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Georgia State Board of Pardons and Paroles v. Finch9/30/2004
provides that the State's sovereign immunity is waived
for the torts of state officers and employees while acting within the scope of their official duties or employment. . . . ; 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.
If Stephens's actions did not constitute these enumerated torts, of course no recovery by Finch is possible. But Finch cannot recover from the board for Stephens's actions even if he is able to prove that those actions did amount to the torts alleged. The scope of Stephens's employment certainly did not encompass false arrest, false imprisonment, battery, or infliction of emotional distress. Consequently, even if a jury finds that Stephens's actions did satisfy the elements of the torts alleged, recovery from the board is prohibited because the State clearly has not waived its immunity for these torts.
Moreover, both the statute and the case law establish that the State may be held liable in tort actions only within the Act's limits. See, e.g., Dept. of Transp. v. Bishop, 216 Ga. App. 57, 58 (1) (453 SE2d 478) (1995). OCGA § 50-21-24 lists exceptions to the State's waiver of immunity, and subsection (7) provides that the State has no liability for any losses resulting from " ssault, battery, false imprisonment, false arrest, malicious prosecution," and certain other enumerated torts. This exception to the State's waiver of immunity therefore precludes the board's liability for most, if not all of Finch's claims, which were premised upon Stephens's alleged commission of battery, false arrest, and false imprisonment. A jury therefore could not decide that the board was vicariously liable for the actions of Stephens, and the trial court erred in denying the board's motion to dismiss.
2. The act also bars Finch from recovering on his claim that the board negligently retained Stephens. OCGA § 50-21-24 (2) excludes from the State's waiver of sovereign immunity "losses resulting from . . . he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused." The term "discretionary function or duty" is defined by the Act as "a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors." OCGA § 50-21- 22 (2). This language means "that the state employee must exercise a policy judgment in choosing among various alternative actions based on social, political, and economic factors." (Citation and punctuation omitted.) Lewis v. Dept. of Human Resources, 255 Ga. App. 805, 811 (567 SE2d 65) (2002). Employment decisions, including retaining an employee, necessarily require consideration of numerous factors and the exercise of deliberation and judgment. They are therefore "precisely the types of administrative action the discretionary function exception seeks to shield from judicial second-guessing." Bd. of Pub. Safety v. Jordan, 252 Ga. App. 577, 585 (1), n. 13 (556 SE2d 837) (2001). The board's retention of Stephens was a discretionary function, for which the State has not waived its liability.
In addition, the State's immunity under OCGA § 50-21-24 (7) is for "losses" that result from the specified intentional torts. We therefore "do not look at the duty allegedly breached by the government, but focus on the act
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