Appellant Marilyn Summerlin, in her capacity as the mother of 18-year-old George Summerlin and the administratrix of his estate, filed a wrongful death action against Georgia Pines Community Service Board the board, for the wrongful death of her son. At the time of his death, George was a patient at Georgia Pines, a residential facility for the care and treatment of individuals with mental illness, mental retardation, and addiction. Summerlin alleges in her complaint that Carlos Hernandez and Charles Whiddon, health care workers working at Georgia Pines pursuant to the board’s use of an outside staffing company, negligently cared for her son and that their negligence caused his death. Summerlin also asserts that Hernandez and Whiddon were employees of the board, thus rendering the board liable for their negligent acts and omissions. After filing its answer, the board moved to dismiss the complaint based on sovereign immunity, claiming that under the Georgia Tort Claims Act, OCGA § § 50-21-20 et seq., immunity is waived only for the acts of “state employees” and that Hernandez and Whiddon were borrowed servants, not employees of the state. The trial court denied the motion and the Court of Appeals reversed, holding that borrowed servants are not state employees for purposes of the GTCA. country-region GeorgiaPines Community Svc. Bd. v. Summerlin, 296 placeStateGa.App. 32, 36-38 673 SE2d 582 2009. We granted Summerlin’s petition for certiorari to the Court of Appeals to consider what constitutes an “employee” as that term is used in OCGA § 50-21-22 7, and to determine the scope of the Act’s waiver of sovereign immunity. 1. OCGA § 50-21-23 a of the Georgia Tort Claims Act waives the sovereign immunity of the state for torts committed by state officers or employees acting within the scope of their official duties or employment, and provides that the state “shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances,” subject to the exceptions and limitations set forth in the Act. There is no dispute here that the board is a state agency for which sovereign immunity has been waived and that as a state agency it is liable for the negligent acts of its employees. Youngblood v.Gwinnett Rockdale Newton Community Svc. Bd. , 273 Ga. 715 1 545 SE2d 875 2001; OCGA § 50-21-23 a. The question in this case is whether Hernandez and Whiddon, as alleged borrowed servants, come within the definition of a “state employee” so as to render the board liable for their negligence.
2. OCGA § 50-21-22 7 defines a “state officer or employee” in pertinent part as an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state. Thus, as pertinent to this appeal,1 the Act defines a “state employee” as an “employee” of the state.2 This tautological definition provides no specific or detailed definition of who is an “employee” as contemplated in the Act. In the absence of such a definition, we must look diligently for the intention of the General Assembly. OCGA § 1-3-12 a.
