                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, 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


                                                                      June 28, 2017




In the Court of Appeals of Georgia
 A17A0230. GEORGIA PORTS AUTHORITY v. LAWYER.

      BRANCH, Judge.

      This case arises out of injuries sustained by Bruce Lawyer while working

aboard a ship docked at the Garden City Terminal in the Port of Savannah. A

Chatham County jury found that these injuries were caused by the negligence of a

Georgia Ports Authority (“GPA”) employee, and awarded Lawyer $4.5 million in

damages. After the jury returned its verdict, the trial court issued an order denying the

GPA’s pretrial motion to dismiss Lawyer’s federal maritime claim for lack of subject

matter jurisdiction and entered judgment in favor of Lawyer. The GPA now appeals

each of these orders. The GPA argues that the trial court erred in finding that the GPA

is not an instrumentality of the State and therefore is not entitled to immunity from

suit under the Eleventh Amendment to the United States Constitution. Additionally,
the GPA contends that the trial court erred in denying its motion for a directed verdict

on Lawyer’s maritime claim because Lawyer failed to come forward with any

evidence that his injury occurred on navigable waters. For reasons explained more

fully below, we find no error and affirm.

      The facts giving rise to this lawsuit are not in dispute and the parties agree that

Lawyer was injured while working aboard the M/V Ibrahim Dede, a ship that was

docked at a facility located on the Savannah River. Lawyer’s job on that day was to

secure containers of cargo that were being transferred onto the ship via a ship-to-

shore river crane operated by a GPA employee. During that process, the negligence

of the crane operator caused one of the “twist locks” attached to the container being

loaded to dislodge and fall into the ship’s cargo hold, where Lawyer was working.

The twist lock – which is a metal piece weighing approximately 16 pounds – struck

Lawyer in the head, inflicting permanent, life-changing injuries. Lawyer thereafter

sued the GPA in superior court, asserting claims under both federal maritime law and

the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20, et seq. Prior to trial, the

GPA moved to dismiss Lawyer’s maritime claim on the ground that because the GPA

was an arm of the State, the Eleventh Amendment immunized it from suits for



                                            2
violations of federal law. The trial court reserved ruling on that motion until after

trial.1

          The jury returned a verdict in which it found that GPA’s negligence was the

sole cause of Lawyer’s injuries and awarding Lawyer damages of $4.5 million. The

trial court thereafter considered GPA’s motion to dismiss and denied the same. That

same day, the trial court entered the order of judgment in favor of Lawyer and against

the GPA. This appeal followed.

          1. The Eleventh Amendment to the United States Constitution provides that

“[t]he Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any Foreign State.” “It has


          1
          The deferred ruling appears to result from the fact that the GTCA caps
damages at $1 million. See OCGA § 50-21-29 (b) (1). Thus, had Lawyer prevailed
at trial but been awarded $1 million or less in damages, the question of Eleventh
Amendment immunity would have been moot, as the GPA would be liable for that
judgment under the GTCA. The $4.5 million award, however, made a decision on
Eleventh Amendment immunity necessary because such immunity would allow the
GPA to avoid paying $3.5 million of that amount. See In re State of New York, 256
U. S. 490, 497 (41 SCt 588, 65 LEd 1057) (1921) (Eleventh Amendment immunity
applies to federal admiralty and maritime claims). In the absence of such immunity,
however, the GPA is liable for the entire judgment. See Workman v. Mayor of New
York City, 179 U. S. 552, 560 (21 SCt 212, 45 LEd 314) (1900) (federal maritime law
preempts any state-conferred immunity).

                                           3
long been settled” that the protections afforded by the Eleventh Amendment extend

“not only [to] actions in which a State is actually named as the defendant, but also [to]

certain actions against state agents and state instrumentalities.” Regents of the Univ.

of California v. Doe, 519 U. S. 425, 429 (II) (117 SCt 900, 137 LE2d 55) (1997)

(citations omitted). And in 1999, the United States Supreme Court held that the

Eleventh Amendment also protects the states and any arm thereof from private suits

brought against them in their own courts. Alden v. Maine, 527 U. S. 706, 754 (II) (4)

(119 SCt 2240, 144 LE2d 636) (1999).

      Several years after the decision in Alden, this Court summarily held that “[f]or

purposes of determining Eleventh Amendment immunity, the GPA is an

instrumentality of the State of Georgia.” Ga. Ports Auth. v. Andre Rickmers

Schiffsbeteiligungsges MBH & Co. KG, 262 Ga. App. 591, 593-594 (2) (585 SE2d

883) (2003), citing Hodges v. Tomberlin, 510 F Supp. 1280, 1281 (S. D. Ga. 1980).

Our Supreme Court granted certiorari to consider “whether the Georgia Ports

Authority is entitled to immunity under the Eleventh Amendment . . . for claims

sounding in maritime law.” Hines v. Ga. Ports Auth., 278 Ga. 631, 631 (604 SE2d

189) (2004). As part of its analysis, our Supreme Court adopted the three-part test

articulated by the United States Court of Appeals for the Eleventh Circuit for

                                           4
determining whether an entity is an instrumentality of the state for purposes of the

Eleventh Amendment. Id at 634. Under that test, whether a state entity is entitled to

Eleventh Amendment immunity depends upon three factors: “(1) how state law

defines the entity; (2) what degree of control the state maintains over the entity; and

(3) from where the entity derives its funds and who is responsible for satisfying the

judgments against the entity.” Id., citing Vierling v. Celebrity Cruises, 339 F3d 1309,

1314 (11th Cir. 2003). After considering these factors, the Hines court concluded that

the GPA “is not an arm of the State.” Id. at 637. In doing so, however, the court

indicated that the evidentiary record in the case was not as substantial as the Court

might have liked, noting that the GPA “chose to submit its contention of immunity

to the trial court on a motion to dismiss [based on the plaintiffs’ failure to comply

with the procedural requirements of the GTCA], rather than on a motion for summary

judgment . . . .” Id. at 636, n. 32 (further observing that “[a]n analysis of the [GPA]

budget would be most useful in determining whether it was dependent upon the

State,” but that because of the case’s procedural posture, no such analysis had been

presented).

      Here, the GPA moved to dismiss Lawyer’s federal law claim under OCGA §

9-11 -12 (b) (1) and (h) (3) for lack of subject matter jurisdiction. In support of this

                                           5
motion, the GPA filed a significant amount of documentary and testimonial evidence

to demonstrate its argument that under the three-part test adopted in Hines, the GPA

is an instrumentality of the State of Georgia. On appeal, therefore, the GPA asserts

that the holding in Hines should be reconsidered in light of the evidentiary record in

this case. Regardless of the merits of the GPA’s arguments on this issue, however, we

are not at liberty to reconsider Hines, as “this Court has no authority to overrule or

modify a decision made by the Georgia Supreme Court.” Chin Pak v. Ga. Dept. of

Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 488 (731 SE2d

384) (2012). See also Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI (“the decisions of

the Supreme Court shall bind all other courts as precedents”) (footnote omitted);

Cargile v. State, 194 Ga. 20, 22 (1) (20 SE2d 416) (1942) (the constitutional

provision that decisions of Supreme Court shall bind the Court of Appeals as

precedents is applicable in all cases). Accordingly, because we are bound by the

Georgia Supreme Court’s holding that the GPA is not entitled to immunity under the

Eleventh Amendment, we affirm the trial court’s denial of the GPA’s motion to

dismiss Lawyer’s maritime claim.

      2. In its second enumeration of error, the GPA contends that the trial court

erred in denying its motion for directed verdict on Lawyer’s maritime claim because

                                          6
he failed to present any evidence that the accident in question occurred on navigable

waters.2 This argument, however, ignores the admissions contained in the GPA’s

answer to Lawyer’s complaint.

      Lawyer alleged in his complaint that at the time of the accident, the Ibrahim

Dede “was located on the navigable waters of the United States for the purpose of

loading and discharge of cargo.” And in its answer, the GPA admitted this allegation.

This part of the answer constitutes an admission in judicio, and because the GPA

never sought to withdraw this admission or otherwise amend its answer, it is bound



      2
        Federal maritime law “governs only those torts occurring on the navigable
waters of the United States.” Executive Jet Aviation, Inc. v. City of Cleveland, Ohio,
409 U. S. 249, 254 (I) (93 SCt 493, 34 LEd2d 454) (1972) (citation and punctuation
omitted). See also Minnie v. Port Huron Terminal Co., 295 U. S. 647, 648 (55 SCt
884, 79 LEd 1631) (1935).

      The Supreme Court of the United States long ago defined “navigable
      waters” as waters that are capable for use in commerce[.] . . . “[Waters]
      are navigable in fact when they are used, or are susceptible of being
      used, in their ordinary condition, as highways for commerce, over which
      trade and travel are or may be conducted in the customary modes of
      trade and travel on water.”


Tundidor v. Miami-Dade County, 831 F3d 1328, 1331 (III) (11th Cir. 2016), quoting
The Daniel Ball, 77 U. S. (10 Wall.) 557 (19 LEd 999) (1870).

                                          7
by the same. See Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 519 (1) (434 SE2d

63) (1993) (“a party to a suit will not be allowed to [contest] an admission made in

his pleadings, without withdrawing it from the record”); Four Square Constr. Co.,

Inc. v. Jellico Coal & Charcoal Co., 145 Ga. App. 650, 650 (244 SE2d 612) (1978);

Evans v. Equico. Lessors, 140 Ga. App. 583, 583 (231 SE2d 534) (1976). Moreover,

because this admission is binding on the GPA, it operated to relieve Lawyer of the

burden of coming forward with evidence to prove that his injury occurred on

navigable waters. Jabaley v. Jabaley, 208 Ga. App. 179, 179 (1) (430 SE2d 119)

(1993). See also OCGA § 24-8-821 (“[w]ithout offering the same in evidence, either

party may avail himself or herself of allegations or admissions made in the pleadings

of the other”); NationsBank, N. A. v. Tucker, 231 Ga. App. 622, 624-625 (2) (500

SE2d 378) (1998) (an admission in defendant’s answer that defendant neither

withdraws nor amends becomes an admission in judicio and requires no further proof

at trial). Accordingly, we find no error in the trial court’s denial of the GPA’s motion

for a directed verdict on Lawyer’s claim under federal maritime law.

      For the reasons set forth above, we affirm both the denial of the GPA’s motion

to dismiss for lack of subject matter jurisdiction and the denial of its motion for a

directed verdict.

      Judgment affirmed. McFadden, P. J., and Bethel, J., concur.


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