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Davis v. Standifer10/11/2005
3) (1996)." Hardin v. Phillips, 249 Ga. App. 541, 545 (1) (547 SE2d 565) (2001). If the underlying factual allegations in Davis' complaint, even as amended, include "the disclosure of some fact which will necessarily defeat the claim ," the complaint was properly dismissed. (Punctuation and citation omitted.) Earl v. Mills, 275 Ga. 503, 504 (2) (570 SE2d 282) (2002).
Davis' amended complaint contains the same factual disclosures as her original complaint, and, as explained above, those facts defeat her state law claims against Standifer by showing that his alleged misconduct occurred within the scope of his official duties. That is, the amendment to Davis' complaint alleged no new or different facts, and it did not alter or delete the factual description of the time, place, and circumstances of the sexual assault disclosed in the original complaint. Rather, Davis did no more than amend her complaint to include an alternative, naked allegation that the same facts disclosed in the original complaint occurred outside the scope of Standifer's official duties as a patrol officer. Thus, the unchanged facts disclosed in the amended complaint clearly demonstrate that Standifer is entitled to official immunity under OCGA § 50-21-25 (a).
For these reasons, all of Davis' state law claims brought against Standifer were barred by the GTCA. This includes Davis' state constitutional claims, which arose out of the same allegations of underlying tortious conduct. See Premo, 227 Ga. App. at 29 (4). Consequently, the trial court did not err in granting Standifer's motion to dismiss the state common law and constitutional claims alleged against him in Davis' amended complaint.
(b) State Law Claims Alleged Against GSP and DPS
Because the trial court properly held that Standifer was immune from suit, Davis' only potential avenue of recourse under state law was against the state governmental entity that employed Standifer. OCGA § 50-21-25 (b). Pursuant to the GTCA,
he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state's sovereign immunity is waived subject to all exceptions and limitations set forth in this article.
(Emphasis supplied.) OCGA § 50-21-23 (a). Since Davis' amended complaint shows that Standifer was acting within the scope of his official duties as a state employee at the time of the alleged sexual assault, GSP and DPS have waived their sovereign immunity and are liable for the harm suffered by Davis during the traffic stop to the same extent as a private entity under like circumstances, "unless the alleged tortious act falls within one of the exceptions [to the state's waiver of sovereign immunity] set forth in OCGA § 50-21-24." (Punctuation, citation, and emphasis omitted.) Mattox, 221 Ga. App. at 546 (1).
We conclude that one of the exceptions to the state's waiver of sovereign immunity does apply in this case, namely, the exception found in OCGA § 50-21-24 (7), which specifically provides that " he state shall have no liability for losses resulting from . . . ssault, battery, false imprisonment." Clearly, this exception applies to Davis' state law claims for sexual assault, sexual battery, and false imprisonment. See, e.g., Georgia Military College v. Santamorena, 237 Ga. App. 58, 59-61 (1) (a) (514 SE2d 82) (1999) (allegation of rape fell within assault and battery exception); Sherin v. Dept. of Human Resources, 229 Ga. App. 621, 625 (4) (494 SE2d 518) (1997) (allegatio
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