Georgia Court of Appeals Discusses Ante Litem Notice Compliance in Recent Ruling


Lawsuits against the government, either state or federal, often come with a variety of specialized procedural hurdles. In Georgia, among these particular requirements that catch hapless litigants by surprise are the many special notice requirements that preclude a litigant from bringing suit against a state entity unless he or she gives proper notice of the suit. For instance, in a recent decision, Estate of Leonard, the Georgia Court of Appeals affirmed a trial court ruling holding that one unfortunate plaintiff was barred from bringing a tort suit against a county government for failing to adhere to the notice requirements under O.C.G.A. § 36-11-1.

Leonard arose from a collision on January 30, 2012. The plaintiff, an 82-year-old man, was riding on a bus owned by Whitfield County, Georgia. The plaintiff, who was sitting in a wheelchair that was secured by straps specifically designed to hold wheelchair-bound passengers, alleged that when the driver of the bus made a high speed turn, it caused the straps to detach, which, in turn, caused his wheelchair to tip over. As a result of the fall, the plaintiff sustained two broken legs that required surgery. Thereafter, the plaintiff was confined to a managed care facility. The plaintiff’s attorney sent notice to the County Attorney for Whitfield County and then filed suit on January 21, 2014. The county answered the complaint, asserting, inter alia, a defense that the plaintiff did not comply with the ante litem notice requirements provided under O.C.G.A. § 36-11-1. Following discovery, the county moved for summary judgment. The trial court denied this motion for summary judgment, finding that issues of fact precluded a finding that notice had not been accomplished. Following the denial of the motion for summary judgment, counsel for the plaintiff served a copy of the complaint on several of the county commissioners. Nevertheless, the county filed a second motion for summary judgment and included an affidavit from the county attorney stating that at all times material to this action, he had not been authorized by the county commissioners to accept notice of suit on behalf of the county. The trial court granted the motion for summary judgment, and the current appeal followed. During the course of the litigation, the plaintiff died, and the executor of his estate was substituted as the plaintiff.

On appeal, the estate argued that the trial court improperly granted summary judgment for two reasons:  (1) the plaintiff had substantially complied with the notice provisions in O.C.G.A. § 36-11-1; and (2) even if the plaintiff did not file timely notice, the filing time was subject to tolling for incapacity. Unfortunately for the plaintiff, the Court of Appeals found both arguments unavailing. First, O.C.G.A. § 36-11-1 provides that “claims against [county governments] must be presented within 12 months after they accrue or become payable or the same are barred.” The estate contended that sending notice to the county attorney was sufficient for compliance with O.C.G.A. § 36-11-1. However, as the county attorney declared in his affidavit, his firm was not authorized by the county to accept service of notice, and therefore the service of notice to the county attorney did not effectuate notice to the county.

Likewise, the Court of Appeals rejected the estate’s argument that the notice period should have been tolled because of the plaintiff’s alleged incapacity prior to his death. The Court of Appeals found that the trial court correctly determined that tolling was unwarranted because the estate had not established that the plaintiff was incapacitated. To the contrary, the Court of Appeals noted that the evidence showed the plaintiff was able to monitor and participate in health care decision-making and that he was able to find counsel and participate in early settlement negotiations. In addition, the court noted that none of the plaintiff’s family members had sought the appointment of a guardian prior to his death.

One judge did, however, dissent from the court’s ruling. In the dissenter’s view, the plaintiff had substantially complied with the notice provisions of O.C.G.A. § 36-11-1. The dissenting judge noted that even if the county attorney did not have actual authority to accept notice on behalf of the county, he did have apparent authority to do so. Indeed, the dissenter noted that the county attorney never told the plaintiff he did not have authority to accept notice and began to negotiate with the plaintiff upon receiving the notice. In light of the county attorney’s conduct, the dissenter reasoned the majority’s reliance on whether the attorney had formal authority was unwarranted and that it was reasonable for the plaintiff to assume notice had been effectuated. Indeed, the dissenter noted the apparent gamesmanship of the county attorney, who only sought summary judgment after the notice period had lapsed.

Although one judge sided with the plaintiff’s position, the court’s ruling shows that notice requirements are often strictly interpreted and enforced. Indeed, those who have been injured as a result of the negligence of a governmental entity should consider finding counsel experienced in bringing such claims in order to assure that what could be a meritorious action is not lost simply because a document is sent to the wrong place. The Atlanta car accident attorneys at Christopher Simon Attorney at Law are experienced with bringing negligence cases against Georgia state and municipal entities, and they are prepared to help you with a potential claim. Indeed, if you’ve recently been injured as a result of the possible negligence of a governmental actor and are interested in learning more about the viability of a potential claim, feel free to contact us for a free case consultation.

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