305 Ga. 812 FINAL COPY
S18G1316, S18G1317. DEPARTMENT OF LABOR v. McCONNELL et al.; and vice versa.
BOGGS, Justice.
We granted certiorari in these cases to determine, first,
whether the Court of Appeals erred in holding that the State has
waived sovereign immunity under the Georgia Tort Claims Act
(“GTCA”), OCGA § 50-21-20 et seq., for Thomas McConnell’s tort
action and, second, whether the Court of Appeals erred in holding
that McConnell’s complaint failed to state a claim.1 After review, we
agree with the Court of Appeals and affirm.
1 OCGA § 50-21-23 (a) says:
The state 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; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article. The state shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment. 1. The underlying facts are essentially undisputed. In
September 2012, the Georgia Department of Labor (the
“Department”) created a spreadsheet containing the name, social
security number, home telephone number, e-mail address, and age
of 4,757 individuals over the age of 55 in Cherokee, Cobb, and Fulton
counties who had applied for unemployment benefits or other
services administered by the Department, including McConnell.
Almost a year later, a Department employee inadvertently sent an
e-mail with the spreadsheet attached to approximately 1,000
recipients without the permission of the individuals whose
information was included in the spreadsheet.
On January 17, 2014, McConnell filed a complaint, which he
later amended on March 12, 2014, against the Department on behalf
of himself and a proposed class of all individuals whose information
was contained in the spreadsheet, alleging negligence, breach of
fiduciary duty, and invasion of privacy by public disclosure of private
facts. The complaint alleged that, as a result of the Department’s
negligent disclosure of McConnell’s and the other proposed class
members’ personal information, they were required to place freezes and alerts with credit reporting agencies, close or modify financial
accounts, and closely review and monitor their credit reports and
accounts for unauthorized activity. The complaint further alleged
that McConnell and others whose information had been disclosed
incurred out-of-pocket costs related to credit monitoring and identity
protection services and suffered adverse impacts to their credit
scores related to the closure of credit accounts. In addition, the
complaint alleged that the affected individuals experienced, and
would continue to experience, fear, upset, anxiety, and injury to
peace and happiness, as the disclosure of their personal identifying
information provided the material necessary to facilitate identity
theft and unauthorized charges on their credit and bank accounts.
The complaint did not allege that any identity theft or resulting
unauthorized charges actually had occurred. Nor did the complaint
allege that the personal identifying information had been disclosed
by or for criminal conduct.
The Department filed a motion to dismiss, which the trial court
granted, ruling that sovereign immunity barred the lawsuit because
the GTCA did not waive the State’s immunity for the type of “loss” that McConnell alleged. OCGA § 50-21-22 (3).2 The trial court also
held that each count of the complaint failed to state a claim upon
which relief could be granted. See OCGA § 9-11-12 (b) (6).
McConnell appealed, and the Court of Appeals affirmed,
pretermitting a decision on sovereign immunity and addressing only
the trial court’s ruling that each count of the complaint failed to
state a claim. See McConnell v. Dept. of Labor, 337 Ga. App. 457
(787 SE2d 794) (2016). We granted McConnell’s petition for
certiorari to decide whether the Court of Appeals erred in
considering the merits of McConnell’s claims without deciding first
whether sovereign immunity barred the lawsuit. We held that the
Court of Appeals did err in this regard, and we vacated the Court of
Appeals’ judgment and remanded the case with direction to make
the threshold determination. See McConnell v. Dept. of Labor, 302
Ga. 18, 19 (805 SE2d 79) (2017).
2 OCGA § 50-21-22 (3) defines “loss” 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.” On remand, the Court of Appeals first held that the trial court
erred in concluding that sovereign immunity barred McConnell’s
claims. See McConnell v. Dept. of Labor, 345 Ga. App. 669, 670-675
(1) (814 SE2d 790) (2018) (physical precedent only). On the merits,
the Court of Appeals again held that the trial court properly
dismissed the complaint for failure to state a claim. See id. at 675-
683 (2)-(4) (full concurrence as to Division 2). Both the Department
and McConnell filed petitions for certiorari, which we granted. After
review, we conclude that the Court of Appeals was correct, and we
affirm its holdings.
2. The Department argues that the definition of “loss” set forth
in OCGA § 50-21-22 (3) limits the waiver of sovereign immunity in
OCGA § 50-21-23 (a) to claims where a plaintiff also has suffered a
personal “injury, disease, or death,” which the complaint did not
allege. We disagree.
The complaint alleged that a Department employee, acting
within the scope of his employment, committed the torts of
negligence, breach of fiduciary duty, and invasion of privacy against
McConnell and the other proposed class members. And OCGA § 50-21-23 (a) says that “[t]he state waives its sovereign immunity
for the torts of state . . . employees while acting within the scope of
their . . . employment,” subject to the exceptions and limitations set
forth in the rest of the GTCA. Thus, absent some express “exception[
] [or] limitation[ ] set forth in [the GTCA],” the State waived its
sovereign immunity from McConnell’s lawsuit. See OCGA § 50-21-
23 (a). The Department does not argue that the conduct alleged in
the complaint is included in any of the exceptions or limitations
listed in OCGA §§ 50-21-24 (1)-(13) and 50-21-24.1.
The Department instead contends that OCGA § 50-21-22 (3)
provides an exception or limitation in its definition of “loss.” But
OCGA § 50-21-23 (a), which waives the State’s sovereign immunity
from tort claims “in broad language,” see Dept. of Transp. v.
Montgomery Tank Lines, 276 Ga. 105, 106 (1) (575 SE2d 487) (2003),
mentions “loss” only in the context of a non-waiver of sovereign
immunity that does not apply here.3 Moreover, as the Court of
3 As noted above, the second sentence of OCGA § 50-21-23 (a) says: “The
state shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment.” (Emphasis supplied.) Appeals noted, OCGA § 50-21-22 (3) ends with a catch-all phrase
that unambiguously includes in the definition of loss “any other
element of actual damages recoverable in actions for negligence,”
which clearly encompasses McConnell’s tort claims.
The Department’s other arguments — that McConnell’s
lawsuit does not fit within OCGA § 50-21-22 (3)’s catch-all phrase
because Georgia does not recognize as a cognizable injury his alleged
economic damages, and that Georgia’s “impact rule” bars
McConnell’s claims for emotional damages — actually are
arguments about the validity of McConnell’s claims and are
irrelevant to the threshold question of whether the State has waived
its sovereign immunity from McConnell’s lawsuit. See Upper Oconee
Basin Water Auth. v. Jackson County, 305 Ga. App. 409, 412 (1) (699
SE2d 605) (2010) (“A motion to dismiss asserting sovereign
immunity is based upon the trial court’s lack of subject matter
jurisdiction, rather than the merits of the plaintiff’s claim.” (citation
and punctuation omitted)).
Accordingly, because McConnell’s claims for negligence, breach
of fiduciary duty, and invasion of privacy sound in tort, are based on the conduct of a state employee while acting within the employee’s
scope of employment, and do not fall within an express exception or
limitation in the GTCA, we agree with the Court of Appeals and
conclude that the GTCA waived the State’s sovereign immunity
from McConnell’s lawsuit. Thus, McConnell has carried his burden
of showing that the trial court had subject matter jurisdiction over
his claims. Therefore, we now address the merits.
3. McConnell contends that the Court of Appeals erred in
holding that his complaint failed to state a claim upon which relief
could be granted. The complaint contained counts for negligence,
breach of fiduciary duty, and invasion of privacy. We consider each
count in turn.
(a) Negligence is premised on, among other things, a duty owed
by the defendant to the plaintiff. See Rasnick v. Krishna Hospitality,
289 Ga. 565, 566 (713 SE2d 835) (2011). The complaint alleged that
the Department owed a duty to McConnell and the other proposed
class members to safeguard and protect their personal information,
which McConnell argues is based on a purported common law duty
“to all the world not to subject [others] to an unreasonable risk of harm,” Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693)
(1982) (opinion of Gregory, J.), and two statutes, OCGA §§ 10-1-
393.8 and 10-1-910.
In Bradley Center, the lead opinion, which only two Justices
joined, said that everyone owes a general duty not to subject others
to an “unreasonable risk of harm” and may be liable for any breach
of that duty that causes harm to another. However, the language in
Bradley Center on which McConnell relies was not a holding
concurred in by a majority of this Court, was not supported by the
only authority that the lead opinion cited, was not a correct
statement of the law, did not control the result in that case (which
was based on a “special relationship” between the plaintiff and the
defendant), and has never been endorsed in a decision of this Court
that qualifies as precedent. Accordingly, we hereby disapprove
Bradley Center to the extent that it created a general legal duty “to
all the world not to subject [others] to an unreasonable risk of harm.”
250 Ga. at 201.4 We therefore reject McConnell’s reliance upon
4 Court of Appeals cases relying on Bradley Center’s language are Bradley Center.
McConnell also argues that two statutes, OCGA §§ 10-1-910
and 10-1-393.8, created a legal duty on the part of the Department
to safeguard his and the other proposed class members’ personal
information. But OCGA § 10-1-910 does not explicitly establish any
duty, nor does it prohibit or require any conduct at all. Rather, the
statute recites a series of legislative findings about the vulnerability
of personal information and the risk of identity theft. And while
OCGA § 10-1-393.8 (a) (1) says that no “person, firm, or corporation”
shall “[p]ublicly post or publicly display in any manner an
individual’s social security number,” the statute then immediately
adds, “As used in this Code section, ‘publicly post’ or ‘publicly
display’ means to intentionally communicate or otherwise make
available to the general public.” The complaint alleged only a
negligent disclosure, not an intentional one. Even assuming that
OCGA § 10-1-393.8 (a) (1) creates a duty enforceable in tort to
overruled, see, e.g., Lowry v. Cochran, 305 Ga. App. 240, 246 (2) (c) (699 SE2d 325) (2010), and cases reciting that language are disapproved, see, e.g., Underwood v. Select Tire, 296 Ga. App. 805, 808-809 (2) (676 SE2d 262) (2009). refrain from intentionally disclosing social security numbers,
McConnell has not shown that the Department owed him or the
other proposed class members a duty to protect their information
against negligent disclosure. Accordingly, the Court of Appeals
correctly held that the complaint failed to state a claim for
negligence.5
(b) McConnell contends that the Court of Appeals erred in
holding that the breach of fiduciary duty count failed to state a claim
upon which relief could be granted. Specifically, McConnell argues
that Department employees are public officers and that, under the
Trustee Clause of the Georgia Constitution, they owed McConnell
and the other proposed class members a fiduciary duty to protect
their personal information. We disagree.
The Trustee Clause provides, “Public officers are the trustees
and servants of the people and are at all times amenable to them.”
5 Because the disclosure was not intentional, we need not decide whether
the information disclosed was “ma[d]e available to the general public.” We also do not consider whether a duty might arise on these or other facts from any other statutory or common law source, as no such argument has been made here. Ga. Const. of 1983, Art. I, Sec. II, Par. I. Even assuming that this
statement includes a duty owed to individual members of the public
that is enforceable in tort,6 the Trustee Clause “is applied when a
public officer ha[s] definitely benefitted financially (or definitely
stood to benefit financially) as a result of simply performing [his or
her] official duties.” (Citation and punctuation omitted.) City of
Columbus v. Ga. Dept. of Transp., 292 Ga. 878, 882 (742 SE2d 728)
(2013). The complaint did not allege that any public officer was
“reaping personal financial gain at the expense of the public,” so the
Trustee Clause is inapplicable. Id.
McConnell also argues that the particular facts of this case
created a confidential relationship that imposed a fiduciary duty on
the Department to McConnell and the proposed class members. The
complaint alleged that a fiduciary duty arose when the Department
required McConnell and the other proposed class members to
disclose their confidential personal information in order to obtain
6 Cf. Deal v. Coleman, 294 Ga. 170, 178-181 (2) (a) (751 SE2d 337) (2013)
(distinguishing between public rights that belong to the people as a whole and private rights of individuals). services or benefits from the Department because they reasonably
placed trust and confidence in the Department that the Department
would safeguard and protect the information from public disclosure.
This argument is without merit.
OCGA § 23-2-58 defines a confidential relationship as a
relationship in which
one party is so situated as to exercise a controlling
influence over the will, conduct, and interest of another or
where, from a similar relationship of mutual confidence,
the law requires the utmost good faith, such as the
relationship between partners, principal and agent, etc.
The complaint did not allege any particular circumstances showing
that McConnell or any of the other proposed class members had a
special relationship of trust or mutual confidence with the
Department or any Department employee. As the Court of Appeals
noted, the complaint alleged merely that the Department, as the
gatekeeper to unemployment benefits, required McConnell and the
others to provide personal information in order to receive benefits.
Such conduct is common between citizens and government agencies and is insufficient to show a fiduciary relationship.
(c) Finally, McConnell asserts that the Court of Appeals erred
in holding that his allegations of invasion of privacy failed to state a
claim. Under Georgia law,
there are four disparate torts under the common name of invasion of privacy. These four torts may be described briefly as: (1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
(Citation and punctuation omitted.) Bullard v. MRA Holding, LLC,
292 Ga. 748, 751 (2) (740 SE2d 622) (2013). The complaint’s
allegations, if they stated any invasion of privacy claim, could fall
only within the second category: public disclosure of embarrassing
private facts.
There are at least three necessary elements for recovery under this theory: (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; [and] (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances. The interest protected is that of reputation, with the same overtones of mental distress that are present in libel and slander. It is in reality an extension of defamation into the field of publications that do not fall within the narrow limits of the old torts, with the elimination of the defense of truth.
(Citation and punctuation omitted.) Cottrell v. Smith, 299 Ga. 517,
532 (II) (C) (788 SE2d 772) (2016).
The Court of Appeals did not err. The complaint alleged that
the matter disclosed included only the name, social security number,
home telephone number, e-mail address, and age of individuals who
had sought services or benefits from the Department. This kind of
information does not normally affect a person’s reputation, which is
the interest the tort of public disclosure of embarrassing private
facts was meant to remedy.7 See Cottrell, 299 Ga. at 532.
And even if the information were of the kind that affected
reputation, the complaint would still not state a claim here because
the matters disclosed were not offensive and objectionable. See, e.g.,
Dortch v. Atlanta Journal & Atlanta Constitution, 261 Ga. 350, 352
(2) (405 SE2d 43) (1991) (holding that unlisted telephone numbers
7 For example, the subject matter of other cases involving this tort includes the disclosure of extramarital affairs, see Cottrell, 299 Ga. at 533, and the publication of a partially nude photograph, see Cabaniss v. Hipsley, 114 Ga. App. 367, 368-369 (151 SE2d 496) (1966). were not offensive and objectionable); Cumberland Contractors v.
State Bank and Trust Co., 327 Ga. App. 121, 126 (2) (a) (755 SE2d
511) (2014) (holding that social security numbers were not
embarrassing private facts). Compare Walker v. Walker, 293 Ga.
App. 872, 875 (2) (c) (668 SE2d 330) (2008) (holding that allegations
by ex-husband that ex-wife, her attorney, and a psychologist made
disclosure of objectionable private facts to the public in connection
with custody dispute were sufficient to support claim for public
disclosure of private facts); Zieve v. Hairston, 266 Ga. App. 753, 758
(1) (c) (598 SE2d 25) (2004) (holding that the matter of plaintiff’s
hair replacement treatment was one that a reasonable person of
ordinary sensibilities would find offensive and objectionable under
the circumstances). McConnell does not cite any authority that the
information disclosed here was offensive and objectionable. And
because the complaint did not allege that any objectionable and
offensive matters were disclosed, it therefore failed to state a claim
for invasion of privacy through the public disclosure of embarrassing private facts.8
Each count of the complaint failed to state a claim upon which
relief could be granted. The Court of Appeals therefore properly
affirmed the dismissal of the complaint.
Judgment affirmed. All the Justices concur, except Peterson,
Warren, and Ellington, JJ., disqualified.
8 We therefore need not decide if the other elements of the tort were
satisfied. Decided May 20, 2019.
Certiorari to the Court of Appeals of Georgia — 345 Ga. App.
669.
Christopher M. Carr, Attorney General, Kathleen M. Pacious,
Deputy Attorney General, Loretta L. Pinkston-Pope, Senior
Assistant Attorney General, A. Ellen Cusimano, Assistant Attorney
General, for appellant.
Schweber Green Law Group, Scott A. Schweber; Cohen,
Cooper, Estep & Allen, Jefferson M. Allen, for appellees.
Roy E. Barnes; Doffermyre Shields Canfield Knowles, Kenneth
S. Canfield; Evangelista Worley, David J. Worley; Jason R. Doss;
Griffin & Strong, Rodney K. Strong; Dicello Levitt Gutzler, Amy E.
Keller; Stueve Siegel Hanson, Norman E. Siegel, Barrett J. Vahle;
Cohen Milstein Sellers & Toll, Andrew N. Friedman; Hausfeld LLP,
James Pizzirusso; Morgan & Morgan Complex Litigation Group,
John A. Yanchunis; Girard Gibbs, Eric H. Gibbs; Milberg Tadler
Phillips Grossman, Ariana J. Tadler; Murphy Falcon & Murphy,
William H. Murphy III; Kilpatrick Stockton, J. Henry Walker IV,
John P. Jett, amici curiae.