Skip to main content


Reset A A Font size: Print

Court of Appeals of Georgia.


No. A13A0912.

Decided: November 20, 2013

Laura Sauriol Burton, Jin Tae Kim, for City of Atlanta et al. Shaun Russell Cade, for Mitcham.

Barto Mitcham filed a negligence action against the City of Atlanta (“City”) and George Turner (in Turner's official capacity as “Police Chief for City of Atlanta”), alleging that Mitcham was injured as a result of the City's and Turner's failure to provide the medical care he needed while he was in their custody. The City and Turner appeal from the trial court's denial of their motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Finding no error, we affirm.

A motion to dismiss brought under OCGA § 9–11–12(b)(6) for failure to state a claim upon which relief can be granted should be granted only when the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.1

“We review the denial of a motion to dismiss de novo.”2

In his complaint, Mitcham pertinently alleged the following. In October 2010, Mitcham was in the custody of the Atlanta Police Department, having been arrested for “hit and run.” While in custody, Mitcham became ill and was taken to a hospital in connection with “low blood sugar associated with diabetes.” Upon Mitcham's discharge from the hospital, the City and Turner were notified of the need to monitor Mitcham's blood sugar levels and instructed to provide him with insulin on a regular schedule. The City and Turner failed to monitor and properly regulate Mitcham's insulin levels as instructed, and Mitcham became ill and received serious and permanent injuries as a result of the City's and Turner's negligence.

Citing OCGA § 36–33–1(b),3 the City and Turner moved to dismiss the action for failure to state a claim, asserting that the City is entitled to sovereign immunity because it was “engaged in the performance of [a] governmental function at the time [Mitcham] allegedly suffered his injuries”;4 and that Turner is entitled to sovereign or governmental immunity because he was sued in his official capacity, and the claim against him is thus equivalent to the claim against the City.5

Mitcham countered that the provision of adequate medical attention to inmates under the City's and Turner's custody and control was, instead, a ministerial act; thus, the City and Turner are not entitled to sovereign immunity. The trial court agreed, and denied the motion to dismiss.

“The trial court's ruling on the motion to dismiss on sovereign immunity grounds is reviewed de novo, while factual findings are sustained if there is evidence supporting them.”6

Under OCGA § 36–33–1(b), “[m]unicipalities are not liable for negligence in the performance of [their] governmental, as opposed to their ministerial[,] functions.”7 “A ministerial function has been defined as ‘one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.’ “8 A governmental function has been defined as one which “involves the exercise of deliberate judgment and wide discretion”;9 or, an act “where the choice of how to do it is left with those duly vested with the power of government to make the judgment.”10

In Cantrell v. Thurman,11 this court concluded:

Providing adequate medical attention for inmates under defendants' custody and control is a ministerial act by the sheriff and his or her deputies and does not involve the exercise of discretion to provide medical care, because medical care is a fundamental right and is not discretionary ․; thus, such act is not subject to either sovereign immunity or official immunity . 12

Although Cantrell involved a sheriff's duty to furnish medical aid to persons confined in the jail,13 the responsibility to furnish needed medical attention to an inmate in custody is not limited to sheriffs; “it is the responsibility of the government unit, subdivision or agency having custody of an inmate to ․ furnish[ ] him ․ any needed medical and hospital attention.”14 Notably, as the Georgia Supreme Court recognized in Murphy v. Bajjani,15

The United States Supreme Court has ruled that the [U.S.] Constitution imposes upon the State affirmative duties of care and protection [including medical care] with respect to particular individuals ․ when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself.16

Thus, the provision of medical care to inmates in the City's and Turner's custody is a ministerial act; the duty is imposed by statute,17 and medical care is a fundamental right of inmates in custody.18 Accordingly, sovereign or governmental immunity is not applicable in this case.19

The City and Turner assert that Cantrell is inapposite because that case involved a federal claim brought pursuant to 42 USC § 1983, while the instant case does not. The assertion is without merit, because Cantrell involved not only a federal claim, but negligence claims based on state law; the court's discussion of the provision of adequate medical care in that case concerned state law.20

The City and Turner also contend that the medical care at issue in this case was not ministerial because “[m]inisterial or proprietary functions are performed in the municipality's private character and for public business purposes,”21 and that “what is significant is whether the character of the enterprise is ‘primarily a source of revenue,’ rather than being used primarily for the benefit of the public.” However, the authorities that the City and Turner cite do not involve the provision of medical attention to inmates under the custody and control of a governmental entity.22

The trial court did not err by denying the City's and Turner's motion to dismiss for failure to state a claim based on sovereign immunity.23

Judgment affirmed.

PHIPPS, Chief Judge.

ELLINGTON, P.J., and BRANCH, J., concur.

Was this helpful?

Thank you. Your response has been sent.

Copied to clipboard