FIRST DIVISION

DOYLE, C. J.,

PHIPPS, P. J., and BOGGS, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

July 16, 2015

In the Court of Appeals of Georgia

A15A0549. GEORGIA DEPARTMENT OF CORRECTIONS v.

GRADY MEMORIAL HOSPITAL CORPORATION.

A15A0550. DOUGLAS COUNTY v. GRADY MEMORIAL

HOSPITAL CORPORATION.

PHIPPS, Presiding Judge.

GradyMemorial HospitalCorporation d/b/a GradyHealth System(“Hospital”)

filed a complaint against the Georgia Department of Corrections (“DOC”) and

Douglas County, Georgia, seeking payment for emergency medical care provided by

the Hospital to an inmate who had been injured while housed at the Douglas County

Jail. The DOC and DouglasCountymoved for summary judgment based on sovereign

immunity; Douglas County additionally moved for summary judgment based on the

Hospital’s alleged failure to comply with the notice provisions of OCGA § 36-11-1.
The trial court denied both defendants’ motions for summary judgment. For the

reasons that follow, we reverse the judgments.

On appeal from the grant or denial of a motion for summary

judgment, we conduct a de novo review of the law and evidence,

viewing the evidence in the light most favorable to the nonmovant, to

determine whether a genuine issue of material fact exists and whether

the moving party was entitled to judgment as a matter of law.1

Further, “[w]hether sovereign immunity has been waived is a matter of law, which we

review de novo.”2

The record revealsthat Shaun Hood was an inmate at a DOC state prison when

the DOC transferred physical custody of Hood to the Douglas County Sheriff on or

aboutJuly 10, 2008 pursuant to a superior court production order, so that Hood would

be available for trial in a Douglas County criminal case. The production order further

provided that after his court appearance, Hood was to be returned by the Douglas

County Sheriff or his deputies to the custody of the DOC. On or about August 11,

1 Warnell v. United Government of Athens-Clarke County, 328 Ga. App. 903

(763 SE2d 284) (2014) (citation omitted).

2 DeKalb County v. Kirkland, 329 Ga. App. 262, 265 (764 SE2d 867) (2014)

(citation omitted); see Ga. Dept. of Nat. Res. v. Center for a Sustainable Coast, 294

Ga. 593, 596 (1) (755 SE2d 184) (2014).

2
2008, while he was being housed in the Douglas County Jail, Hood was injured.

Douglas County sheriff’s deputies transported Hood to Grady Memorial Hospital,

where he remained until August 31, 2008. The sheriff’s deputiesreturned Hood to the

custody of the DOC in September 2008.

 Case No. A15A0549

1. The trial court denied the DOC’s motion for summary judgment on the basis

that the state’s sovereign immunity was waived under OCGA § 42-5-2. The DOC

contends that this was error because, inter alia, OCGA § 42-5-2 requires the

governmental entity to have physical custody of the inmate, which the DOC did not.

Except as specifically provided in this Paragraph, sovereign

immunity extends to the state and all of its departments and agencies.

The sovereign immunity of the state and its departments and agencies

can only be waived by an Act of the General Assembly which

specifically providesthatsovereign immunity isthereby waived and the

extent of such waiver.3

The party seeking to benefit from a waiver of sovereign immunity has the burden of

establishing that sovereign immunity has been waived.

4

3

 Ga. Const. 1983, Art. I, § II, Para. IX (e).

4

 See Kirkland, supra.

3
The Hospital has contended, below and on appeal, that OCGA § 42-5-2

establishes a waiver of sovereign immunity. That statute pertinently provides:

[I]t shall be the responsibility of the governmental unit, subdivision, or

agency having the physical custody of an inmate to maintain the inmate,

furnishing him . . . any needed medical and hospital attention. . . . [I]t

shall remain the responsibility of the governmental unit having the

physical custody of an inmate to bear the costs of such medical and

hospital care, if the custody of the inmate has been transferred from the

department pursuant to any order of any court within this state. 

The cited statute does not establish a waiver of sovereign immunity under the

circumstances presented in this case, because Hood was not in the physical custody

of the DOC at the time he was injured and taken for treatment at the Hospital.

Physical custody of Hood had been transferred from the DOC to the Sheriff of

Douglas County pursuant to a court order. Under the express terms of OCGA § 42-5-

2, the DOC was not responsible for the costs of Hood’s medical care.

There being no waiver of sovereign immunity in this case pursuant to OCGA

§ 42-5-2, the trial court erred by denying the DOC’s motion for summary judgment

based on sovereign immunity.

4
Case No. A15A0550

2. Douglas County contends that, even assuming arguendo that sovereign

immunity for counties was waived by OCGA § 42-5-2, the trial court erred by

concluding that the Hospital had complied with the notice requirement of OCGA §

36-11-1.

OCGA § 36-11-1 pertinently provides: “All claims against counties must be

presented within 12 months after they accrue or become payable or the same are

barred.” “[W]hile the . . . statute requires simply that a claim be presented within 12

months, the cases have held thatsuch claims must be presented in writing, and a mere

oral statement is insufficient.”5

 “Formal, written notice is required.”6 The burden is

on the plaintiff to prove that it substantially complied with the statute.7

5 Doyal v. Dept. of Transp., 142 Ga. App. 79, 80 (234 SE2d 858) (1977)

(citations omitted). See generally Burton v. DeKalb County, 202 Ga. App. 676, 677

(415 SE2d 647) (1992) (the requirements of the statute were substantially complied

with where the claimant had given timely written notice of the grievance to the

governing authority). 

6 Cobb v. Board of Commissioners &c., 151 Ga. App. 472, 473 (2) (260 SE2d

496) (1979) (citation omitted).

7

Jones v. City of Willacoochee, 299 Ga. App. 741, 742 (683 SE2d 683) (2009).

5
In its appellate brief, the Hospital points to the following as evidence that it

served the required notice on Douglas County: the Hospital’s discovery response in

which counsel for the Hospital stated that the Hospital had sent a bill to the Douglas

County Police Department showing Hood’s medical costs; an unsigned form titled

“MedicalCostReimbursementReport,” on which Hood’s name and medical expenses

were written, and which Douglas County apparently would submit or would have

submitted to the DOC; a letter purportedly written by counsel for the Douglas County

Sheriff to an official at the DOC; a printout of an email regarding the hospital bill,

purportedly written by counsel for Douglas County and directed to an individual

whose relationship to this case was not indicated; and written summaries of phone

conversations purportedly held between various parties regarding the medical bill.

None of the documents was sworn, certified or otherwise authenticated.

Unauthenticated documents cannot be considered in opposition to a motion for

summary judgment.

8

In any event, the Hospital has not pointed to any formal, written

8 Cordell v. Bank of N. Ga., 295 Ga. App. 402, 407 (1) (b) (672 SE2d 429)

(2008); Lee v. CSX Transp., 233 Ga. App. 30, 31 (503 SE2d 309) (1998).

6
notice of the claim that it gave to Douglas County.

9 Therefore, the trial court erred by

denying Douglas County’s motion for summary judgment.

3. In light of our holding in Division 2,

10 we do not consider Douglas County’s

contention that it was entitled to summary judgment on the additional ground that

“OCGA § 42-5-2 does not create a cause of action against Georgia counties.”

Judgments reversed. Doyle, C. J., and Boggs, J., concur fully in Divisions 1

and 3, and concur in judgment only as to Division 2.

9

 See Cobb, supra.

10

 Supra.

7