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Davis v. Standifer10/11/2005
n of sexual abuse fell within assault and battery exception); Collier v. Whitworth, 205 Ga. App. 758, 759 (423 SE2d 440) (1992) (allegation of false imprisonment fell within exception).
Davis' claims for extreme mental and emotional anguish and harm, assault under color of state law, and violation of her state constitutional rights likewise fall within the exception found in OCGA § 50-21-24 (7) for assault and battery. In determining whether the exception applies, our focus is not on which particular state law causes of action a plaintiff has set forth in her complaint, but rather on the underlying conduct that allegedly caused the plaintiff's loss. See Dept. of Human Resources v. Coley, 247 Ga. App. 392, 393-394 (1) (544 SE2d 165) (2000); Santamorena, 237 Ga. App. at 61 (1) (a). Any alleged losses arising out of conduct that would constitute the common law tort of assault or battery upon the plaintiff's person fall within the exception, irrespective of what particular state law causes of action the plaintiff brings in order to recover for those losses (including state constitutional claims). See id.
Here, Davis' amended complaint shows that the losses she suffered arose out of Standifer's sexual assault upon her, which, if true, plainly constituted an assault and battery upon her person. Thus, Davis' claims for extreme mental and emotional anguish and harm, assault under color of state law, and violation of her state constitutional rights are barred by the GTCA's exception for assault and battery. See Bd. of Public Safety v. Jordan, 252 Ga. App. 577, 584 (1) (556 SE2d 837) (2001) (looking past claim of intentional infliction of emotional distress to whether underlying conduct that caused plaintiff's losses fell within OCGA § 50-21-24 (7)); Premo, 227 Ga. App. at 29 (4) (claim of violation of plaintiff's liberty interests fell within assault and battery exception); Miller v. Dept. of Public Safety, 221 Ga. App. 280, 281 (470 SE2d 773) (1996) (claim of violation of state constitutional rights by GSP patrol officer fell within assault and battery exception).
Nor can Davis circumvent the assault and battery exception by alleging that GSP and DPS were negligent or deliberately indifferent in their hiring, instruction, supervision, control, and discipline of Standifer, or by alleging that they acquiesced to his unconstitutional conduct. When analyzing whether the exceptions to liability found in OCGA § 50-21-24 (7) apply in a given case, "we do not look at the duty allegedly breached by the government." Santamorena, 237 Ga. App. at 61 (1) (a). See also Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 71-72 (1) (456 SE2d 642) (1995) (focus of the assault and battery exception is not on the act or omission of the government entity exercising oversight authority over the individual who committed the tort). Again, the focus is on the underlying conduct that produced the loss, and whether that conduct constituted an assault or battery, as it did in the present case based on Davis' amended complaint. Santamorena, 237 Ga. App. at 61 (1) (a); Hutchinson, 217 Ga. App. at 71-72 (1).
In sum, we conclude the trial court did not err in dismissing under the GTCA all of Davis' state law claims brought against GSP and DPS. The exception to the state's waiver of sovereign immunity contained in OCGA § 50-21-24 (7) applies in this case based on the allegations of Davis' amended complaint.
2. Federal Claims
In her amended complaint, Davis also asserts federal constitutional claims against Standifer, GPS, and DPS pursuant to 42 USC § 1983. Davis argues that the trial court erred in dismissing her federal constitutional claims. Davis' contention is clearly with
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