Claims Against Georgia State Agencies: Tort Claims Act Explained

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Yes, a Georgia state agency can be sued for an injury its employee causes while on the job, but only on the terms of the Georgia Tort Claims Act, and the first step comes before any lawsuit: a written notice of claim to the Risk Management Division of the Department of Administrative Services within 12 months of the date the loss was discovered or should have been discovered. The General Assembly declared that “the state shall only be liable in tort actions within the limitations of this article and in accordance with the fair and uniform principles established in this article” (OCGA 50-21-21(a)). Those limitations include who counts as the state, which employees it answers for, a list of functions for which it keeps its immunity, a filing deadline, and a cap on recovery.

Who Counts as “the State”

The article defines “state” as “the State of Georgia and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions, but does not include counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities” (OCGA 50-21-22(5)). A “state officer or employee” includes elected and appointed officials, law enforcement officers, and persons acting on behalf of the state in any official capacity, “whether with or without compensation,” but “does not include an independent contractor doing business with the state” (OCGA 50-21-22(7)).

The Limited Waiver and the Proper Defendant

“The state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; 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)). A “loss” includes personal injury, disease, death, damage to tangible property, lost wages and economic loss to the injured person, pain and suffering, mental anguish, “and any other element of actual damages recoverable in actions for negligence” (OCGA 50-21-22(3)).

The waiver runs to the state, not to the employee. “This article constitutes the exclusive remedy for any tort committed by a state officer or employee,” and an officer or employee acting within the scope of official duties “is not subject to lawsuit or liability therefor” (OCGA 50-21-25(a)). The General Assembly gave its reason in the same article: state officers and employees should “be free to act and to make decisions, in good faith, without fear of thereby exposing themselves to lawsuits and without fear of the loss of their personal assets” (OCGA 50-21-21(b)). The claimant therefore “must name as a party defendant only the state government entity for which the state officer or employee was acting,” and an employee named individually is replaced by that entity (OCGA 50-21-25(b)). A settlement or judgment under the article “constitutes a complete bar to any further action by the claimant against a state officer or employee or the state by reason of the same occurrence” (OCGA 50-21-25(c)).

The Notice of Claim

“No action against the state under this article shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state” (OCGA 50-21-26(a)(3)). The statute sets out each part of that notice (OCGA 50-21-26(a)):

  • Timing. Written notice “within 12 months of the date the loss was discovered or should have been discovered.”
  • Delivery. Notice “shall be mailed by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services,” and a copy goes, personally or by first-class mail, to the state government entity whose acts or omissions are the basis of the claim.
  • Contents. To the extent of the claimant’s knowledge and belief and as may be practicable, the notice states the entity, the time and place of the occurrence, the nature of the loss, the amount of the loss claimed, and the acts or omissions that caused it.
  • Exhibits. A complaint must attach a copy of the notice and the delivery receipt, and if that failure “is not cured within 30 days after the state raises such issue by motion, then the complaint shall be dismissed without prejudice.”

After the notice is presented, no action may begin “until either the Department of Administrative Services has denied the claim or more than 90 days have elapsed after the presentation of the notice of claim without action by the Department of Administrative Services, whichever occurs first” (OCGA 50-21-26(b)).

The Deadline to Sue and Where

“[A]ny tort action brought pursuant to this article is forever barred unless it is commenced within two years after the date the loss was or should have been discovered” (OCGA 50-21-27(c)). Statutes of ultimate repose and abrogation apply, and “[a]ll provisions relating to the tolling of limitations of actions, as provided elsewhere in this Code, shall apply” (OCGA 50-21-27(d), (e)). The action goes to “the state or superior court of the county wherein the tort giving rise to the loss occurred,” and a wrongful death action may also be brought in the county where the decedent died (OCGA 50-21-28).

For example, imagine a loss discovered on March 1, 2027. The 12-month notice window would run to March 1, 2028, and the two-year filing period to March 1, 2029. A notice presented on the last possible day would still hold the lawsuit back until the Department denied the claim or more than 90 days passed, so the two clocks overlap rather than run one after the other.

Functions for Which the State Keeps Its Immunity

OCGA 50-21-24 provides that “[t]he state shall have no liability for losses resulting from” thirteen listed matters. Among them:

  • “An act or omission by a state officer or employee exercising due care in the execution of a statute, regulation, rule, or ordinance, whether or not such statute, regulation, rule, or ordinance is valid” (paragraph (1));
  • “The 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” (paragraph (2)), where a “discretionary function or duty” is one “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));
  • inspection powers or functions, including “failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state” (paragraph (8));
  • licensing powers or functions, including the issuance, denial, suspension, or revocation of a permit or license (paragraph (9)); and
  • “[t]he plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design” (paragraph (10)).

Other paragraphs reach the assessment or collection of tax; legislative, judicial, quasi-judicial, and prosecutorial action or inaction; administrative action or inaction of a legislative, quasi-legislative, judicial, or quasi-judicial nature; civil disturbance, riot, insurrection, or rebellion, and “the failure to provide, or the method of providing, law enforcement, police, or fire protection”; a list of torts running from assault, battery, and false imprisonment to libel, slander, and interference with contractual rights; “[f]inancing regulatory activities”; and activities of the Georgia National Guard or organized militia in training or duty, an exception that “does not apply to vehicular accidents” (paragraphs (3)-(7), (11), (12)). Paragraph (13) concerns failures caused by computer date errors that occurred before December 31, 2005.

Trial and the Caps

Trial “shall be conducted by a judge with a jury; provided, however, the parties may agree that the same be tried by a judge without a jury” (OCGA 50-21-29(a)). “[N]o person shall recover a sum exceeding $1 million because of loss arising from a single occurrence, regardless of the number of state government entities involved; and the state’s aggregate liability per occurrence shall not exceed $3 million,” and “[t]he existence of these caps on liability shall not be disclosed or suggested to the jury” (OCGA 50-21-29(b)(1)). A separate paragraph governs claims brought under Article 8 of Chapter 8 of Title 31, and even there “in no event shall the state’s liability exceed the limits provided for in paragraph (1)” (OCGA 50-21-29(b)(2)).

Parties can also agree to the cap in the pretrial order. In Clark v. Leigh, 324 Ga. 733 (2026), the Supreme Court of Georgia described its earlier decision in Department of Human Resources v. Phillips, 268 Ga. 316 (1997), where “the parties expressly agreed in the pretrial order that the $1,000,000-per-person damages cap in the Georgia Tort Claims Act would apply, but the trial court entered judgment in excess of the agreed-upon caps.” Phillips held, in words Clark quoted, that “the trial court abused its discretion by implicitly modifying the pretrial order,” and the portion of the judgment above the agreed cap was reversed.

Frequently Asked Questions

What if the employee was acting outside the job?
The state “shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment” (OCGA 50-21-23(a)). The article also does not give the employee immunity “if it is proved that the officer’s or employee’s conduct was not within the scope of his or her official duties or employment” (OCGA 50-21-25(a)).

Is a private contractor working for the state a state employee under the Act?
The definition of a state officer or employee excludes “an independent contractor doing business with the state,” and, except as the paragraph otherwise provides, any corporation, private firm, or other private entity (OCGA 50-21-22(7)).

Are volunteers and foster parents treated as state employees?
The definition includes a volunteer “in a structured volunteer program organized, controlled, and directed by a state government entity,” members of state boards and similar bodies, and “foster parents and foster children” (OCGA 50-21-22(7)).

Does repeated exposure to the same hazard count as one occurrence under the cap?
The article defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions” (OCGA 50-21-22(3.1)).

Can the claimant see the file the state builds while investigating the notice?
Documents and information the Department of Administrative Services gathers or prepares in investigating the claim “shall be considered privileged and confidential and shall not be subject to discovery by any claimant in any proceeding under this article except as otherwise provided by law” (OCGA 50-21-26(d)).

Can the claim be filed in federal court, or against a county or city?
The state waives immunity “only with respect to actions brought in the courts of the State of Georgia” and not in the courts of the United States (OCGA 50-21-23(b)). Counties, municipalities, and school districts fall outside the article’s definition of “state”; claims against a municipality and against a county are presented under OCGA 36-33-5(b) and OCGA 36-11-1.

  • OCGA 50-21-21(a), (b); OCGA 50-21-22(2), (3), (3.1), (5), (7); OCGA 50-21-23(a), (b); OCGA 50-21-24
  • OCGA 50-21-25(a), (b), (c); OCGA 50-21-26(a), (b), (d); OCGA 50-21-27(c), (d), (e); OCGA 50-21-28; OCGA 50-21-29(a), (b)
  • OCGA 36-33-5(b); OCGA 36-11-1
  • Clark v. Leigh, 324 Ga. 733 (2026), describing Department of Human Resources v. Phillips, 268 Ga. 316 (1997)

Disclaimer

This article provides general information about tort claims against the State of Georgia. It is not legal advice and does not create an attorney-client relationship. Whether a claim falls within the waiver or an exception, and whether the notice and filing requirements have been met, depend on the specific facts and on deadlines that can bar a claim. A person injured by a state agency should consult a licensed Georgia attorney promptly about the particular situation.

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