Georgia Department of Human Resources v. Bulbalia

694 S.E.2d 115, 303 Ga. App. 659, 2010 Fulton County D. Rep. 1459, 2010 Ga. App. LEXIS 286
Court of Appeals of Georgia·Decided March 23, 2010·No. A09A1961·Published·Cited by 13 cases

Opinion

Doyle, Judge.

Eleven-year-old I. B. was hit by a car while in foster care. His parents, Louis Bulbalia and Beverly Kerr, filed suit against the Georgia Department of Human Resources (“DHR”) and the DeKalb [660] Community Service Board (“DCSB”) under the Georgia Tort Claims Act (“GTCA”),1 alleging that the defendants were negligent in failing to properly supervise, monitor, control, and care for I. B. DHR and DCSB filed a motion to dismiss on the ground that they are immune under the doctrine of sovereign immunity and a motion for summary judgment. The defendants appeal the trial court’s denial of both motions. We affirm, for reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmo-vant.2

So viewed, the evidence shows that I. B. was ordered into the custody of DHR on October 1, 2002 after he ran away from home several times.3 He was placed in the Gwinnett Children’s Center in December 2002, but after a DCSB psychiatrist determined that I. B. was acutely suicidal, the child was placed in the DeKalb Crisis Center and then transferred to Peachford Hospital for treatment, where he continued to threaten suicide and exhibited other symptoms of mental illness. Based on his problems, DHR and DCSB placed I. B. in therapeutic foster care with Darlene and Lindsay Blair.

While living with the Blairs, I. B. was delusional, tried to run away, and made numerous suicide threats. Based on acute psychosis and suicide threats, I. B. was involuntarily admitted to Georgia Regional Hospital in November 2002, where he was evaluated by a physician who determined that he might be mentally ill and might present a substantial risk of imminent harm to himself or others or might “be so unable to care for [his] own physical health and safety as to create an imminently life-endangering crisis.”4 I. B. was discharged from Georgia Regional on December 5, 2002, and he returned to the Blairs’ home.

[661] On January 3, 2003, the Blairs both went to work, leaving I. B. at home with Darlene’s father-in-law, James Tillman, and her 17-year-old son, B. J.5 At approximately 3:00 p.m.,6 B. J. called Darlene at work and told her that I. B. was threatening to run away. Darlene immediately headed home, remaining on her cell phone with B. J. While Darlene was on the phone, B. J. told her that I. B. had succeeded in getting out of the house; B. J. followed him, but I. B. disappeared. Darlene called the police from her cell phone, and when she arrived home, she, B. J., and Tillman looked for I. B. When they were unable to locate him, Darlene called 911 a second time.7 Later that night, a social worker from Grady Hospital called and informed the Blairs that I. B. had been hit by a car at approximately 6:00 p.m. and had sustained serious injuries.

I. B.’s parents, Bulbalia and Kerr, filed suit against DHR and DCSB,8 alleging that

as a result of the negligence of . . . DHR . . . and DCSB to properly care for, supervise, control[,] and monitor [I. B.], that [I. B.] was allowed to wander off from the foster care facility in which he was placed. Darlene Blair failed to monitor [I. B.] closely, thereby allowing him to leave her foster care facility. Said failure to monitor [I. B.] resulted in severe and painful injuries to [I. B.]. . . .
The [defendants, DHR. . . and DCSB[,] individually and in combination with Darlene Blair, knew or should have known of the risks associated with the failure to properly monitor [I. B.]. Darlene Blair did not have proper precautions or practices in place in order to provide for the safety and security of [I. B.] . . . and did not appropriately apply and implement necessary precautions in order to provide for the safety and security of [I. B.] on January 4, 2003.9

[662] The defendants filed a motion to dismiss and a motion for summary judgment. Following a hearing, the trial court denied both motions in a single order, which the defendants have appealed.

1. The defendants filed a motion to dismiss, contending that their acts fell within the discretionary function exception to the State’s waiver of sovereign immunity under the GTCA. The trial court denied the motion, concluding that the plaintiffs’ complaint “raises no question as to the propriety of the exercise of this discretion.”10 The defendants argue that the trial court erred in denying their motion to dismiss on this basis. We disagree.

Under the GTCA, the State has agreed to waive its sovereign immunity for the torts of state employees and officers acting within the scope of their employment, subject to certain exceptions.11 One such exception is the “discretionary function exception,” under which the State has no liability for losses resulting from “[t]he 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.”12 The GTCA defines a “[discretionary function or duty” as “a function or duty requiring a [S]tate 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.”13

In Brantley v. Dept. of Human Resources,14 our Supreme Court emphasized that

the definition of discretionary function set forth in § 50-21-22 (2) plainly requires not only the exercise of discretion or judgment, but also that that discretion or judgment concern a “policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.”15

In Brantley, the Court concluded that a foster parent’s “decision to leave a two-year-old child unattended in a swimming pool is an insufficient basis on which to invoke the discretionary function exception. If such a decision were considered a discretionary func[663] tion, the exception would swallow the waiver.”16 The Court went on to explain that

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Georgia Department of Human Resources v. Bulbalia, 694 S.E.2d 115, 303 Ga. App. 659, 2010 Fulton County D. Rep. 1459, 2010 Ga. App. LEXIS 286 (Ga. Ct. App. 2010).

694 S.E.2d 115 (Georgia Department of Human Resources v. Bulbalia) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Ga. Dept. of Human Resources v. BULBALIA
694 S.E.2d 115 (Court of Appeals of Georgia, 2010)