In the case of Hartley v. Agnes Scott College, the Supreme Court addressed the question “whether a campus police officer employed by a private college qualifies as a “state officer or employee” who may assert immunity from tort suits under the Georgia Tort Claims Act.” Last year, a plurality decision of the Court of Appeals concluded that the defendant Agnes Scott College police officers were entitled to immunity. Agnes Scott College v. Hartley, 321 Ga. App. 74 (741 SE2d 199) (2013).
In reversing the Court of Appeals, Associate Justice David Nahmias, a Harvard Law graduate who clerked for U. S. Supreme Court Justice Antonin Scalia, wrote, “After considering the GTCA as a whole, rather than only its definitions section, we disagree, because it is clear that the Agnes Scott officers were not acting for any state government entity when they committed the alleged torts.”
The plaintiff in this case contended contends that the private college police officers could not be immune because they do not qualify as state officers or employees as defined in OCGA § 50-21-22 (7), which says in full:
“State officer or employee” means an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state. The term state officer or employee also includes any natural person who is a member of a board, commission, committee, task force, or similar body established to perform specific tasks or advisory functions, with or without compensation, for the state or a state government entity, and any natural person who is a volunteer participating as a volunteer, with or without compensation, in a structured volunteer program organized, controlled, and directed by a state government entity for the purposes of carrying out the functions of the state entity. This shall include any health care provider and any volunteer when providing services pursuant to Article 8 of Chapter 8 of Title 31. An employee shall also include foster parents and foster children. Except as otherwise provided for in this paragraph, the term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity. “
The Court of Appeals had relied on the Campus Policemen Act, OCGA §§ 20-8-1 to 20-8-7, which gives campus police who are POST certified the same law enforcement powers as other police. The dissent in the Court of Appeals pointed out language in the statute excluding private college police from the definition of “state officer or employee.”
Justice Nahmias, in writing for the Supreme Court, saw it differently, viewing the Campus Policemen Act in the context of the Georgia Tort Claims Act which provides the exclusive remedy for tort claims against state government. In reviewing the legislative history of the GTCA, Justice Nahmias cited Kenneth L. Shigley & John D. Hadden, Georgia Law of Torts – Trial Preparation and Practice § 15:3 (2013 ed.), as follows:
“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 detailed analysis of the Georgia Tort Claims Act, the Supreme Court concluded that the campus police officers employed a private college clearly were not acting on behalf of any “state government entity,” and therefore did not benefit from the immunity provided to officers acting in such capacity.
The book chapter quoted by the Supreme Court was a collaboration with co-author John Hadden, a brilliant young man who did most of the heavy lifting of research and drafting on that portion of the book. The quoted account of history of practice prior to enactment of the GTCA grew out of Ken Shigley’s experience. From about 1982 to 1992, much of his practice at an insurance defense law firm involved defense of state officials and employees of nearly all departments and agencies of state government as outside counsel retained by the Georgia Department of Administrative Services Risk Management Division.
Since the mid-1990s, that experience has proven useful in representing injury victims and their families in significant liability cases against state agencies under the Georgia Tort Claims Act which was enacted in 1992. These have included cases based upon operation of state vehicles, highway design, etc. Two of the most notable cases against the State of Georgia have included catastrophic crashes of vans or buses carrying large groups of college students.
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 representation of plaintiffs in cases of castastrophic personal injury and wrongful death. In 2012, he was included in the “short list” of nominees for the Court of Appeals by the Georgia Judicial Nominating Commission.