BRAY v. WATKINS

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: November 7, 2023

S23C0836, S23G0836. BRAY et al. v. WATKINS.

PER CURIAM.

Latoya Bray filed an action against sheriff’s lieutenant Stormie

Watkins, in her official and individual capacities, for damages

allegedly caused by her failure to activate a tornado warning system

while working in a county emergency center. The trial court granted

summary judgment to Watkins, concluding in part that the public

duty doctrine negated any duty owed to Bray. In a split decision, the

Court of Appeals affirmed. See Bray v. Watkins, 367 Ga. App. 381

(885 SE2d 802) (2023). The majority opinion, the specially

concurring opinion, and the dissenting opinion disagreed about

whether the trial court erred by not considering whether sovereign

immunity barred the official-capacity claim and whether the official-

capacity claim needed to be remanded for the trial court to resolve
the sovereign immunity issue in the first instance. In her petition

for certiorari in this Court, Bray contends (1) the Court of Appeals

erred by concluding that the public duty doctrine foreclosed her

lawsuit and (2) the court’s discussion concerning sovereign

immunity was “misplaced.” For the reasons explained below, we

grant Bray’s writ of certiorari, vacate the Court of Appeals’s opinion,

and remand the case to the Court of Appeals.1

In the City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861)

(1993), we adopted the public duty doctrine, recognizing that “where

failure to provide police protection is alleged, there can be no

liability based on a municipality’s duty to protect the general

public,” and stated that “[t]he threshold issue in any cause of action

for negligence is whether, and to what extent, the defendant owes

the plaintiff a duty of care.” Id. at 27-28 (1). In a footnote, we noted

that “[t]he initial question of duty precedes any discussion of

1 “Our rules contemplate that we may grant a petition for certiorari and

dispose of the case summarily, without full briefing and oral argument,” and
we elect to do so here “because the issue we resolve would not benefit from
further briefing and argument.” Sanchious v. State, 309 Ga. 580, 581 n.1 (847
SE2d 166) (2020) (citation and punctuation omitted).

2
sovereign immunity, which is a defense rather than an inroad on one

of the elements of a tort.” Id. at 27 (1) n.1 (citation and punctuation

omitted). The Court of Appeals’s majority opinion relied on this

footnote for its holding that “where the public duty doctrine is

involved, the existence of a duty is a threshold issue and resolution

of that issue in favor of the defense moots the issues of sovereign and

official immunity.” Bray, 367 Ga. App. at 385 (2). Regardless of

whether the footnote in City of Rome was a holding that

jurisdictional matters need not be addressed before the question of

duty, any such holding was overruled by our later decisional law.

See McConnell v. Dept. of Labor, 302 Ga. 18, 18-19 (805 SE2d 79)

(2017) (holding that “[t]he applicability of sovereign immunity to

claims brought against the State is a jurisdictional issue” and

“[t]herefore, the applicability of sovereign immunity is a threshold

determination, and, if it does apply, a court lacks jurisdiction over

the case and, concomitantly, lacks authority to decide the merits of

a claim that is barred”). See also Georgia Ass’n of Pro. Process

Servers v. Jackson, 302 Ga. 309, 311-312 (1) (806 SE2d 550) (2017)

3
(vacating on direct appeal the portion of the trial court’s order which

dismissed the plaintiff’s claims on their merits and remanding with

direction that these claims be dismissed because they were barred

by sovereign immunity); New Cingular Wireless PCS, LLC v.

Georgia Dept. of Revenue, 303 Ga. 468, 470 (1) n.3 (813 SE2d 388)

(2018) (noting that “the [underlying] Court of Appeals opinion

should not be read for the proposition that the issue of sovereign

immunity may be pretermitted in order to consider the merits” and

reiterating that “the applicability of sovereign immunity is a

threshold determination” (citation and punctuation omitted)); Polo

Golf & Country Club Homeowners Ass’n, Inc. v. Cunard, 306 Ga.

788, 790 (1) (a) (833 SE2d 505) (2019) (“Sovereign immunity is a

threshold determination that must be ruled upon prior to the case

moving forward on the more substantive matters.” (emphasis in

original)).

The special concurring opinion rightfully concluded that

“[s]overeign immunity is a threshold issue that should be decided

before addressing the merits of a plaintiff’s claims,” Bray, 367 Ga.

4
App. at 386 (Gobeil, J., concurring specially), but then relied on a

footnote in Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682,

690 (859 SE2d 33) (2021)2 to conclude that remand to the trial court

to address sovereign immunity was unnecessary. See Bray, 367 Ga.

App. at 387 (Gobeil, J., concurring specially). We disapprove of the

footnote in Love to the extent it suggested that the trial court was

authorized to address the merits of claims that could have been

barred by sovereign immunity, without first conducting a threshold

jurisdictional review of such claims.

Because the applicability of the public duty doctrine is a merits

question, the Court of Appeals erred in affirming the trial court’s

2 In this footnote, we noted that “the trial court should have addressed

whether the doctrine of sovereign immunity barred” certain claims for
declaratory relief against government employees in their official capacities.
Love, 311 Ga. at 690 (1) n.5. That assertion was correct. However, we then went
on to affirm the trial court’s dismissal of the plaintiffs’ claims for failure to
state a claim, concluding that “because the [plaintiffs] also sought prospective
declaratory relief against the Board members and the Chief Appraiser in their
individual capacities, the claim would have survived the sovereign immunity
analysis as to those defendants in their individual capacities.” Id. To the extent
our footnote in Love suggested that the trial court “was authorized to address
the merits of [] claims” that could have been barred by sovereign immunity,
without first conducting a threshold jurisdictional review of such claims, we
were incorrect. See id.

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ruling on the official-capacity claims on the ground that the public

duty doctrine barred all of Bray’s claims without considering the

threshold jurisdictional question of whether sovereign immunity

barred Bray’s claims against Watkins in her official capacity. This

Court therefore grants the petition for writ of certiorari, vacates the

Court of Appeals’s opinion, and remands this case to the Court of

Appeals for proceedings consistent with this opinion.

Petition for writ of certiorari granted, judgment vacated, and
case remanded with direction. All the Justices concur, except Pinson,
J., not participating.

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317 Ga. 703
FINAL COPY

S23G0836. BRAY et al. v. WATKINS.

PER CURIAM.

Latoya Bray filed an action against sheriff’s lieutenant Stormie

Watkins, in her official and individual capacities, for damages

allegedly caused by her failure to activate a tornado warning system

while working in a county emergency center. The trial court granted

summary judgment to Watkins, concluding in part that the public

duty doctrine negated any duty owed to Bray. In a split decision, the

Court of Appeals affirmed. See Bray v. Watkins, 367 Ga. App. 381

(885 SE2d 802) (2023). The majority opinion, the specially

concurring opinion, and the dissenting opinion disagreed about

whether the trial court erred by not considering whether sovereign

immunity barred the official-capacity claim and whether the official-

capacity claim needed to be remanded for the trial court to resolve

the sovereign immunity issue in the first instance. In her petition
for certiorari in this Court, Bray contends (1) the Court of Appeals

erred by concluding that the public duty doctrine foreclosed her

lawsuit and (2) the court’s discussion concerning sovereign

immunity was “misplaced.” For the reasons explained below, we

grant Bray’s writ of certiorari, vacate the Court of Appeals’s opinion,

and remand the case to the Court of Appeals.1

In City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993),

we adopted the public duty doctrine, recognizing that “where failure

to provide police protection is alleged, there can be no liability based

on a municipality’s duty to protect the general public,” and stated

that “[t]he threshold issue in any cause of action for negligence is

whether, and to what extent, the defendant owes the plaintiff a duty

of care.” Id. at 27-28 (1). In a footnote, we noted that “[t]he initial

question of duty precedes any discussion of sovereign immunity,

which is a defense rather than an inroad on one of the elements of a

1 “Our rules contemplate that we may grant a petition for certiorari and

dispose of the case summarily, without full briefing and oral argument,” and
we elect to do so here “because the issue we resolve would not benefit from
further briefing and argument.” Sanchious v. State, 309 Ga. 580, 581 n.1 (847
SE2d 166) (2020) (citation and punctuation omitted).

2
tort.” Id. at 27 (1) n.1 (citation and punctuation omitted). The Court

of Appeals’s majority opinion relied on this footnote for its holding

that “where the public duty doctrine is involved, the existence of a

duty is a threshold issue and resolution of that issue in favor of the

defense moots the issues of sovereign and official immunity.” Bray,

367 Ga. App. at 385 (1). Regardless of whether the footnote in City

of Rome was a holding that jurisdictional matters need not be

addressed before the question of duty, any such holding was

overruled by our later decisional law. See McConnell v. Dept. of

Labor, 302 Ga. 18, 18-19 (805 SE2d 79) (2017) (holding that “[t]he

applicability of sovereign immunity to claims brought against the

State is a jurisdictional issue” and “[t]herefore, the applicability of

sovereign immunity is a threshold determination, and, if it does

apply, a court lacks jurisdiction over the case and, concomitantly,

lacks authority to decide the merits of a claim that is barred”). See

also Ga. Assn. of Professional Process Servers v. Jackson, 302 Ga.

309, 311-312 (1) (806 SE2d 550) (2017) (vacating on direct appeal

the portion of the trial court’s order which dismissed the plaintiff’s

3
claims on their merits and remanding with direction that these

claims be dismissed because they were barred by sovereign

immunity); New Cingular Wireless PCS v. Ga. Dept. of Revenue, 303

Ga. 468, 470 (1) n.3 (813 SE2d 388) (2018) (noting that “the

[underlying] Court of Appeals opinion should not be read for the

proposition that the issue of sovereign immunity may be

pretermitted in order to consider the merits” and reiterating that

“the applicability of sovereign immunity is a threshold

determination” (citation and punctuation omitted)); Polo Golf and

Country Club Homeowners Assn. v. Cunard, 306 Ga. 788, 790 (1) (a)

(833 SE2d 505) (2019) (“Sovereign immunity is a threshold

determination that must be ruled upon prior to the case moving

forward on the more substantive matters.” (emphasis in original)).

The special concurring opinion rightfully concluded that

“[s]overeign immunity is a threshold issue that should be decided

before addressing the merits of a plaintiff’s claims,” Bray, 367 Ga.

App. at 386 (Gobeil, J., concurring specially), but then relied on a

footnote in Love v. Fulton County Bd. of Tax Assessors, 311 Ga. 682,

4
690 (1) (859 SE2d 33) (2021)2 to conclude that remand to the trial

court to address sovereign immunity was unnecessary. See Bray,

367 Ga. App. at 387 (Gobeil, J., concurring specially). We disapprove

of the footnote in Love to the extent it suggested that the trial court

was authorized to address the merits of claims that could have been

barred by sovereign immunity, without first conducting a threshold

jurisdictional review of such claims.

Because the applicability of the public duty doctrine is a merits

question, the Court of Appeals erred in affirming the trial court’s

ruling on the official-capacity claims on the ground that the public

duty doctrine barred all of Bray’s claims without considering the

2 In this footnote, we noted that “the trial court should have addressed

whether the doctrine of sovereign immunity barred” certain claims for
declaratory relief against government employees in their official capacities.
Love, 311 Ga. at 690 (1) n.5. That assertion was correct. However, we then went
on to affirm the trial court’s dismissal of the plaintiffs’ claims for failure to
state a claim, concluding that “because the [plaintiffs] also sought prospective
declaratory relief against the Board members and the Chief Appraiser in their
individual capacities, the claim would have survived the sovereign immunity
analysis as to those defendants in their individual capacities.” Id. To the extent
our footnote in Love suggested that the trial court “was authorized to address
the merits of [ ] claims” that could have been barred by sovereign immunity,
without first conducting a threshold jurisdictional review of such claims, we
were incorrect. See id.

5
threshold jurisdictional question of whether sovereign immunity

barred Bray’s claims against Watkins in her official capacity. This

Court therefore grants the petition for writ of certiorari, vacates the

Court of Appeals’s opinion, and remands this case to the Court of

Appeals for proceedings consistent with this opinion.

Petition for writ of certiorari granted, judgment vacated, and
case remanded with direction. All the Justices concur, except Pinson,
J., not participating.

Decided November 7, 2023.

Certiorari to the Court of Appeals of Georgia — 367 Ga. App.

381.

Finch McCranie, Richard W. Hendrix, Michael A. Sullivan, for

appellants.

Williams & Waymire, Terry E. Williams, Jason C. Waymire, for

appellee.

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