for incidents after January 1, 2008. Paragraph (b) provides, “The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived only to the extent and in the manner provided in this chapter and only with respect to actions brought in the courts of this state.” It also provides for $50,000 limit on property damage claims.

O.C.G.A. § 36-92-2(d) further provides, “(d) The waiver provided by this chapter shall be increased to the extent that: (1) The governing body of the local governmental entity by resolution or ordinance voluntarily adopts a higher waiver; (2) The local government entity becomes a member of an interlocal risk management agency created pursuant to Chapter 85 of this title to the extent that coverage obtained exceeds the amount of the waiver set forth in this Code section; or (3) The local government entity purchases commercial liability insurance in an amount in excess of the waiver set forth in this Code section.”

Third, O.C.G.A. § 20-2-1090, provides, “The various school boards of the counties, cities, and independent school systems employing school buses are authorized and required to cause policies of insurance to be issued insuring the school children riding therein to and from school against bodily injury or death at any time resulting from an accident or collision in which such buses are involved. The amount of such insurance shall be within the discretion of the respective boards.”

So what happens if a child is injured or killed in a school bus incident that does not arise out of “negligent use of a covered motor vehicle?” This has come up in cases where a child was left for hours on a parked school bus, or was injured in an assault by another student.

Last year, in a case in which a special-needs middle school student was left locked in a school bus parked in the school’s transportation-system parking lot after school for hours, the Georgia Supreme Court has held that O.C.G.A. § 20-2-1090, which authorizes school systems to purchase insurance on school buses, does not waive sovereign immunity of a school district to the extent of such insurance. Fulton County School District v. Jenkins, 347 Ga. App. 448, 820 S.E.2d 75 (2018). Any such waiver of sovereign immunity must be express rather than implied. While other statutes expressly waive sovereign immunity to limited extent, O.C.G.A. § 20-2-1090 does not.

In scenarios arising out of negligent operation of a school bus, sovereign immunity it is waived up to the amounts set forth in O.C.G.A. § 33-24-51.Tift County School Dist. v. Martinez, 331 Ga.App. 423771 S.E.2d 117 (2015).

There have been numerous appellate court decisions deciding whether immunity was waived in specific circumstances. Here are just a few illustrative cases.

Sovereign Immunity waived:

• Loading at school and the process disembarking from buses until a child reaches the curb. DeKalb County School Dist. v. Allen, 254 Ga.App. 66, 561 S.E.2d 202 (2002).
• Child was injured attempting to cross an adjacent street just moments after disembarking from the school bus as “use” of the school bus encompassed unloading the children and assuring that they reach a place of safety which might include crossing a street while bus was “standing guard” with it lights flashing and all visual signals operating.  Georgia Farm Bureau Mut. Ins. Co. v. Greene,174 Ga.App. 120, 329 S.E.2d 204 (1985)

Sovereign Immunity not waived:

• One student attacked by another student shortly after they exited a school bus, as no collision or accident was involved. Rawls v. Bulloch County School District, 223 Ga.App. 234477 S.E.2d 383 (1996), certiorari denied Feb. 14, 1997. “When a student riding on a school bus suffers an injury that is not proximately caused by an accident or collision in which the bus is involved, such as when the student is injured due to an attack made by a fellow student, OCGA § 20–2–1090 is inapplicable.” Payne v. Twiggs County School Dist., 269 Ga. 361, 362(1), 496 S.E.2d 690 (1998).
• Child struck while waiting at a bus stop. Brock v. Sumter County School Bd., 246 Ga.App. 815, 542 S.E.2d 547 (2000).
• Child is struck by a car when walking home from an unauthorized drop-off site on a busy road when the bus had driven two miles away, as “use” of the bus does not encompass the school district’s route planning. Roberts v. Burke County School Dist., 267 Ga. 665, 482 S.E.2d 283 (1997).
• Grandparents boards bus without authorization to try to discuss with bus driver child’s suspension due to abusive conduct and falls getting off the bus. Hancock v. Bryan County Bd. of Educ., 240 Ga.App. 622, 522 S.E.2d 661 (1992).

If a school bus driver drops off a child at an unapproved, unsafe location, there may be waiver of immunity but not if the school district’s insurance policy defines “use” of the bus so as to exclude this. Roberts v. Burke County School Dist., 267 Ga. 665, 482 S.E.2d 283 (1997).

Thus, in evaluating injury cases arising from school bus operations, a lawyer should consider the following steps:

• Investigate the incident.
  • Get the police report.
  • Immediately send open records requests to both the law enforcement agency for any photos, video and witness statements they may have. There may have been a video on the bus.
  • Interview witnesses insofar as possible.
  • Determine what security cameras may have been in the area and obtain their recordings.
  • Since the waiver of sovereign immunity is limited, investigate possible liability of other potential parties.
• Send Open Records requests to school district for:
  • Copy of each insurance policy applicable to the bus.
  • Copy of any interlocal government risk management agreement applicable to the bus.
  • Copy of each resolution, ordinance or rule adopted setting an amount for waiver of sovereign immunity.
  • Copies of all policies and procedures regarding bus operation, maintenance, and job descriptions of personnel involved in operation and maintenance.
• Request insurance coverage information from the insurer under O.C.G.A § 33-3-28, and refer to that statute in addition to the Open Records Act in the letter to the school district.
• Review Federal Motor Vehicle Safety Standards
  • 571.213 Standard No. 213; Child restraint systems.
  • 571.213;49 CFR § FMVSS213Outline Safe, Ride News Publications
  • 571.225 Standard No. 225; Child restraint anchorage systems
  • 571.208 Standard No. 208; Occupant crash protection.
• Obtain and review reference materials on school bus safety.
  • Georgia Department of Education School Bus Safety Materials
  • Georgia Department of Education Transportation Rules
  • Georgia School Bus Driver Training Manual (download)
  • Georgia Commercial Drivers License Manual, Chapter 10
  • School Bus Safety Handbook
  • The School Bus Challenge CD
  • CDL Exam Secrets – Passengers & School Bus Endorsements

If you have questions about a serious injury or wrongful death to a school bus passenger in Georgia, contact us at 404-253-7862.

 is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. He is licensed to practice law in Georgia. Representation of clients in others states, which possible, can be undertaken only in strict compliance with the multijurisdictional practice and pro hac vice rules of the other state.

Every summer there are far too many instances of children dying when left in a hot vehicle. One such tragedy involving a child care center without adequate insurance led to a claim against a city government for negligent licensing of the child care center.

Many child care centers in Georgia have no liability insurance because child care centers in Georgia are not required to carry any specific amount of liability insurance. The regulations governing Family Child Care Learning Homes require only “notification of the absence of a liability insurance policy sufficient to protect its clients,” though the amount of insurance that would be  sufficient is never defined. The Rules for Child Care Learning Centers require only that a program seeking an  exemption from licensure “shall comply with the requirements regarding notification to parents of enrolled children if the program does not carry liability insurance.” Parents are asked to sign an acknowledgment that the center “does not carry liability insurance sufficient to protect my children in the event of an injury, etc.”

When I was chairman of the board of directors of a non-profit, church-based child development center, we carried substantial liability insurance, adopted strict policies and procedures, and installed state of the art security technology. We were a rare exception.

If a child is badly injured or killed in many Georgia child care centers, the absence of liability insurance is likely to leave the family without any effective legal recourse.

In the recent case of Calloway v. City of Warner Robins, 336 Ga.App. 714, 783 S.E.2d 175 (2016), a three-year-old child died of heat stroke when left in a hot vehicle for several hours while in the care of workers a child care center. Lacking effective recourse against the child care center and its employees, the parents included as defendants the City of Warner Robins and the city clerk for negligence in issuance of a business license without following certain procedures.

The Court of Appeals (McFadden, J.), held that the city was protected by sovereign immunity because a “municipality’s act of granting or revoking a business license constitutes a governmental function,” even if the issuance of the license was negligent.  Likewise, the city clerk who was sued only in his official capacity was protected by sovereign immunity.

From time immemorial the doctrine of sovereign immunity has restricted citizens’ rights to seek legal redress against the government for its wrongdoing. Georgia has subscribed to the doctrine of sovereign immunity since 1784, when it was adopted by statute from the common law of England. The concept of sovereign immunity is a carryover from the quaint legal fiction that “the King can do no wrong,” which survived the transition from individual absolute sovereign to representative democracy. Limiting the governmental treasury’s exposure to tort liability is the more contemporary justification for the rule.

Whatever the rationale, through most of Georgia’s history, the state enjoyed almost complete immunity for the wrongs of its agents. Sovereign immunity is recognized to be “a harsh doctrine, not an equitable one.” Indeed, it is just the opposite of equity–it is the state declaring that it cannot be sued even where it would otherwise be liable.

The extent to which governmental entities receive the protections of sovereign immunity varies, depending on the type of entity involved and the type of negligence claimed. Generally speaking, the state is subject to a broader waiver of sovereign immunity than counties and municipalities, with the prevailing law being that the state waives immunity unless liability is specifically excluded by the Georgia Tort Claims Act.

The inverse is true of counties and municipalities, which require a specific statutory waiver before they can be liable. In addition to the government’s own immunity, government officials enjoy personal immunity for their allegedly wrongful acts, referred to as official, or qualified, immunity, which is not absolute, but protects them from the burdens of liability and litigation in many circumstances.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.

About once a month I get a call from an attorney in another state asking about the procedure for making injury and death claims against Georgia state government. Too often they are disappointed to learn that their letters to and correspondence with a claims adjuster for the state was not adequate notice of the claim. If a year has passed without sending notice of claim in proper form, their clients are out of luck. More than once,  I  have gently suggested that a lawyer notify his   legal malpractice insurance carrier.

Once again, on May 17, 2016, the Georgia Court of Appeals reiterated the old story that the ante litem notice of claim requirement of O.C.G.A. § 50-21-26 is strictly construed and correspondence with the state’s claims adjuster is not good enough.

In Callaham v. Georgia Ports Authority, 337 Ga.App. 120, 786 S.E.2d 505 (2016), Judge Chris McFadden wrote for the court in a case in which the injured plaintiff contended that correspondence with the Risk Management Division of the Department of Administrative Service (DOAS) and a claims adjuster satisfied the ante litem notice requirement. Once again, a lawyer unfamiliar with the details of the Georgia Tort Claims Act fell through a procedural trap door, taking his client with him.

In the Callaham case, the plaintiff was injured at the Georgia Ports Authority terminal in Savannah. His lawyer sent a representation letter to the Ports Authority’s claims adjuster providing information, pretty much as one would in any other car wreck case. Later the lawyer sent a notice of claim letter by certified mail to the DOAS Risk Management Division.

However, he did not send the ante litem notice to the Ports Authority or comply with other details of O.C.G.A. § 50-21-26, which mandates the following requirements:

(a) No person, firm, or corporation having a tort claim against the state under this article shall bring any action against the state upon such claim without first giving notice of the claim as follows:

(1) Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered; provided, however, that for tort claims and causes of action which accrued between January 1, 1991, and July 1, 1992, notice of claim shall be given in writing within 12 months after July 1, 1992;

(2) Notice of a claim shall be given in writing and shall be mailed by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim. Each state government entity may designate an office or officer within that state government entity to whom a notice of claim is to be delivered or mailed;

(3) No action against the state under this article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection;

(4) Any complaint filed pursuant to this article must have a copy of the notice of claim presented to the Department of Administrative Services together with the certified mail or statutory overnight delivery receipt or receipt for other delivery attached as exhibits. If failure to attach such exhibits to the complaint is not cured within 30 days after the state raises such issue by motion, then the complaint shall be dismissed without prejudice; and

(5) A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following:

(A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim;

(B) The time of the transaction or occurrence out of which the loss arose;

(C) The place of the transaction or occurrence;

(D) The nature of the loss suffered;

(E) The amount of the loss claimed; and

(F) The acts or omissions which caused the loss.

(b) No action may be commenced under this article following presentation of a notice of claim until either the Department of Administrative Services has denied the claim or more than 90 days have elapsed after the presentation of the notice of claim without action by the Department of Administrative Services, whichever occurs first.

The Supreme Court and Court of Appeals have consistently required strict compliance with this notice procedure. Even actual notice to the state agency is not sufficient to overcome the strict procedural requirements. Within twelve months of the incident, notice must be delivered in person or by certified mail or statutory overnight delivery, e.g., FedEx, to both the Department of Administrative Services Risk Management Division and the designated officer (usually commissioner or general counsel) of the state agency involved.

A substantial body of case law makes it clear that notice to a claims adjuster or attorney for the state is not good enough.

The ante litem notice must provide the listed information, including an amount of claim. Sometimes, if the extent of damage is undetermined, lawyers just state the amount as the per person cap under the statute, $1,000,000 as a place holder.

The Georgia Tort Claims Act was enacted in 1992, waiving sovereign immunity up to $1,000,000 per person and $3,000,000.  While providing a means for compensation in state tort claims, it is riddled with exceptions, exclusions and procedural trip wires and trapdoors for the unwary. Any lawyer who is not familiar with it, absolutely must study the statute and case law interpreting it in exhaustive detail. Even those of us who have worked with it for decades must review it every time we handle a state tort case.

From the early 1980s until after passage of the Georgia Tort Claims Act in 1992, much of my work at an insurance defense firm involved defense of tort cases for the Georgia Department of Administrative Services Risk Management Division, working closely with the Attorney General’s office in defense of state officials and employees. In Hartley v. Agnes Scott College, 295 Ga. 458, 759 S.E.2d 857 (2014), the Supreme Court quoted my book describing the system prior to 1992:

Prior to enactment of the GTCA, tort claims were brought against individual state employees and officials rather than the state agencies, and funds were allocated by the state to pay settlements or judgments against employees and officials within the course and scope of their duties. The GTCA reversed this scheme, so that claims are brought against agencies rather than individual employees and officials.

After the Georgia Tort Claims Act became law, the Attorney General decided that outside lawyers defending cases for the state had to become Special Assistant Attorneys General, working at SAAG rates which were much lower than I had been billing. I thanked him for the honor but, needing to feed a growing family, declined. Since then, I have handled personal injury and wrongful death cases against the state.

Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

When younger lawyers ask me for advice on their cases, among my first questions are, “What is the venue?” and “Who is the judge?”   Often the response is, “Uh, I’ll get back to you.”

Facts and law are vitally important. But the identity of the decision makers – judge and jury – are crucial too. While phenomenal verdicts may occur in conservative rural counties in great cases, and the plaintiff will likely recover nothing in a rotten case even in the most generous venue, in average cases the identify of judge and county are crucial. For example, in a fatal log truck crash a couple of years, I worked hard to secure venue in Fulton County (Atlanta) rather than a rural county heavily dependent on the pulpwood industry in which the crash occurred. It made all the difference in the value of the case.

Earlier this year, the Georgia Court of Appeals published an important decision regarding venue in tort cases against state
government. When an action is brought under the Georgia Tort Claims Act against a State government defendant, even when the State entity is not the sole tortfeasor, the mandatory venue provision of O.C.G.A. § 50–21–28 applies. That code section provides that “[a]ll tort actions against the state under this article shall be brought in the state or superior court of the county wherein the loss occurred[.]”

Thus, the determinative factor in venue for personal injury and wrongful death cases against state government in Georgia is determination of where “the loss occurred.”

In Board of Regents of University System of Georgia v. Jordan, 335 Ga.App. 703, 782 S.E.2d 809 (2016), the Court of Appeals of Georgia held:

The term “loss,” as used in the Georgia Tort Claims Act, is defined in OCGA § 50–21–22(3) as “personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.” (Emphasis supplied.) Had the legislature intended to limit venue for claims under the Georgia Tort Claims Act to the county where the negligent acts or omissions giving rise to the damages occurred, instead of where the “loss” occurred, it could have so provided. When the language of a statute is plain and unambiguous and does not lead to an absurd result, it supplies the sole evidence of legislative intent, and it must not be contravened. See Hall County Bd. of Tax Assessors v. Peachtree Doors, 214 Ga.App. 613, 614, 448 S.E.2d 476 (1994). Upon a plain reading of OCGA §§ 50–21–22(3) and 50–21–28, it is clear that the legislature intended to allow a tort action to be brought against the State in the county where economic loss, pain and suffering, mental anguish, and other elements of actual damages occurred. Since it is undisputed in the cases before us that the plaintiffs incurred losses in DeKalb County, venue is proper in DeKalb County.

In this case, even though the claims arose from medical treatment at a state hospital at Augusta in Richmond County, the plaintiffs had corrective surgeries and long hospitalization in DeKalb County. Because part of “the loss occurred” in DeKalb County – generally a more plaintiff-friendly venue – venue was proper in DeKalb County.

The court appears to have invited the legislature to amend the statute to more narrowly define venue options. However, not all such judicial invitations elicit a response from the General Assembly.

There are many potential ramifications for venue determination in tort claims against state government. One illustration is that if a crash involving a state vehicle causes injury in County #1, the victim is transported to a hospital emergency department in County #2, then is transferred to a tertiary care hospital in County #3, and later dies in County #4, there may be venue under the statute in any of the four counties.

With 159 counties in Georgia, ranging from rural and conservative to liberal and urban, venue options are crucial.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.

The leadership of the Georgia State Patrol deserves credit for openness in promptly taking disciplinary action and publicly disclosing that a State Trooper’s reckless conduct caused the deaths of two west Georgia  teenagers and injuries to two others last week.

State Trooper Anthony J. Scott, 26, was fired Friday after investigators determined he was driving 91 mph five seconds before a crash that killed Kylie Hope Lindsey, 17, and Isabella Alise Chinchilla, 16, both of whom were back seat passengers and students at South Paulding High School. Front seat occupants Dillon Lewis Wall, 18, and Benjamin Alan Finken, 17, both of Douglasville, were also injured.

Trooper Scott was northbound on U.S. 27 in Carroll County last Saturday night. He had slowed from 91 to 68 mph when he struck a 2005 Nissan Sentra attempting a left turn onto Holly Springs Road, investigators said. The posted speed limit in the area is 55 mph.

In the old days, it would have been much easier for government officials to cover up what really happened and place the blame on a teen driver. Now, with so much electronic data preserved in the patrol car, it would have been much harder to maintain a coverup.

Nothing can be worse for parents that the untimely death of a beloved child. For an innocent daughter to die due to senseless recklessness of a law enforcement officer who is sworn to protect rather than endanger the public is doubly tragic.

Criminal charges for homicide by vehicle are likely. As the crash happened in Carroll County in the Coweta Circuit, the Georgia State Patrol announced that it will turn over its findings to Coweta Judicial Circuit District Attorney Pete Skandalakis.

Civil cases for wrongful death and personal injury against state employees are controlled by the Georgia Torts Claims Act (GTCA), which became law in 1992.  Under this law, the State of Georgia waives its sovereign immunity “for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances.”

There is a long list of exceptions to potential state liability under this statute, but none of them would appear to apply to speeding through an intersection when there is no law enforcement emergency and without lights or siren operating.

Sovereign immunity is waived only up to the amount of $1 million per person and $3 million per occurrence.  A wrongful death claim (for full value of the life of the person who was killed) and a survival action (for pain and suffering, medical expenses and funeral expenses), however, whether brought by the same or separate persons, are subject to separate $1 million caps.

To make a claim under the Georgia Tort Claims Act, one must present a claim before suit in a technically precise manner. It is common for cases against the state to be thrown out of court for failure to strictly comply with the technicalities of the notice requirement. Compliance with the ante litem notice requirements is a condition precedent to a plaintiff’s right to file suit against the state, and the courts lack jurisdiction to adjudicate any such claims against the state unless and until the written notice of claim has been timely presented to the state as provided in O.C.G.A. §50-21-26(a).

Within 12 months of the incident causing injury or death, a written notice of claim must be sent by certified mail or statutory overnight delivery such as Fedex or UPS to the Risk Management Division of the Department of Administrative Services, the designated officer of the governmental agency involved, and the Attorney General.  The notice of claim must include,

“to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following: (A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.”

Failure to state an amount being claimed defeats the claim, so one must state a dollar amount up to the maximum allowed under the GTCA.

This is all familiar territory to me. Last year, the Supreme Court of Georgia quoted my book,  Georgia Law of Torts: Trial Preparation and Practice, in a case discussing the scope of the GTCA. My first job out of law school was as an Assistant District Attorney in my hometown of Douglasville, working in Douglas, Paulding, Haralson and Polk Counties, then all part of the old Tallapoosa Judicial Circuit. That of course involved working with State Troopers, though we also prosecuted a State Trooper in Paulding County for sexual exploitation of several young girls. Later, for most of a decade, I was in an Atlanta law firm that defended suits against state officials and employees including State Troopers all over Georgia.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

Several years ago I handled a products liability case against an auto manufacturer that had designed its braking system on one model so that a poorly designed sensor would turn off the antilock braking system without warning. As a result, our client was a brain damaged quadriplegic. It took much expert analysis and discovery of records to figure that out.

This is a great illustration of  why it is so important to preserve the right to thorough discovery to uncover the truth. Without a persistent plaintiffs’ lawyer forcing disclosure, GM would have kept all this secret without regard to the harm done to people.

Now we have a news story about another hidden auto defect involving a poorly designed switch. According to investigative reports in the Wall Street Journal, GM engineers knew of ignition-switch problems on the 2005 Cobalt that could disable power brakes, power steering and air bags, but continued to launch the car without correcting the defect.

GM was forced to recall 2.6 million vehicles, many of them Cobalts earlier this year because of a fault that turns odd the ignition switch while the car is being driven. Also recalled were Saturn Ion, Chevrolet HHR, Pontiac Solstice and G5 and Saturn Sky. The recall was expanded from 1.6 million to 2,591,665 cars, now including all model years of the Chevrolet Cobalt, Chevrolet HHR, Saturn Ion, Saturn Sky, Pontiac G5 and Pontiac Solstice made from 2003-2011.

It is estimated that 12 people have died and 34 people have been seriously injured because of the ignition-switch problem

The company believed the vehicles could be safely coasted off the road after a stall, according to testimony from a GM engineer in one of dozens of civil suits against the automaker because of deaths related to the ignition-switch problems.

The Chevy Cobalt ignition defect lawsuit arose from a fatal crash in which the victim was driving her Cobalt at highway speed when the ignition failed and airbags failed to deploy because the car was turned off at the time of the crash. Other who were involved in a similar situation explained to the National Vehicle Safety Administration that the car was difficult, if not impossible to steer when the ignition failed. During the 2013 court case, an engineer testified that GM believed drivers should be able to handle a car even without power steering.

To make matters worse, after the manufacturers re-engineered the faulty ignition on the Chevrolet Cobalt and Saturn Ion in 2006, they failed to create a new part number for the non-defective ignition that they designed. According to the publication in Automotive News, not following the protocol of renumbering helped stall its own engineers’ investigation into problems with the cars.

Although GM officials issued service bulletins to its dealers about the Cobalt as early as 2005, it did very little to help get defective vehicles off the roads. In a meeting on May 15, 2009, GM engineers learned that data in the black boxes of Chevrolet Cobalts confirmed a potentially fatal defect existed in hundreds of thousands of cars. However, GM did not tell this to the families of accident victims and GM customers.

In interviews, letters, and legal documents during the months and years that followed the initial report, GM said there was no evidence of any defect in their cars even though they learned about the potentially fatal defect. The U.S. government is investigating General Motors’ handling of the defect and probing reports that it knew there was a problem for years.

After levying a $1.2-billion fine on Toyota last month over an unreported safety problem with its accelerator pedals, U.S. Attorney General Eric Holder said he expected that settlement to serve as a model for how prosecutors would approach future cases involving “similarly situated companies.”

Although the Japanese automaker faces a large fine, criminal prosecution of individuals involved is not likely. Since it announced the recall, GM has faced a number of private lawsuits, as well as class actions by auto owners who say the recall affected the value of their vehicles.

A wrongful death lawsuit was filed in Minnesota recently on behalf of three teenaged girls who were injured or killed in a 2006 crash. The lawsuit accuses GM of knowing about the ignition switch defect, but failing to fix the vehicles. In two private lawsuits in Texas, the plaintiffs urge GM to tell owners of affected Saturn and Cobalt cars not to drive the cars. A U.S. senator on Monday asked the federal government to force General Motors to establish a fund to compensate consumers affected by the problem.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on the representation of plaintiffs in cases of catastrophic personal injury and wrongful death.

O.C.G.A. § 36-33-5 requires that notice be provided to a municipality within 6 months of the  claim. We lawyers still cling to old Latin phrases, even if only to make ourselves sound cool and justify having taken a dead language in high school, so we call this an “ante litem notice,” meaning it is a notice given before filing suit. The statute requires that

 Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.

In a death claim, the time for the statute of limitation starts running on the date of death rather than the date of the injury that leads to death. That would apply to an ante litem notice as well because the death itself is the event upon which a claim for wrongful death is based so the time period does not begin until the time of death.

While some accurate specificity is required regarding the time, place and extent of injury, substantial compliance is generally good enough. This is in contrast to the technical strictness in ante litem notices to state government under the Georgia Tort Claims Act.

The time limit for giving a notice of claim to a city government may be “tolled” — stopping the clock — by mental incapacity and a few other limited circumstances, but it is very dangerous to assume such an extension of a time limit will work in a particular case.

Contact us if you have a serious personal injury or wrongful death claim against a city government in Georgia.

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Ken Shigley is a past president of the State Bar of Georgia (2011-12), with a statewide personal injury trial practice  based in Atlanta. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (West 2010-13) and is double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification. He defended state and local governmental officials and employees in civil damage cases from 1982 to 1993, and since then has often represented individuals and families in personal injury and wrongful death cases against state and local governments.

The Georgia Tort Claims Act waives sovereign immunity up to  $1 million per person and $3 million per occurrence, subject to a long list of limitations that are beyond the scope of this post. Suit must be against the state agency rather than the individual state employee or official.

Where the Georgia Tort Claims Act applies, written notice of a claim must be provided within 12 months of the date of loss under O.C.G.A § 50-21-26. While there are a few narrow exceptions, failure to strictly comply will almost certainly result in dismissal of your case.

Notice of a claim must given in writing, delivered by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services.In addition, a copy must delivered personally to or mailed by first-class mail to the state government entity.

The notice must state the name of the state government entity,  the specific basis of the claim, the time and place of the incident,  and the nature and amount of damages claimed.

A copy of the notice must be attached to the lawsuit when it is later filed.

Failure to strictly comply with the notice requirement will likely result in a lawsuit, no matter how meritorious, being dismissed.

There are separate immunity considerations and notice requirements for claims against county and municipal governments in Georgia.

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Ken Shigley is a past president of the State Bar of Georgia (2011-12), with a statewide personal injury trial practice is based in Atlanta. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (West 2010-13) and is double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification. He defended state agencies’ officials and employees in civil damage cases from 1982 to 1993, and since then has often represented individuals and families in personal injury and wrongful death cases against state agencies.