Judge’s Powers to Dismiss a Case

When Can a Judge Dismiss an Auto Accident Claim Against a County Sheriff?

A motorist sued Douglas County and a deputy sheriff alleging that she suffered injuries after their vehicles collided. The plaintiff then moved to add the Douglas County Sheriff as a party and subsequently filed an amended complaint against the sheriff, the deputy sheriff, and Douglas County. The three defendants then filed a motion to dismiss the plaintiff’s amended complaint and opposed her motion to add a party. The trial court granted the defendants’ motion to dismiss and denied the plaintiff’s motion to add the sheriff.


On August 25, 2019, the plaintiff and the deputy sheriff were involved in an automobile collision in which the plaintiff alleged resulted in injuries and damages.

The plaintiff subsequently mailed a letter via certified mail to the Douglas County Administrator and the Douglas County Commission Chair notifying them of the incident to satisfy the notice requirement of O.C.G.A. § 36-11-1. Following negotiations between the plaintiff and the county’s insurance carrier, the plaintiff filed a complaint against the deputy sheriff and Douglas County. The deputy sheriff  and Douglas County filed an answer and a motion to dismiss the plaintiff’s complaint arguing, inter alia, that the sheriff should’ve been substituted for the deputy sheriff, but that any claim against the sheriff was barred because ante-litem notice wasn’t provided to the sheriff in accordance with O.C.G.A. § 36-11-1.

In the first appearance of this dispute before the Court of Appeals, it affirmed the trial court’s dismissal. But on February 20, 2024, the Supreme Court of Georgia vacated that opinion and remanded the case for reconsideration in light of Collington v. Clayton County (2024).

The Review by the Court of Appeals

In reviewing the grant of a motion to dismiss, an appellate court must construe the pleadings in the light most favorable to the appellant with all doubts resolved in the appellant’s favor. Quoting a 2015 decision, Judge Gobeil also noted that the Court of Appeals has also held that:

a motion to dismiss should not be granted unless the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof. Therefore, the movant must establish that the plaintiff cannot possibly introduce evidence within the allegations of the complaint entitling [her] to the relief sought.

O.C.G.A. § 36-11-1 provides that

[a]ll claims against counties must be presented within 12 months after they accrue or become payable or the same are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.

In Collington, after a detailed analysis of the historical context of O.C.G.A. § 36-11-1, the Supreme Court of Georgia clearly and unequivocally held that “official-capacity claims against a county sheriff for a deputy’s allegedly negligent use of a county-owned vehicle are claims against the county itself, and thus, the presentment requirement of O.C.G.A. § 36-11-1 applies to such claims, including the plaintiff’s official-capacity claims against the Sheriff in this case.” Accordingly, the trial court didn’t err in finding that O.C.G.A. § 36-11-1 was applicable to this case.

But the plaintiff also claimed that the trial court erred in ruling that a claim against a sheriff in his official capacity wasn’t sustainable even where timely notice upon county officials has taken place. Judge Gobeil said that based on the Georgia Supreme Court’s recent decision in Collington, the judge and the rest of the panel agreed.

The Court explained that while the statute is silent regarding how presentment is to be made, “our appellate courts have consistently construed O.C.G.A. § 36-11-1 and its predecessors to require presentment of claims to the county governing authority,” quoting Collington. In fact, before the appellate court’s decision in Davis v. Morrison (2018), “no Georgia court had ever held that the presentment of claims to the county governing authority itself was inadequate to satisfy O.C.G.A. § 36-11-1, or that presentment to an entity other than the county governing authority was required.”

In Davis, the Court of Appeals explicitly held that O.C.G.A. § 36-11-1 applies both to the counties and to the sheriffs, when sued in their official capacities. Moreover, the Court held that claims against a sheriff are not sustainable without the ante-litem notice.

The Georgia Supreme Court explained further in Collington:

There is no justification for holding, contrary to more than a century of precedent, that presentment of claims against counties covered by O.C.G.A. § 36-11-1 to the county governing authority is insufficient to comply with the statute, and we overrule any cases from the Court of Appeals holding otherwise. Because a claim against a sheriff in his official capacity for the negligent use of a covered motor vehicle is a claim against a county under O.C.G.A. § 36-11-1, presentment to the county governing authority of a claim to which O.C.G.A. § 36-11-1 applies satisfies the statute’s presentment requirement.

Accordingly, the Court of Appeals determined that the plaintiff’s timely presentment of notice of her claims to the Douglas County Administrator and the Douglas County Commission Chair satisfied her burden under O.C.G.A. § 36-11-1. As a result, the Court reversed the trial court’s dismissal of the plaintiff’s claims against the sheriff in his official capacity and remanded the case to the trial court to conduct further proceedings. Morney v. Kiker, 2024 Ga. App. LEXIS 222, 2024 WL 2887718 (Ga. App. June 10, 2024).

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Our experienced Atlanta personal injury lawyers tackle tough personal injury questions every day, like whether the negligent use of a covered motor vehicle are “claims against counties.” For a free consultation, call 404-JUSTICE (404-587-8423) or use our online contact form.