Killer Practice Point: ante litem notice to state agencies and municipalities

Something that comes up from time to time, in personal injury matters especially, is the requirement to provide ante litem notice to the state prior to filing suit. The Georgia Tort Claims Act (GTCA), which governs claims against state agencies, is codified at O.C.G.A. § 50-21-20 et seq., and has a few strict requirements. Of course, any deficiency will be raised as an affirmative defense, and could be fatal to your client’s case… such a mistake will almost certainly lead to a Bar Grievance and a legal malpractice claim against you and your law firm.

To invoke the waiver of sovereign immunity in a claim against the State, and before a claim may be filed against the State, ante litem notice must be given in strict compliance with statutory requirements codified at O.C.G.A. § 50-21-26. This statute requires that the ante litem notice “shall be given in writing within 12 months of the date the loss was discovered or should have been discovered[.]” See O.C.G.A. § 50-21-26(a)(1). This written ante litem notice must contain the following information:

• The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim;
• The time of the transaction or occurrence out of which the loss arose;
• The place of the transaction or occurrence;
• The nature of the loss suffered;
• The amount of the loss claimed; and
• The acts or omissions which caused the loss.

See O.C.G.A. § 50-21-26(a)(5). This written notice must be served by certified mail, return receipt requested, on the Risk Management Division of the Department of Administrative Services, and also delivered to the responsible agency. See O.C.G.A. § 50-21-26(a)(2).

The GTCA is intended to balance the application of sovereign immunity against the need for limited “exposure of the state treasury to tort liability.”[1] Failure to comply with the ante litem notice requirements means that the State “does not waive sovereign immunity, and therefore, the trial court lacks subject matter jurisdiction.”[2]

Strict compliance with the GTCA is required,[3] although what “strict compliance” actually means is an open question, because the required items of notice must only be given “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.”[4] For example, the Georgia Supreme Court has held that “the rule of strict compliance does not demand a hyper-technical construction that would not measurably advance the purpose of the GTCA’s notice provisions.”[5] Courts in Georgia have held that strict compliance was present in cases where a plaintiff sent the ante litem notice to the wrong agency by mistake,[6] where the ante litem notice did not specify particular dates but called an ongoing nuisance “constant,”[7] and where the plaintiff failed to name the proper entity in the notice, when the actual entity engaged in settlement negotiations prior to the expiration of the ante litem period.[8] Generally speaking, where a plaintiff fails to name or specify one of the required items of notice at all, and instead attempts to use a vague approximation, or fails to serve the ante litem notice on the statutorily-required parties, the notice will be found to be deficient and the suit will be barred based on sovereign immunity.[9]

Actions against municipalities are covered by a separate ante litem notice statute, O.C.G.A. § 36-33-5. The major difference is that it must be presented within six months, otherwise the requirements of the written ante litem notice are substantially similar: the claimant “…shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.” See O.C.G.A. § 36-33-5(b). Unlike the ante litem to the State, ante litem notice to municipalities “…shall be served upon the mayor or the chairperson of the city council or city commission, as the case may be, by delivering the claim to such official personally or by certified mail or statutory overnight delivery.” O.C.G.A. § 36-33-5(f).

If you have a potential case that involves an injury caused by an employee of the State or a municipality, then you need to identify as quickly as possible which entity has responsibility for the employee’s acts, the basic details of what happened and where it happened, and what the injuries to your client are. And while you don’t have to give an exact figure for damages, and you won’t be held a dollar figure in a subsequent case–note, that’s a major difference form a Federal Tort Claims Act case!–you absolutely must put some dollar figure in the ante litem notice, or it’s very likely that your claim will be denied, or ignored, and once you file your case you will be facing a motion to dismiss based on sovereign immunity not being waived. Be careful out there!

Footnotes:

[1] Bd of Regents of Univ. Sys. of Georgia v. Myers, 295 Ga. 843, 845 (2014), citing Norris v. Ga. Dept. of Transp., 268 Ga. 192 (1997) (internal quotation marks omitted).

[2] Id., citing O.C.G.A. § 50-21-26(a)(3).

[3] Id. See also Johnson v. E.A. Mann & Co., 273 Ga. App. 716, 722 (2005) (“[s]ubstantial compliance with the [Tort Claims Act] is inadequate to waive sovereign immunity.”), citing Sylvester v. Dept. of Transp., 252 Ga. App. 31, 31-32 (2001).

[4] O.C.G.A. § 50-21-26(a)(5).

[5] Cummings v. Ga. Dept. of Juvenile Justice, 282 Ga. 822, 824 (2007).

[6] Id.

[7] Savage v. E.R. Snell Contractor, Inc., 295 Ga. App. 319, 325-26 (2008).

[8] Georgia Dept. of Transp. v. Griggs, 322 Ga. App. 519, 521-22 (2013).

[9] See, e.g., E.A. Mann & Co., 273 Ga. App. at 721-22 (failed to name negligent entity); Perdue v. Athens Tech. Coll., 283 Ga. App. 404, 408 (2007) (failed to put specific amount of damages); Georgia Dept. of Transp. v. Baldwin, 292 Ga. App. 816, 906-07 (2008) (failed to specify wrongful death of unborn fetus); Myers, 295 Ga. at 846 (failed to state amount of loss); Dorn v. Georgia Dept. of Beh Health and Dev. Disabilities, 329 Ga. App. 384, 387 (2014) (failed to state amount of loss, “monetary value of decedent’s life” inadequate); Driscoll v. Bd of Regents of Univ. Sys. of Georgia, 326 Ga. App. 315, 317 (2014) (failed to state amount of loss).