Ray v. Jackson

830 S.E.2d 329, 350 Ga. App. 878
CourtCourt of Appeals of Georgia
DecidedJune 24, 2019
DocketA19A0776
StatusPublished

This text of 830 S.E.2d 329 (Ray v. Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ray v. Jackson, 830 S.E.2d 329, 350 Ga. App. 878 (Ga. Ct. App. 2019).

Opinion

Brown, Judge.

*331*878Alexander Ray appeals from the trial court's order dismissing his personal injury action asserting claims against the following persons in their individual capacities: Theodore Jackson, Sheriff of Fulton County, Jimmy Carter, Chief Deputy of the Fulton County Sheriff's Office, Jimmy Butts, Colonel Chief of Staff of the Fulton County Sheriff's Office, and Mildred Jackson,1 a Fulton County Sheriff's *879Office employee.2 On appeal, he asserts that the trial court erred in (1) failing to find that the deadline for serving an ante-litem notice was not tolled by a pending criminal prosecution; (2) concluding that official immunity bars recovery as a matter of law; and (3) finding that his injuries were not foreseeable as a matter of law. For the reasons explained below, we agree and reverse.

1. With regard to Ray's enumeration of error regarding the tolling of the ante-litem notice provision, we find that it is moot. The trial court dismissed only the claims against Fulton County and Jackson, in his official capacity as Sheriff of Fulton County, based upon the expiration of the time period within which to file an ante-litem notice. But as we already have pointed out, this was not the sole basis for the trial court's dismissal of Fulton County and the claim against Jackson in his official capacity. It also did so based upon Ray's concession that they were entitled to sovereign immunity. Because Ray does not assert any error with regard to this portion of the trial court's order, the asserted error3 with regard to the ante-litem issue is moot. See Med. Center of Central Ga.v. City of Macon , 326 Ga. App. 603, 607 (1), 757 S.E.2d 207 (2014) ("Grounds that are not attacked as erroneous will not be considered on appeal and are presumed to be binding and correct.") (Citations and punctuation omitted).

2. In related enumerations of error, Ray contends that the trial court should have allowed discovery to proceed before ruling that the individual defendants were entitled to official immunity as a matter of law because their alleged acts were discretionary. We agree.

A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

(Citation and punctuation omitted.) Austin v. Clark , 294 Ga. 773, 775, 755 S.E.2d 796 (2014). "We review de novo a trial court's ruling on a *880motion to dismiss. [Cit.]" U-Haul Co. of Arizona v. Rutland , 348 Ga. App. 738, 740, 824 S.E.2d 644 (2019).

Official immunity "provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority." (Citations and punctuation omitted.) Austin , 294 Ga. at 774, 755 S.E.2d 796.

A ministerial act is commonly 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.

(Citation and punctuation omitted.) Id. The determination of the "pivotal distinction between *332a discretionary and a ministerial duty is highly fact-specific," and a plaintiff's failure to point to "specific and clear procedures" required to be performed is not fatal at the motion to dismiss stage of a case. Austin , 294 Ga. at 774, 775, 755 S.E.2d 796. This is because "factual evidence which may or may not be developed during discovery ... can be considered on a subsequent motion for summary judgment." Id. at 775, 755 S.E.2d 796.

In this case, the complaint alleges that Ray was injured when a former sheriff's deputy, Michael Carroll, who had indisputably retired in lieu of dismissal two years before, shot him while working as an armed security guard in an apartment complex, resulting in Ray's paralysis from the waist down. Ray's claim against the individual defendants is based upon a theory that they were involved in providing him with a letter stating that he merely retired, rather than retired in lieu of dismissal. He asserts that the letter created the false impression that Carroll honorably retired from the Fulton County Sheriff's Office and that it was foreseeable to the defendants that he would use the letter "to secure future employment as a peace officer - and even as an armed

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Related

Govea v. City of Norcross
608 S.E.2d 677 (Court of Appeals of Georgia, 2004)
Love v. Morehouse College, Inc.
652 S.E.2d 624 (Court of Appeals of Georgia, 2007)
Austin v. Clark
755 S.E.2d 796 (Supreme Court of Georgia, 2014)
U-HAUL COMPANY OF ARIZONA Et Al. v. RUTLAND Et Al. and Vice Versa.
824 S.E.2d 644 (Court of Appeals of Georgia, 2019)
Medical Center of Central Georgia, Inc. v. City of Macon
757 S.E.2d 207 (Court of Appeals of Georgia, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
830 S.E.2d 329, 350 Ga. App. 878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-v-jackson-gactapp-2019.