Marshall v. McIntosh Cnty.

The trial court erred in dismissing a wrongful death claim against the director of McIntosh County's 911 emergency telephone system in her individual capacity based on official immunity, as it was premature to conclude that the director's duties were discretionary rather than ministerial.

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These companion appeals involve a challenge to the trial court’s dismissal of a complaint for wrongful death on the grounds of sovereign and official immunity. Sandra S. Marshall, the surviving spouse and administratrix of the estate of her late husband, sued McIntosh County and the director of its 911 emergency telephone system, Sheila K. Deverger, in her official and individual capacities, alleging that the defendants were liable for refusing to respond to a 911 emergency telephone call. Pursuant to OCGA § 9-11-12 b 6, the trial court granted the defendants’ respective motions to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court concluded that the plaintiff’s claims against McIntosh County and Deverger in her official capacity were barred by sovereign immunity, and that her claim against Deverger in her individual capacity was barred by official immunity. The plaintiff now appeals the dismissal of her claims.

For the reasons discussed below, we affirm the dismissal of the plaintiff’s claims against McIntosh County and Deverger in her official capacity based on sovereign immunity. But at this early point in the litigation, where there has not yet been any discovery, the trial court erred in dismissing the plaintiff’s claim against Deverger in her individual capacity, and we thus reverse the dismissal of that claim.

Marshall v. McIntosh Cnty.

The trial court erred in dismissing a wrongful death claim against the director of McIntosh County's 911 emergency telephone system in her individual capacity based on official immunity, as it was premature to conclude that the director's duties were discretionary rather than ministerial.

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