                            THIRD DIVISION
                             MILLER, P. J.,
                       MCFADDEN and MCMILLIAN, JJ.

                    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 12, 2016




In the Court of Appeals of Georgia
 A16A0018. JAMES v. GEORGIA DEPARTMENT OF PUBLIC
     SAFETY.

      MCFADDEN, Judge.

      Latricka Sloan died from injuries sustained when the car she was driving

crashed as she fled from Georgia State Patrol officers in a high-speed chase. Sloan’s

adult daughter, Breshonda James, on behalf of herself and her minor siblings, brought

this wrongful death action against the Georgia Department of Public Safety (“the

Department”), the state agency that oversees the day-to-day operations of the Georgia

State Patrol. In the action, James alleged that one of the officers negligently failed to

comply with the Department’s pursuit policy by continuing the chase and executing

a Precision Immobilization Technique (“PIT maneuver”) to stop Sloan’s car. The trial

court granted the Department’s motion to dismiss the action for want of subject
matter jurisdiction on the ground that the Department had sovereign immunity. James

appeals.

      James argues that the trial court erred in making pre-trial findings of fact in

ruling on the motion to dismiss, but the Georgia Civil Practice Act permitted the trial

court to make such findings. James also argues that the trial court should have

disregarded certain witnesses’ testimony under the rule governing self-contradictory

testimony, but that rule does not apply because those witnesses are not parties to this

case. As detailed below, the record contains evidence supporting the trial court’s

determination that sovereign immunity applied. In fact, James concedes that factual

disputes exist on the issue. Given the evidence – albeit disputed – supporting the trial

court’s ruling, our standard of review requires us to affirm.

      1. Standard of review, facts, and procedural background.

      “We review de novo a trial court’s grant of a motion to dismiss on sovereign

immunity grounds[.]” Pelham v. Bd. of Regents &c., 321 Ga. App. 791 (743 SE2d

469) (2013). “However, factual findings by the trial court in support of [his] legal

decision are sustained if there is evidence authorizing them, and the burden of proof

is on the party seeking the waiver of immunity.” Loehle v. Ga. Dept. of Pub. Safety,

334 Ga. App. 836, 836-837 (780 SE2d 469) (2015) (citations omitted). Accord Ga.

                                           2
Dept. of Transp. v. Kovalcik, __ Ga. App. __, __ (__ SE2d __) (Case No. A15A2222,

decided Mar. 28, 2016); Diamond v. Dept. of Transp., 326 Ga. App. 189, 190 (1) (756

SE2d 277) (2014); Pak v. Ga. Dept. of Behavioral Health &c., 317 Ga. App. 486 (731

SE2d 384) (2012); Sadler v. Dept. of Transp., 311 Ga. App. 601, 603 (716 SE2d 639)

(2011).

      We are not persuaded by James’s argument that, in reviewing the trial court’s

ruling, we must view the factual allegations in her complaint as true to determine

whether the complaint showed with certainty that she would not be entitled to relief

under any state of facts that could be proven in support of her claim. That standard

of review is appropriate for a ruling on a motion to dismiss for failure to state a claim

under OCGA § 9-11-12 (b) (6), see Bonner v. Peterson, 301 Ga. App. 443 (687 SE2d

676) (2009), or for a ruling on a motion to dismiss for lack of subject matter

jurisdiction under OCGA § 9-11-12 (b) (1) where the trial court has not made factual

findings. See McCoy v. Ga. Dept. of Admin. Svcs., 326 Ga. App. 853 n. 1 (755 SE2d

362) (2014); Pelham, 321 Ga. App. at 791 n. 1. In this case, however, the Department

moved to dismiss for lack of subject matter jurisdiction and the trial court made

factual findings in ruling on that motion. See generally Considine v. Murphy, 297 Ga.

164, 167 (1) n. 2 (773 SE2d 176) (2015) (ruling on motion to dismiss for lack of

                                           3
subject matter jurisdiction is subject to different standard of review than ruling on

motion to dismiss for failure to state a claim); Bonner, 301 Ga. App. at 443 (same).

Cases cited by James in which the trial court’s ruling was based solely on the

allegations in the complaint are therefore inapposite. See, e.g., Oconee Community

Svc. Bd. v. Holsey, 266 Ga. App. 385 (597 SE2d 489) (2004); Ardizonne v. Dept. of

Human Resources, 258 Ga. App. 858 (575 SE2d 738) (2002); Ga. Military College

v. Santamorena, 237 Ga. App. 58 (514 SE2d 82) (1999).

      Accordingly, as stated above, we consider on appeal whether there is evidence

to support the trial court’s factual findings. Loehle, 334 Ga. App. at 836-837. Those

factual findings are summarized as follows, and our review of the record reveals

evidence supporting them.

      On January 22, 2011, at about 10 p.m., Sloan approached a roadblock in her

vehicle, made a U-turn, and accelerated away from the roadblock. Two Georgia State

Patrol officers pursued her in vehicles with functioning blue flashing lights and

audible sirens, and functioning radios by which the officers maintained car-to-car

contact during the pursuit. Soon after the pursuit began, one of the officers

(hereinafter the “primary pursuing officer” ) passed the other officer (hereinafter the

“secondary pursuing officer” ) and took the lead in the pursuit. The primary pursuing

                                          4
officer asked the secondary pursuing officer to notify the Department’s

communications center of the pursuit. At the time of the pursuit, the officers did not

know Sloan’s identity.

      The pursuit lasted for 4.8 miles, during which at least one of the officers

maintained visual contact with Sloan’s vehicle. The officers observed Sloan violate

several traffic laws and drive in an erratic and dangerous manner, including

exceeding the speed limit, failing to obey traffic signs and lights, and driving on the

wrong side of the road. In the primary pursuing officer’s opinion, these actions could

place other motorists at risk of a serious accident. The officers, however, did not

encounter any other traffic during the pursuit, and the condition of the road did not

make the pursuit too hazardous to continue.

      The primary pursuing officer was familiar with the traffic patterns of an

approaching road, which he anticipated would have a high volume of traffic. He

believed that there was a need to stop Sloan before she reached that road given her

erratic and dangerous driving; that continuing the pursuit presented a greater danger

than the danger associated with ending the pursuit through a PIT maneuver; and that

alternative methods of ending the pursuit were not feasible. Approximately one mile

before the intersection with the high-traffic road, the primary pursuing officer

                                          5
performed a PIT maneuver, in which he intentionally struck Sloan’s vehicle. This

caused Sloan’s vehicle to leave the roadway and overturn. Sloan was killed.

      An investigative division of the Georgia State Patrol investigated the

circumstances of the crash and concluded that the officer who had performed the PIT

maneuver acted in accordance with the Department’s pursuit policy. The Georgia

State Patrol’s commanding officer reviewed that investigation and agreed with its

conclusion.

      After James filed a complaint against the Department alleging that the primary

pursuing officer had acted negligently in pursuing Sloan and performing the PIT

maneuver, the Department moved to dismiss for lack of subject matter jurisdiction,

see OCGA § 9-11-12 (b) (1), arguing that it was entitled to sovereign immunity. Both

parties submitted evidence in the form of affidavits and deposition testimony on the

issue of sovereign immunity. After considering this evidence, the trial court

determined that the Department was entitled to sovereign immunity and granted the

motion to dismiss. James appeals, arguing that the trial court should not have decided

the issue before trial given disputes in the evidence, and that the trial court should

have disregarded some witness testimony. She also challenges the merits of the trial

court’s dismissal of the action.

                                          6
      2. Pre-trial determination of disputed facts.

      James challenges the trial court’s act of making pre-trial determination of

disputed facts in ruling on the motion to dismiss for lack of subject matter

jurisdiction. She argues that, instead of making factual findings, the trial court merely

should have viewed her complaint to determine whether she would be entitled to

relief under any state of facts that could be proven in support of her claim. She also

argues that the trial court should have deferred ruling on the motion until trial, and

she argues that a jury, rather than the trial court, should have decided some of the

factual disputes pertinent to the issue of sovereign immunity. But as detailed below,

Georgia’s Civil Practice Act authorized the procedure used by the trial court, and

James has shown no abuse of discretion.

      A challenge to subject matter jurisdiction is a matter in abatement, Stivali v.

Aquiport Aylesbury, 244 Ga. App. 389 (535 SE2d 551) (2000), and the Civil Practice

Act permits a defendant to move to dismiss a complaint on that ground. OCGA § 9-

11-12 (b) (1). See also Diamond, 326 Ga. App. at 190 (1) (“any suit brought to which

an exception [to a waiver of sovereign immunity] applies is subject to dismissal

pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction”) (citation

omitted). Such motion “shall be heard and determined before trial on application of

                                           7
any party unless the court orders that the hearing and determination thereof be

deferred until the trial.” OCGA § 9-11-12 (d) (emphasis supplied). In considering a

motion for lack of subject matter jurisdiction based on sovereign immunity, a trial

court is not confined to the allegations of the complaint, as the court would be if

considering a motion to dismiss for failure to state a claim under OCGA § 9-11-12

(b) (6). The trial court “may hear the matter on affidavits presented by the respective

parties, [and] may direct that the matter be heard wholly or partly on oral testimony

or depositions[,]” OCGA § 9-11-43 (b), and has broad discretion in conducting the

preliminary hearing on the motion. See Sherwood Mem. Park v. Bryan, 142 Ga. App.

664 (236 SE2d 903) (1977). Accordingly, the trial court may receive evidence and

make relevant factual findings to decide the threshold issue of whether a defendant’s

entitlement to sovereign immunity deprives the court of subject matter jurisdiction.

See Rivera v. Washington, __ Ga. __, __ (__ SE2d __) (Case No. S15G0887, decided

Mar. 25, 2016).

      The trial court also has broad discretion in deciding whether to defer its

determination on a threshold issue such as subject matter jurisdiction. Ga. Power Co.

v. Harrison, 253 Ga. 212, 214-215 (2) (318 SE2d 306) (1984); Dept. of Transp. v.

Dupree, 256 Ga. App. 668, 675 (1) (b) (570 SE2d 1) (2002). “Under OCGA § 9-11-

                                          8
12 (d), the trial court may hear and determine a defense in abatement . . . prior to trial

without submitting it to a jury, or may defer such hearing and determination until

trial.” Parris v. Douthit, 287 Ga. 119 (694 SE2d 655) (2010) (citations omitted). But

even if deferred until trial, the determination remains one for the trial court, not the

jury. See Dupree, 256 Ga. App. at 672 (1) (a) (determination of subject matter

jurisdiction must be made by trial court before entry of judgment, and trial court may

use jury’s verdict only in advisory capacity); Derbyshire v. United Builders Supplies,

194 Ga. App. 840, 842-843 (1) (392 SE2d 37) (1990) (trial court erred in declining

to decide jurisdictional question in favor of jury determination of the issue).

      James argues that the trial court in this case should have deferred his

determination on subject matter jurisdiction because of the degree to which that

determination was factually intertwined with a determination of the merits of the case.

Certainly the trial court could have deferred his ruling, and as we noted in our opinion

in Dept. of Transp. v. Dupree, supra, 256 Ga. App. 668, deferral may be the “best

approach” where these determinations are particularly intertwined. Id. at 672 (1) (b).

Nevertheless, as our opinion in Dupree acknowledges, a trial court’s exercise of

discretion in this regard can encompass a decision not to defer the subject matter

jurisdiction decision, even if the jurisdictional ruling effectively decides the issue of

                                            9
liability. See id. at 672 (1) (a) & n. 1. James has not shown that the trial court abused

his discretion in making a pre-trial determination of subject matter jurisdiction in this

case.

        In a supplemental brief, James also suggests that the trial court should not have

made factual findings without receiving live testimony. However, James did not

enumerate as error any ruling by the trial court regarding the nature of the evidence

upon which the trial court based his jurisdictional determination. Moreover, although

James states in her supplemental brief that the trial court “disallowed the parties to

test the evidence through live testimony, she does not point to any place in the record

where the trial court made such a ruling. She did not seek to introduce any live

testimony at the hearing on the motion to dismiss. And as discussed above, the Civil

Practice Act permitted the trial court to make his determination on written

submissions. OCGA § 9-11-43 (b).

        3. Self-contradictory testimony rule.

        We find no merit in James’s argument that the trial court was required to

disregard testimony of two of the Department’s witnesses under the self-contradictory

testimony rule. That rule



                                           10
      states that: (1) the testimony of a party who testifies on their own behalf
      at trial is construed against them whenever it is self-contradictory,
      vague, or equivocal; and (2) whenever the only evidence in support of
      a claim or a defense is the favorable portion of a party’s self-
      contradictory testimony, the other party is entitled to a directed verdict
      as a matter of law.


Thompson v. Ezor, 272 Ga. 849, 851 (1) (536 SE2d 749) (2000) (citations omitted).

“This principle [also] applies in the context of a motion to dismiss on jurisdictional

grounds,” as well as in the summary judgment context. Classic Commercial Svcs. v.

Baldwin, 336 Ga. App. 183, 186 (1) (784 SE2d 44) (2016) (citation omitted). But as

our Supreme Court has made clear, the rule applies only to the testimony of a party

to the litigation; it does not apply to the testimony of a non-party witness. Thompson,

272 Ga. at 851-853 (2).

      James contends that the self-contradictory testimony rule should apply to the

testimony of the primary and secondary pursuing officers, but neither officer is a

party to this litigation. In fact, our Tort Claims Act prohibits the officers from being

parties to this litigation. See OCGA § 50-21-25 (“A person bringing an action against

the state under the provisions of this article must name as a party defendant only the

state government entity for which the state officer or employee was acting and shall


                                          11
not name the state officer or employee individually.”); see also Shekhawat v. Jones,

293 Ga. 468, 470-471 (1) (746 SE2d 89) (2013) (“where a state employee commits

a tort while acting within the scope of his employment with the [s]tate, the [s]tate

through the employing government agency may be held liable, but the individual state

employee may not”) (citation omitted). James offers no argument or authority for the

proposition that the self-contradictory testimony rule should apply to the testimony

of non-party witnesses in this case, and we know of none.

      4. Sovereign immunity.

      Under Article I, Section II, Paragraph IX (e) of the Georgia Constitution of

1983, “sovereign immunity from suit extends to all state departments and agencies

unless properly waived through an act passed by the General Assembly. . . .

Sovereign immunity is waived by a legislative act only if the statutory language

specifically provides that sovereign immunity is waived and the extent of such

waiver.” Pelham, 321 Ga. App. at 793 (1) (citations and punctuation omitted). The

conditions and limitations of the statute that waives immunity must be strictly

followed. Ga. Dept. of Labor v. RTT Assoc., __ Ga. __, __ (2) (__ SE2d __) (Case

No. S15G1780, decided May 23, 2016).

      The Georgia Tort Claims Act, OCGA § 50-21-20 et seq.,

                                        12
      provides for a waiver of the state’s sovereign immunity for torts
      committed by state officers and employees acting within the scope of
      their official duties or employment, “provided, however, that the state’s
      sovereign immunity is waived subject to all exceptions and limitations
      set forth in this article.” OCGA § 50-21-23 (a). . . . If a tort claim falls
      within the scope of any of the[ ] exceptions [set forth in OCGA § 50-21-
      24], it is barred by sovereign immunity.


Pelham, 321 Ga. App. at 794-795 (citation omitted); see Diamond, 326 Ga. App. at

190 (1). As a department of the state, the Department of Public Safety is subject to the

waiver and the exceptions set forth in the Tort Claims Act. See Bruton v. Dept. of

Human Resources, 235 Ga. App. 291, 293 (509 SE2d 363) (1998).

      The trial court concluded that James’s claims against the Department fell

within the law enforcement exception to the Tort Claims Act’s waiver of sovereign

immunity. See OCGA § 50-21-24 (6). Alternatively, the trial court concluded that the

claims also fell within the assault and battery exception to the waiver. See OCGA §

50-21-24 (7). Because the evidence authorized the trial court’s conclusion that the

law enforcement exception applied, and thus his conclusion that the case must be

dismissed because the Department was entitled to sovereign immunity, we need not

consider the trial court’s alternative conclusion regarding the assault and battery

exception.

                                          13
      (a) Law enforcement exception.

      OCGA § 50-21-24 (6) provides that “[t]he state shall have no liability for

losses resulting from . . . the method of providing[ ] law enforcement, police, or fire

protection.” “[O]ur construction of OCGA § 50-21-24 (6) should accomplish a

balance between the inherently unfair and inequitable results from the strict

application of sovereign immunity and the need to limit the [s]tate’s exposure to tort

liability that the General Assembly expressed as its goal in OCGA § 50-21-21.” Ga.

Dept. of Pub. Safety v. Davis, 285 Ga. 203, 204 (676 SE2d 1) (2009) (citation and

punctuation omitted).

      In Loehle v. Ga. Dept. of Pub. Safety, supra, 334 Ga. App. 836, another case

involving a vehicle accident during a pursuit, we discussed the scope of this

exception to the Tort Claims Act’s waiver of sovereign immunity:

      [O]ur Supreme Court has construe(d) the exception to the waiver of
      sovereign immunity found in OCGA § 50-21-24 (6) as authorizing the
      application of sovereign immunity to the making of policy decisions by
      state employees and officers . . . and to the acts and omissions of state
      employees and officers executing and implementing those policies. Our
      Supreme Court highlighted the distinction between the formulation of
      a policy and an officer’s adherence to the policy by noting that if the
      negligence causing an injury lies in the formulating of policy – i.e., the
      determining of the method of police protection to provide – the

                                          14
      government remains immune from liability. If, however, an officer or
      employee acts negligently in carrying out that policy, government
      liability may exist under the Tort Claims Act.


Id. at 837-838 (1) (citing Davis, supra, 285 Ga. at 205-206, and Ga. Forestry Comm.

v. Canady, 280 Ga. 825, 830 (632 SE2d 105) (2006)). Like the plaintiff in Loehle, in

this case James “does not challenge [the Department’s] policies concerning pursuits.

Rather, [she] contends that [the law enforcement officer who executed the PIT

maneuver] failed to properly follow those policies. Accordingly, the sole issue is

whether the [officer was] negligent in carrying out certain [Department] policies.”

Loehle, 334 Ga. App. at 838 (1) (citations and footnote omitted).

      The Department policy at issue in this case explicitly gives officers discretion

in conducting pursuits. This discretion extends to “determining the appropriateness,

speed and extent of a pursuit” (requiring the officer to consider factors including

“[t]he nature of the offense committed by the suspect, the potential danger to the

public if the suspect is not immediately apprehended and the probability of the

suspect’s arrest at a later date”); to “discontinu[ing] a pursuit if, in the [officer’s]

opinion, the risk of continuing outweighs the danger of permitting the suspect to

escape”; and to performing a PIT maneuver “[i]f the [officer] in pursuit determine[s]


                                          15
that the fleeing vehicle must be stopped immediately to safeguard life and preserve

public safety” and if “the danger from the continued pursuit is greater than the danger

associated with . . . using the maneuver to end the pursuit[.]” The policy prohibits

pursuits when “[e]mergency equipment or the radio is not functioning properly,” or

when “inmate(s) or person(s) in custody occupy [the pursuit] vehicle.”

      The evidence recited above authorized the trial court’s finding that the officer’s

actions during the pursuit “were objectively reasonable and in compliance with [the

Department’s] pursuit policy” and that his “execution of the PIT maneuver to

terminate the pursuit of Sloan was in compliance with the policy[.]” There was

evidence in the record showing that the officer considered the factors set forth in the

pursuit policy in deciding to continue the pursuit, and that none of the circumstances

that would have prohibited a pursuit under the policy existed in this case. There also

was evidence showing that an internal reviewing body found that the officer had

complied with the pursuit policy.

      It is true that James contests this evidence. She points to inconsistencies in the

witness testimony. She questions whether the primary pursuing officer was right to

delegate to another officer the task of notifying the communications center. She

points to expert opinion testimony that the primary pursuing officer’s actions did not

                                          16
comply with the pursuit policy. She asks us to view the facts of this case similarly to

Davis, supra, where the evidence showed that an officer “clearly was not acting

pursuant to policy” when he “followed too closely and did not pay attention” while

driving. 285 Ga. at 207 (citations and punctuation omitted).

       But there is a crucial distinction between this case and Davis. In Davis, there

was no evidence that the policy permitted the officer’s actions. Id. Here, in contrast,

there was evidence that the policy permitted the officer, in the exercise of his

discretion, to continue the pursuit of Sloan and then execute a PIT maneuver to end

the pursuit. In that regard, the facts of this case more closely resemble those in

Loehle, supra, where there was evidence that an officer had considered the factors set

forth in the pursuit policy and determined that it was appropriate to continue the

pursuit, and there was evidence that an internal review concluded that the officer’s

actions were reasonable. 334 Ga. App. at 840-842 (1). We held in Loehle that this

evidence was distinguishable from that in Davis, and we held that the evidence

supported the trial court’s conclusion that the officer did not negligently implement

that policy. Id.

       Simply put, and as James herself concedes, the evidence as to whether the

officer was negligent in executing the pursuit policy was in dispute. That disputed

                                          17
evidence included evidence that permitted the trial court to make the factual findings

he made. We are not authorized to substitute our ruling on the disputed facts for that

of the trial court. “Based on [the trial court’s] factual findings, which are supported

by evidence from the record, we conclude that the trial court correctly found that [the

Department] did not waive sovereign immunity.” Loehle, supra, 334 Ga. App. at 841

(1) (footnote omitted). Accordingly, the trial court did not err in dismissing the action

for lack of subject matter jurisdiction. Id. at 837 (1).

      (b) Assault and battery exception.

      In light of our conclusion in Division 2 (a), above, we need not consider

James’s challenges to the trial court’s alternative conclusion regarding the

applicability of the “assault and battery exception” to the Tort Claims Act’s waiver

of sovereign immunity.

      Judgment affirmed. Miller, P. J., and McMillian, J., concur.




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