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declining to overrule Moats I and noting that the case was pending before the Supreme Court on writ of certiorari
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A20A0140
05-05-2020
GREEN v. BALDWIN COUNTY BOARD OF COMMISSIONERS et al.
Lee & Ziegler, C. Ryan Lee, Konrad G. W. Ziegler, for appellant. Hollberg & Weaver, George M. Weaver, B. Pat Dutcher, for appellees.
Lee & Ziegler, C. Ryan Lee, Konrad G. W. Ziegler, for appellant.
Hollberg & Weaver, George M. Weaver, B. Pat Dutcher, for appellees.
McFadden, Chief Judge.
In this personal injury action, Brenda A. Green seeks to hold Baldwin County liable for injuries she alleges she sustained in a vehicle collision caused by the negligence of an on-duty deputy sheriff. She named two defendants in the action: the Baldwin County Board of Commissioners (hereinafter, the county) and deputy sheriff Todd W. Blackwell in his official capacity. (She did not sue Blackwell in his individual capacity.) The trial court granted summary judgment to the defendants, and we find no error. As a matter of law a county cannot be held vicariously liable for the actions of a deputy sheriff, and to the extent the claim against Blackwell can be construed as a claim against his employer, the Baldwin County sheriff, Green did not provide the sheriff with timely ante litem notice. So we affirm.
1. Facts and procedural background.
Viewed in the light most favorable to Green, as the party opposing summary judgment, see McBee v. Aspire at West Midtown Apts. , 302 Ga. 662, 663 (1), 807 S.E.2d 455 (2017), the evidence shows that on June 7, 2015, Green was in her vehicle, stopped at an intersection, when a vehicle driven by Blackwell rear-ended her. Green was injured in the collision. At the time of the collision, Blackwell was an on-duty Baldwin County sheriff's deputy.
Green filed her complaint on May 16, 2017. The record shows that she served the complaint on the two named defendants: the Baldwin County Board of Commissioners and Blackwell. The defendants moved for summary judgment on March 30, 2018. At that time, the Baldwin County sheriff had not received any ante litem notice or other notice of Green's claim. Green ultimately provided the sheriff with an ante litem notice on May 7, 2018.
2. Claim against the county.
As an initial matter, we note that the issue of whether a county board of commissioners is itself an entity capable of being sued was not raised below, but the parties and the trial court analyzed the claim against the board as a claim against the county. We do the same.
As a matter of law, the county is not vicariously liable to Green for the actions of Blackwell, because "[i]t is well established that deputy sheriffs are employees of the sheriff, not the county, and the county cannot be held vicariously liable as their principal." Cannon v. Oconee County , 353 Ga. App. 296, 299 (1), 835 S.E.2d 753 (2019) (citation and punctuation omitted). Green cites several authorities for the proposition that a claim against a sheriff or deputy sheriff should be considered a claim against the county, but these authorities do not concern a county's vicarious liability for the actions of a sheriff or deputy sheriff. Instead, they concern whether the sovereign immunity available to counties bars claims against sheriffs, deputy sheriffs, and other individual tortfeasors in their official capacities. See, e.g., Gilbert v. Richardson , 264 Ga. 744, 746 (2) n. 4, 452 S.E.2d 476 (1994) ; Marshall v. McIntosh County , 327 Ga. App. 416, 419-420 (2), 759 S.E.2d 269 (2014) ; Ankerich v. Savko , 319 Ga. App. 250, 252-253 (1), 734 S.E.2d 805 (2012) ; Strength v. Lovett , 311 Ga. App. 35, 38 (1), 714 S.E.2d 723 (2011).
3. Claim against Baldwin.
To the extent Green's claim against Blackwell in his official capacity may be construed as a claim against his employer, the Baldwin County sheriff, the trial court did not err in granting summary judgment because Green did not provide the sheriff with ante litem notice of the claim within the one-year time period set forth in OCGA § 36-11-1. See Moats v. Mendez , 349 Ga. App. 811, 814-815 (2), 824 S.E.2d 808 (2019) ; Davis v. Morrison , 344 Ga. App. 527, 531-532 (2), 810 S.E.2d 649 (2018). Green criticizes our whole-court decision in Moats and tacitly invites us to overrule it. We decline to do so, noting that the Moats decision is presently before our Supreme Court on writ of certiorari. Mendez v. Moats , 2019 Ga. LEXIS 855 (2019).
Green argues that the period for providing ante litem notice should be tolled under OCGA § 9-3-99, which governs the running of the limitation period in certain tort claims brought by victims of alleged crimes. Our Supreme Court, however, recently held that OCGA § 9-3-99 does not provide for the tolling of periods for giving ante litem notice. See Dept. of Pub. Safety v. Ragsdale , 308 Ga. 210, 839 S.E.2d 541 (2020). Although the Ragsdale decision addressed the ante litem notice requirements in Georgia's Tort Claims Act, see OCGA § 50-21-26 (a) (1), its rationale also applies here.
Judgment affirmed.
Doyle, P. J., and Hodges, J., concur.