                           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 14, 2016




In the Court of Appeals of Georgia
 A16A0224. GRANT et               al.   v.    GEORGIA          FORESTRY
     COMMISSION et al.
 A16A0225. GRANT et               al.   v.    GEORGIA          FORESTRY
     COMMISSION et al.

      MCMILLIAN, Judge.

      In these related cases, Carol Grant1 (“Grant”) brought wrongful death actions

against the Georgia Forestry Commission (“GFC”) and the Georgia Department of

Transportation (“GDOT”) arising out of an automobile collision that resulted in the

death of Grant’s husband, Myles N. Grant, and her son, Joell D. Grant. Grant appeals




      1
       In Case No. A16A0224, Grant brought suit “ individually and as the surviving
spouse of Myles N. Grant, deceased, and as temporary administratrix of the Estate of
Myles N. Grant, deceased.” In Case No. A16A0225, Grant brought suit “individually
and as sole surviving heir of Joell D. Grant, deceased, and as temporary
administratrix of the Estate of Joell D. Grant, deceased.”
the trial court’s dismissal of GFC and GDOT on the grounds that the doctrine of

sovereign immunity bars her claims.

      The facts are largely undisputed. At approximately 5:30 a.m. or 5:50 a.m.,2 on

March 17, 2011, Grant’s husband and son were killed in an automobile accident on

Interstate 16 (“I-16”) when they collided with a tractor-trailer (the “Accident”). At the

time, there was little to no visibility on the interstate due to a combination of smoke

and fog.

      On the day before the Accident, GFC had issued an online burn permit to

Grantley Stewart to burn vegetation on his property in Bulloch County, Georgia. At

approximately 3:30 p.m. that day, Douglas Chassereau, Chief Ranger for the Bulloch

County GFC fire protection unit, received notice of a fire on Stewart’s property, and

when he arrived at the property approximately 45 minutes later, he observed a fire

burning out of control in an area of forested land and threatening to burn a number

of structures. Because forest fires fall within GFC’s jurisdiction, Chassereau “took

charge” of the fire scene, and he “continuously monitored the fire and assigned

manpower and equipment to contain the fire.” As a part of his duties, Chassereau

      2
        The Complaint alleges that the accident took place at approximately 5:50
a.m., whereas the trial court found that the collision took place at approximately 5:30
a.m.

                                           2
drove State Route (“SR”) 67, located several hundred feet north of the fire, where he

observed that Bulloch County Sheriff deputies were handling traffic issues and that

smoke/fog warning signs for both travel lanes on SR 67 had been posted.

      At around 7:00 p.m. that evening, Chassereau determined that the fire appeared

to be contained; however, the burned area, which consisted of around 45 acres,

continued to smoke. Chassereau observed that the smoke was drifting in a

southeasterly direction, away from I-16, which was further to the north of the burned

area, and he observed no visibility issues on either SR 67 or I-16. The closest edge

of the burned area was approximately 3/4 of a mile from the interstate. However,

before Chassereau left the vicinity at around 8:00 p.m., he called Bulloch County 911

to provide notice that smoke was in the area and directed the dispatcher to request

that the Georgia State Patrol (“GSP”) and the Bulloch County Sheriff’s Office

continue to monitor the area for possible problems.

      GDOT also received notice of the fire on March 16 when the Bulloch County

Sheriff’s Office called to request that smoke warning signs be posted on SR 67.

Joseph Mixon, GDOT’s maintenance foreman for Bulloch County, responded to the

scene between 4:30 and 5:00 p.m. At the time, GDOT Policy 6670-3 (the “GDOT

Policy”) required Mixon in his capacity as maintenance foreman to respond to

                                         3
requests from local law enforcement to place fog/smoke warning signs on state roads.

Although Mixon observed no existing visibility issues, he complied with the request

of the sheriff’s office to place warning signs in both directions on the roadway at

around 5:00 p.m. When Mixon returned to the scene at around 7:45 p.m. to check the

visibility, he found the conditions clear. After calling the sheriff’s office regarding

the signs, Mixon left the signs in place overnight at their request.

      The next morning, March 17, Chassereau left his house at 5:30 a.m. to return

to the burned area and on the way, at around 6:09 a.m., he received a report of the

Accident. When he arrived at the scene a few minutes later, he observed that the area

was enveloped in dense fog and smoke, resulting “in near zero visibility,” although

he had no trouble breathing in the fog, indicating that it did not contain enough smoke

to compromise his breathing or to cause him to experience other smoke-related

symptoms.

      Also, around 5:30 a.m. on March 17, Mixon received a call from GDOT’s

Transportation Management Center (“TMC”) indicating that law enforcement had

asked that warning signs be placed on I-16. That was the first notice he received of

visibility issues on I-16. A few minutes later, TMC called him to report that I-16 had

been closed due to the Accident and that law enforcement was asking for assistance

                                          4
in setting up a detour for the eastbound lane of the interstate. Mixon notified his

immediate supervisor of these events. They then coordinated notifying additional

GDOT personnel to pick up the necessary signage and to bring it to the appropriate

interchange on I-16. When Mixon arrived at the interstate that morning, he observed

that “fog and smoke had accumulated to such a degree over I-16 that [he] could not

see through [his] windshield beyond the front hood of [his] truck.”

      After the extended discovery period had ended, GDOT and GFC filed motions

to dismiss Grant’s claims pursuant to OCGA § 9-11-12 (b) (1), asserting that they

were entitled to the protection of sovereign immunity, which the trial court granted

after a hearing, and these appeals followed.

      1. On appeal, Grant asserts that the trial court erred in granting the motions to

dismiss because sovereign immunity had been waived under the Georgia Tort Claims

Act (“GTCA”), OCGA § 50-21-20 et seq., as to her claims against GFC and GDOT.

The Georgia Constitution provides that sovereign immunity extends to the State and

all of its department and agencies and that such immunity can only be waived by a

constitutional provision or an Act of the General Assembly, “which specifically

provides that sovereign immunity is waived and the extent of such waiver.” Ga.

Const. of 1983, Art. I, Sec. II, Par IX (e). The GTCA provides for a limited waiver

                                          5
of sovereign immunity for “the torts of state officers and employees while acting

within the scope of their official duties or employment,” subject to a number of

exceptions and limitations, OCGA § 50-21-23 (a), which are set out in OCGA § 50-

21-24. At issue in this appeal are the exceptions set forth in OCGA § 50-21-24 (2)

and (6).

      In reviewing an assertion of sovereign immunity, we must keep in mind that

sovereign immunity is not an affirmative defense but instead raises an issue as to the

trial court’s jurisdiction to try the case. Dept. of Transp. v. Dupree, 256 Ga. App. 668,

671 (1) (570 SE2d 1) (2002). The burden of establishing a waiver of such immunity

falls to “the party seeking to benefit from that waiver.” (Citation and punctuation

omitted.) Id. Therefore, in response to GDOT’s and GFC’s motions to dismiss, Grant

bore the burden of establishing a waiver of sovereign immunity as to her claims

against each of the two state agencies. Id.

      Moreover, where a motion to dismiss asserting the protection of sovereign

immunity is filed pursuant to OCGA § 9-11-12 (b) (1), as it was here, the trial court

is entitled to hear evidence and make relevant factual findings in deciding the issue

of immunity. Rivera v. Washington, __ Ga. __ (784 SE2d 775) (2016); Dupree, 256

Ga. App. at 675 (1) (b); OCGA § 9-11-12 (d). This Court sustains the trial court’s

                                           6
factual findings if there is any evidence to support them. Ga. Dept. of Transp. v.

Wyche, 332 Ga. App. 596, 597 (774 SE2d 169) (2015). But where the underlying

facts are undisputed, we review de novo the trial court’s application of the law to the

undisputed facts. See generally id.; McCombs v. Southern Regional Med. Ctr., 233

Ga. App. 676, 681 (2) (504 SE2d 747) (1998).

      2. We turn first to Grant’s claims against GFC. In her complaints, Grant

asserted that GFC was negligent in (1) failing to notify other governmental agencies

of the potentially hazardous conditions caused by the fire; and (2) failing to

coordinate with GDOT to put signs in place to warn the public of these potentially

hazardous conditions. In support of its motions to dismiss, the GFC argued that it was

entitled to sovereign immunity because its actions fell within the exception to the

waiver of sovereign immunity set out in OCGA § 50-21-24 (6), and the trial court

agreed, finding that GFC was entitled to immunity.3

      OCGA § 50-21-24 (6) absolves the State from liability for losses resulting from

“[c]ivil disturbance, riot, insurrection, or rebellion or the failure to provide, or the



      3
         As explained more fully in Division 4, GFC did not move to dismiss based
on the discretionary function exception in OCGA § 50-21-24 (2), even though the
trial court dismissed claims against GFC on this ground.

                                           7
method of providing, law enforcement, police, or fire protection.” Our Supreme Court

has interpreted this provision

      as authorizing the application of sovereign immunity to the making of
      policy decisions by state employees and officers including those relating
      to the amount, disbursement, and use of equipment and personnel to
      provide law enforcement, police or fire protection services, and to the
      acts and omissions of state employees and officers executing and
      implementing those policies.


Ga. Forestry Comm. v. Canady, 280 Ga. 825, 830 (632 SE2d 105) (2006). The

Supreme Court later clarified this holding by explaining that “[t]he state is immune

from liability if the alleged negligence causing an injury, which injury occurs during

implementation of policy, lies in some defect in the policy itself.” Ga. Dept. of Public

Safety v. Davis, 285 Ga. 203, 206 (676 SE2d 1) (2009). However, “[t]he state is not

immune from liability where its employee is implementing a non-defective policy, but

does so in a negligent manner.” Id. Moreover, “[a]lthough the state may be immune

from liability for negligence in creating a certain policy which causes injury during

its implementation, such immunity is unavailable for an employee’s allegedly

negligent act or omission which is not authorized by any policy.” Id.




                                           8
      The parties do not dispute that the policy applicable to GFC’s actions was

contained in a Memorandum of Agreement dated August 15, 2005 (the “Agreement”)

in which three state agencies — the GFC, the GDOT, and the GSP — agreed to a

chart setting out “Action Procedures for Reduced-Visibility Driving Situations on

State Roads.” Grant does not allege that these policies were defective, but instead

claims that GFC was negligent in implementing them.

      In addressing the issue of whether GFC and Chassereau were negligent in

implementing the applicable policies in the Agreement, we must consider the division

of responsibility to which the three participating agencies agreed. Under the

Agreement, GFC has responsibility for reporting to GSP the existence of limited

visibility conditions resulting from smoke and the existence of large controlled burns

or wildfires in the vicinity of state roadways.4 GSP then has the responsibility to

      4
        In situations involving “Smoke, Smog,Etc.” [sic], GFC is assigned the
responsibility to:

      Report to the nearest Georgia State
      headquarters the existence of limited
      visibility conditions and location.
      Coordinate with DOT officials to insure that
      signs are properly posted.

      Advise the Georgia State Patrol of the
      existence of large control burns or

                                          9
assess the reported situation to determine what further action needs to be taken.

GSP’s responsibility for monitoring the situation continues “until the smoke has

dissipated.” Additionally, GSP has the responsibility, as resources permit, to monitor

major highways near reported large controlled burns or wildfires to detect potential

problems. GDOT’s responsibility to dispatch crews with signs to the scene is

triggered “upon notification.” The dispatched GDOT crew is responsible for the

proper placement of warning signs, with GFC having responsibility for coordinating

with GDOT in the placement of such signs. GDOT also has responsibility for

furnishing additional traffic control “as requested.”

      Turning first to the claim that GFC negligently failed to notify GSP of

potentially hazardous conditions, after reviewing the plain language of the

Agreement, we agree with the trial court that GFC has the duty to report only existing

limited visibility conditions. Nothing in the Agreement imposes a duty upon GFC to

report conditions with the potential to cause future visibility problems. Rather, the



      wildfires in the vicinity of state roadways.

(spacing in original document). In addition, the Agreement notes that “Fog is
generally so widespread that it would be logically impossible to address; however,
an isolated patch of fog with sufficient density, to severely restrict or prevent passage
through it, should be treated the same as smoke, smog, etc.”

                                           10
Agreement charges GSP with responsibility for monitoring the area surrounding large

controlled burns or wildfires, as resources allow, to detect potential problems. Here,

the evidence is undisputed that GFC did not become aware of any limited visibility

conditions on I-16 until the Accident had already taken place, and thus GFC cannot

be said to have negligently implemented its policies. As a result, GFC is protected by

sovereign immunity as to such claims.

      Likewise, Grant’s claim that GFC negligently violated its duty to coordinate

with the GDOT in the placement of signs is barred by the doctrine of sovereign

immunity. Under the Agreement, this duty to coordinate with GDOT arises only in

the case of existing limited visibility conditions, as the description of that duty

immediately follows the description of GFC’s duty to report such conditions (with no

line spacing). In contrast, GFC’s duty to report large controlled burns and wildfires

appears separately and below the instructions for limited visibility conditions.

Because the evidence amply supports the trial court’s finding that GFC did not

become aware of the limited visibility conditions until the early morning hours

around the time that the Accident occurred, any claims based on the purported breach

of GFC’s duty to coordinate with GDOT is entitled to the protection of sovereign

immunity.

                                         11
       However, as previously noted, the Agreement imposes a separate and

independent duty on GFC, regardless of visibility conditions, to advise GSP of the

existence of any large controlled burns or wildfires in the vicinity of state roadways.

Thus, we disagree with the trial court’s conclusion that limited visibility conditions

were required to trigger any duty on the part of GFC under the Agreement. Although

GFC initially permitted the fire as a presumably smaller controlled burn,5 it grew into

an uncontrolled fire that eventually resulted in 45 smoldering acres.6 The record is

silent as to whether GFC advised GSP of the fire while it was still burning.

Nevertheless, consistent with the Agreement, after the fire was contained, Chassereau

called the Bulloch County 911 operator to request that GSP and the Bulloch County

Sheriff’s Office be notified of the existence of smoke in the area, even though no

       5
        Grant also alleged in her complaint that GFC was negligent in issuing Stewart
a burn permit under the prevailing weather conditions and surrounding circumstances.
GFC argued in its motion that its actions in issuing the burn permit to Stewart fell
under the exception set out in OCGA § 50-21-24 (9), which provides that “the state
will have no liability for losses resulting from . . . “[l]icensing powers or functions,
including, but not limited to, the issuance . . . of . . . any permit, license, certificate,
approval, order or similar authorization.” Grant conceded below that GFC’s actions
in issuing the permit fell within the licensing exception set out in subsection (9) and
asserts in her appellate briefs that she never asserted that permitting the burn caused
the Accident. Accordingly, we need not address this claim on appeal.
       6
        The parties apparently do not dispute that the fire would be considered either
a large controlled burn or wildfire within the terms of the Agreement.

                                            12
evidence exists that the smoke had resulted in limited visibility on any roadway at

that time.

      The Agreement does not specify the method for advising GSP of large

controlled burns or wildfires, but it clearly requires that GSP be so advised by GFC.

Although the trial court found that Chassereau complied with this notification

requirement by calling the county 911 operator, we disagree with the trial court’s

application of the law to the undisputed facts. Evidence that GFC delegated its duty

to advise GSP to the county 911 operator, without more, is insufficient to show that

GFC carried out its duty, particularly in the absence of evidence in the record that

GSP received any notice of the fire, which would then trigger GSP’s duty under the

Agreement to monitor the situation as resources permitted. See Davis, 285 Ga. at 206

(sovereign immunity not available for an employee’s negligent omission which is not

authorized by any policy). Accordingly, the trial court erred in finding on the existing

record that GFC was not negligent in carrying out its duty to advise GSP of the fire

and that it was entitled to sovereign immunity on Grant’s claim on this ground.7



      7
       In so finding, we express no opinion on the merits of Grant’s underlying
negligence claims based on GFC’s alleged failure to notify, particularly whether
Grant will be able to prove that any such failure proximately caused her loss.

                                          13
      3. Turning to Grant’s claims against GDOT, Grant alleged in her complaints

that GDOT was negligent in (1) failing to monitor I-16 for potentially hazardous

conditions caused by the fire; (2) failing to assess the hazard posed by the fire in order

to develop appropriate traffic control strategies; and (3) failing to warn motorists of

the hazards and dangers posed by the smoke and coordinate with GFC to put signs

in place to warn the public of these potentially hazardous conditions. In its motions

to dismiss, GDOT asserted that it was entitled to sovereign immunity because its

actions fell within the exceptions to the waiver of sovereign immunity set out in

OCGA § 50-21-24 (2) and (6), and the trial court found that GDOT was entitled to

immunity under subsection (2). Even though the trial court failed to address the

application of subsection (6) to GDOT, we address this issue under our de novo

review of the trial court’s ruling.

      As an initial matter, we must consider Grant’s contention that subsection (6)

does not apply to GDOT because it is not “‘a law enforcement or fire protection

agency.’” But the protections afforded by that provision are not limited to law

enforcement or fire protection agencies. Rather, that subsection grants sovereign

immunity to the State as to claims for losses resulting from “the failure to provide, or

the method of providing, law enforcement, police, or fire protection.” OCGA § 50-21-

                                           14
24 (6). Canady also involved claims arising from an automobile collision that

occurred when smoke originating from a controlled burn obscured visibility on a

highway.8 In that case, the Supreme Court defined the scope of subsection (6) to

encompass both claims regarding the making of policies to provide fire protection

services and to claims of negligence arising from “the acts and omissions of state

employees and officers executing and implementing those polices.” 280 Ga. at 830.

In so ruling, the Supreme Court did not focus on the nature of the agency involved

but rather on protecting the State’s policy decisions regarding the method of

providing police, law enforcement, or fire protection services, including policies

addressing the method of handling limited visibility arising from smoke on a

roadway. Id. Compare Davis, 285 Ga. at 207 (holding that subsection (6) did not

apply where state patrol officer was not acting pursuant to any policy in causing

collision).

      Therefore, to the extent that the Agreement addresses limited sight visibility

resulting from smoke caused by fires, it represents a policy decision among three state

agencies regarding a method of providing fire protection. Similarly, the GDOT


      8
       See Georgia Forestry Comm. v. Canady, 274 Ga. App. 556, 556-59 (617
SE2d 569) (2005) (outlining the facts surrounding the accident in that case).

                                          15
Policy, which incorporates and expands on the Agreement, represents a policy

decision by that department regarding its role in providing fire protection in such

situations. Because GDOT has assumed duties in providing fire protection under the

Agreement and its own policy, we find that GDOT may avail itself of the protections

provided under subsection (6) for its acts and/or omissions in connection with the fire

in this case.

       In order to determine whether sovereign immunity bars Grant’s claims, we

must examine GDOT’s duties in the event of low visibility due to smoke from a fire.

Under the Agreement, GDOT’s responsibility to place signage arises only after it

receives notification.9 Although the Agreement does not specify the source of the

notification triggering this duty, the GDOT Policy contemplates that notice may come

from two sources – the GSP and other sources – which in turn requires different



       9
        The Agreement provides that in cases of smoke or smog, GDOT has the
obligation:

                Upon notification, dispatch crews with signs to the scene. This
                crew will be responsible for proper placement of warning signs.
                Furnish additional traffic control as requested.




                                            16
responses by GDOT. If GDOT receives notice from a source other than GSP about

limited visibility conditions due to smoke, smog, or fog, GDOT is directed to

“immediately contact the GSP to verify the reports and request their assistance in

apprising the severity of the problem and the impact on highway safety.”

Alternatively, if GDOT is notified by GSP of limited visibility conditions threatening

the safety of the traveling public (presumably in the first instance or after GDOT had

already notified GSP upon receiving information from another source), the GDOT

Policy provides for a more in-depth response, including considering whether to place

signage or warning lights at the scene.10


      10
           The GDOT policy provides, in pertinent part, that:


      6.       When reports of threats to the safety of the traveling public are
               verified from either the GSP, or the Department’s own
               surveillance by maintenance or other personnel, a response will
               be triggered and comprised of the following:


               a.    The Area Engineer or their designee will visit the site and
                     determine the appropriate traffic control strategy to be
                     developed for the incident.


               b.    The District Traffic Operations Engineer shall assist in the
                     selection of strategy or assessment of needs, upon request.

                                            17
      It is clear from our review of the Agreement and the GDOT Policy that Grant’s

claims for failing to monitor I-16 for hazardous conditions is barred under the

doctrine of sovereign immunity because neither policy imposes any duty on the

GDOT to monitor roadways for hazardous conditions. Because Grant’s negligence

claim “lies in some defect in the policy itself,” i.e., that the policies should have

imposed a duty on GDOT to monitor roadways for hazards, GDOT is immune from

liability for any such claims. See Davis, 285 Ga. at 206.



             c.    The traffic control strategy for consideration shall include,
                   but not be limited to, any one or more of the following:


                   – Closing the road entirely
                   – Using alternative routes
                   – Deploying pilot car techniques
                   – Displaying advance signage and/or warning lights
                   – Narrowing the road to a single lane approach
                   – Notifying the local media
                   – Other actions.

             d.    The [TMC] in Atlanta should be notified of any verified
                   smoke, smog and/or fog incidents. Include the county,
                   location and traffic control strategies being employed when
                   making notifications.




                                         18
      Grant’s claims that GDOT failed to assess the hazard posed by the fire and

failed to place signs to warn the motoring public are barred for a similar reason. The

only evidence of record indicates that on the morning of the accident, Mixon received

a message from GDOT TMC that “law enforcement” had requested signage on I-16.

Grant has not pointed us to any evidence identifying the law enforcement agency or

agencies involved. Minutes later, Mixon received another notice about the Accident.

Because no evidence in the record shows that Mixon or anyone at GDOT received

any notice from GSP or anyone else about low visibility conditions on I-16 until

shortly before the Accident, we cannot say that GDOT negligently implemented its

policy or acted in a way that was not authorized by policy. See Davis, 285 Ga. at 206.

      In so holding, we recognize that, as Grant argues, GDOT may not have

complied with its own policy on the day before the Accident when the Bulloch

County Sheriff’s Office requested GDOT to place signs on SR 67 as there is no

evidence in the record as to whether GDOT ever contacted GSP to assess the

situation. However, we fail to see how Grant’s losses resulted from any failure to

implement that policy as contemplated by OCGA § 50-21-24 (6). Mixon placed

signage on SR 67 as requested, and at the time he left the scene, no limited visibility

conditions existed on the roadway. Thus, had Mixon contacted GSP at that time, the

                                          19
undisputed evidence shows that there were no existing visibility issues for GSP to

assess. And as we have explained, GDOT had no duty to monitor adjacent roadways

for potential visibility issues, and neither the Agreement nor GDOT Policy places a

duty on GDOT to alert GSP to provide such monitoring.11

      We find, therefore, that Grant has failed to show any negligence on the part of

GDOT in implementing its own policies and thus, she has failed to carry her burden

of establishing a waiver of sovereign immunity as to her claims against GDOT. As

a result, we affirm the trial court’s grant of GDOT’s motion to dismiss Grant’s claims

pursuant to the “right for any reason” rule. See Bobick v. Community & Southern

Bank, 321 Ga. App. 855, 870 (4) (743 SE2d 518) (2013) (grant of a motion to dismiss

will be affirmed if right for any reason).

      4. Finally, we consider whether the discretionary function exception found in

OCGA § 50-21-24 (2) bars Grant’s one remaining claim, asserting that GFC was

negligent in performing its duty to advise GSP about the fire. OCGA § 50-21-24 (2)


      11
         Similarly, although Grant also asserted that Mixon violated GDOT Policy by
failing to notify GDOT TMC on March 16 of a “smoke hazard” caused by the fire,
such omission cannot be linked to the Accident the next day because neither the
Agreement nor the policy require TMC or any other section of GDOT to monitor the
situation involving the smoke. Rather, that responsibility is assigned to GSP, upon
notice and as resources allow.

                                             20
provides that “[t]he state shall have no liability for losses resulting from . . . [t]he

exercise or performance of or the failure to exercise or perform a discretionary

function or duty on the part of a state officer or employee, whether or not the

discretion involved is abused.” The GTCA expressly defines the term “[d]iscretionary

function or duty” to mean “a function or duty requiring a state officer or employee to

exercise his or her policy judgment in choosing among alternate courses of action

based upon a consideration of social, political, or economic factors.” OCGA § 50-21-

22 (2).

      Although GFC never argued until appeal that it was protected by sovereign

immunity under subsection (2), the trial court nevertheless held that the exception

under subsection (2) applied because it found “the situation in the instant case

concerning GFC to be more like [that] contained [in Georgia Dept. of Human Svcs.

v. Spruill, 294 Ga. 100 (751 SE2d 315) (2013)]” than in Davis, on which Grant relied.

We note, however, that although in Spruill, the Supreme Court considered and

applied subsection (2), 294 Ga. at 105-106 (2), in Davis, the Court construed the

application of only subsection (6) to the facts in that case and did not address the

applicability of subsection (2). 285 Ga. at 204-207. The trial court never undertook

to determine whether Chassereau’s choice in delegating the duty to advise GSP to the

                                          21
county 911 dispatcher required the exercise of “a policy judgment in choosing among

various alternative actions based on social, political, and economic factors” as

required under OCGA § 50-21-22 (2). Accordingly, we find that the trial court

applied the wrong test.

      Nevertheless, even if we were to apply the proper test on de novo review, we

find that the existing record lacks evidence upon which to base such a determination.

GFC did not assert the applicability of subsection (2) below, and Grant did not have

the opportunity to present evidence and argument in opposition. Therefore, the record

is undeveloped as to the factors that may or may not have gone into Chassereau’s

decision to delegate to the county 911 dispatcher GFC’s duty to advise GSP of the

Stewart fire. Accordingly, we find that the trial court erred in granting GFC’s motion

to dismiss under subsection (2) on the existing record.

      Judgments affirmed in part and reversed in part. McFadden, J., concurs.

Miller, P. J., concurs fully as to Divisions 1, 2 and 4 and in judgment only as to

Division 3.




                                         22
