The Georgia Tort Claims Act (“GTCA”) outlines the specific circumstances under which the State or its municipalities may be held liable in tort. One such limitation is Georgia’s ante litem notice requirement. The ante litem statute prohibits a tort claim against the State or its municipalities without first giving notice of the claim. The statutes also specify detailed procedures for the required notification and the Georgia Supreme Court has held that strict compliance with the notice provision is a prerequisite to filing suit under the GTCA. Substantial compliance is insufficient.
Generally, an ante litem notice must state the following, “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances”:
1. The name of the government entity;
2. The time of the occurrence out of which the loss arises;
3. The place of the occurrence;
4. The nature of the loss suffered;
5. The amount of the loss claimed; and
6. The act or omission which caused the loss.
In December of last year, Fried & Bonder, LLC discussed the Court of Appeals’ interpretation of the “amount of loss claimed” requirement in Myers v. Board of Regents of the University System of Georgia, 324 Ga. App. 685 (2013). In that case, Ms. Myers was injured on the campus of Dalton State College. Her ante litem notice to the State asserted, among other things, that the amount of her damages were as of yet undetermined because she was still incurring medical bills and was unaware, at the time of the notice, of the full extent of her damages. Because the notice, on its face, failed to state the amount of the loss claimed, the State moved to dismiss the suit. The trial Court granted the motion and threw out the lawsuit.
On appeal, however, the Court focused on the language requiring the claimant to state the amount of loss claimed only “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances…” This language, reasoned the Court of Appeals, “contemplates the possibility that a claimant may have imperfect information regarding various facets of her claim at the time her notice is submitted.” In so reasoning, the Court of Appeals concluded that the notice requirements should not be construed to create a hyper-technical barrier to recovery. In Ms. Myers’ case, her ante litem notice provided the State with sufficient notice of her claim and the purpose of the notice requirement was not frustrated by Ms. Myers’ failure to provide an exact amount of loss because she identified her expectation of loss to the extent of her knowledge and belief as of the day the notice was provided.
Hailing the decision as a step forward for Georgia plaintiff’s lawyers, we earlier stated:
This less restrictive interpretation may likely be limited to the circumstances of the case – where a claimant continues to incur losses related to an injury. However, even as limited, the case provides a welcome interpretation of a rigid statute and allows injured plaintiffs the opportunity to properly place the State on notice of a claim without fear of cutting off losses that continue to accrue following the notice.
Well, so much for that “welcome interpretation.” On October 6, 2014, Georgia’s Supreme Court reversed that decision holding that the claimant’s “notice failed to strictly comply with [O.C.G.A. § 50-21-26(a)(5)(E)] because it did not state any amount of loss whatsoever…” Bd. Of Regents of the University System of Georgia v. Meyers, S14G0431, October 6, 2014.
Then, just a week ago, the Georgia Court of Appeals followed suit in Dorn v. Georgia Dep’t of Behavioral Health & Developmental Disabilities, A14A0910 (11/14/2014). In Dorn, Plaintiff’s son committed suicide while on conditional release from a psychiatric facility operated by the Georgia Department of Behavioral Health and Developmental Disabilities (the “Department”). Acting pro se, Plaintiff delivered his “Ante Litem Notice of Wrongful Death Claim” to the Risk Management Division of the Georgia Department of Administrative Services and also provided a copy of the Notice to the Department. Dorn’s Notice did not state the dollar amount of the claim. Instead, the Notice stated that “[t]he amount of the loss suffered” is the “[m]onetary value of [the decedent’s] life in an amount sufficient to appropriately penalize State’s deliberately indifferent, negligent breach of State’s duty, and also in an amount sufficient to appropriately penalize State’s deliberately indifferent, negligent violation of [the decedent’s] rights.”
After suit was filed, the Department moved to dismiss the Complaint for, among other things, Dorn’s failure to comply with the anti litem notice’s “amount of loss” requirement. The trial Court dismissed the Complaint because the Notice did not specify the amount of loss claimed and, so, failed to comply with O.C.G.A. § 50-21-26 (a) (5) (E).
On appeal, relying primarily on the Myers decision before it was reversed, Dorn argued that the statute did not require a specific dollar amount and, further, that he complied with the statute by stating the amount of his loss to the extent of his knowledge and belief. Specifically, Dorn argued that he satisfied the “amount of loss” requirement under the circumstances because his claim for wrongful death was un-liquidated claim (i.e., a claim not susceptible to precise computation). He also argued that his failure to identify an exact dollar amount should not be fatal to his case because he was pro se.
The Court was not convinced. First, Myers has been reversed before the Court rendered its decision. Second, the Court recognized that the notice requirements “should not create a hyper technical barrier to recovery,” but still demanded strict compliance. Under the statute, it noted, the claimant “shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances…[t]he amount of the loss claimed.” Dorn’s notice didn’t do that because it did not specify any dollar amount whatsoever. Finally, the Court gave no leniency to Dorn merely because he acted pro se. Acting without counsel, said the Court, was not an excuse to avoid compliance with the statutory notice requirements.
In Good for the Goose, Good for the Gander, also published last December, we discussed the pre-reversed Myers case and an earlier case, Atlanta Home Builders Association v. City of McDonough. Both cases looked at the ante litem notice requirements and both found favorably for Plaintiffs, establishing what appeared then to be a relaxed approach to the strict compliance standard. But, as we cautioned then, what might have seemed to signal a relaxation of the strict compliance standard might turn out to be anything but. Anti litem notices can be tricky and strict compliance has now just gotten stricter.
David S. Fried is a trial lawyer who specializes in business, employment and personal injury litigation.