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Posted by Susan J. Levy

As an agency of the state, the Georgia Department of Transportation (“DOT”) is entitled to sovereign immunity except to the extent sovereign immunity has been waived by the provisions of the Georgia Tort Claims Act (“GTCA”). See Georgia Military College v. Santamorena, 237 Ga. App. 58, 61; O.C.G.A. § 50-21-21. Under the GTCA, the State has agreed to waive sovereign immunity for the torts of state officials and employees subject to certain exceptions and limitations. O.C.G.A. §§ 50-21-23 and 50-21-24. O.C.G.A. § 50-21-24 enumerates 13 exceptions to the State’s waiver of sovereign immunity. In DOT v. Miller, 2009 Ga. App. LEXIS 1293 (November 10, 2009), DOT argued that the “discretionary function” exception to the State’s waiver of sovereign immunity barred Plaintiff’s recovery. The Court of Appeals rejected that argument.

The “discretionary function” exception provides that “[t]he state shall have no liability for losses resulting from: . . . (2) The exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” O.C.G.A. § 50-21-24 (2).

The GTCA then defines “discretionary function or duty” to mean “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.” O.C.G.A. § 50-21-22 (2). “This definition of discretionary function is almost identical to the definition of discretionary function that has been developed by the federal courts in construing the discretionary function exception to the Federal Tort Claims Act.” Brantley v. Dept. of Human Resources, 271 Ga. 679, 682 (1999). The United States Supreme Court has stated that the purpose of the discretionary function exception “is 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,” and that, for that reason, “when properly construed, the exception ‘protects only government actions and decisions based on consideration of public policy.'” Id. citing U.S. v. Gaubert, 499 U.S. 315 (1991), quoting Berkowitz v. U.S., 486 U.S. 531, 537 (1988). “Under federal law, the discretionary function exception may apply not only to policy and planning level employees, but also to employees who make day-to-day operational and management decisions.” Id. at 683 citing U.S. v. Gaubert, 499 U.S. 315 (1991). “It is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies to a given case.” Id.

In Miller, Plaintiff’s decedent was killed after the vehicle he was driving hydroplaned, left the roadway, and landed submerged in a roadside pond. Plaintiff argued that DOT negligently failed to keep a culvert clear of debris which caused accumulated rainwater from the pond to cover the travel way of the road.

In support of its Motion for Directed Verdict, DOT argued it was entitled to sovereign immunity based on the Discretionary Function Exception to the waiver of sovereign immunity because DOT personnel could make a “judgment call” as to which culverts to inspect after each major storm. Id. At *3 and *4.

The Court disagreed, finding that the “judgment call” relied upon by DOT in Miller was not the type of discretionary function contemplated by the GTCA. Relying on DOT v. Brown, 267 Ga. 6, 7 (1996), (Georgia Supreme Court found that DOT’s initial decision to extend a highway was a policy decision within the meaning of the discretionary function exception but the decision to open the road prior to completion with an alternative traffic control system was not.) the Court held that “the day-to-day decision of whether and where to send out DOT personnel to inspect for road hazards on the day in question was not a basic governmental policy decision for purposes of the GTCA.” Id. at *5.