No Pre-Suit Notice Required to Sue Cities for Intentional Acts

In West v. City of Albany, 2017 WL 875033 (Ga. March 6, 2017), the Georgia Supreme Court addressed whether an injured party was required to provide notice of intent to sue a city when the alleged wrongdoing was intentional rather than negligent. In an historic decision, the Court unanimously held that the ante litem (pre-suit) notice required for bringing suit against a municipality applies only to allegations of negligence, not to intentional acts.

The case involved a lawsuit against the City of Albany by an individual who claimed to have been fired pursuant to the Georgia Whistleblower’s Act (O.C.G.A. § 45-1-4). The plaintiff, Ms. West, sued the city for money damages, alleging that she had been the victim of retaliation after she reported financial irregularities in the city’s utility department.

The City of Albany moved to dismiss the lawsuit because Ms. West failed to comply with the pre-suit requirements set forth in O.C.G.A. § 36-33-5 (b). In pertinent part, the statute requires that “[W]ithin six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating…the negligence which caused the injury.” The Court held that the six month pre-suit requirement does not apply to whistleblower cases, because a clear reading of the statute limits the notice prerequisite to negligence cases.

The holding in West is significant because historically, Georgia courts have applied this municipal six month pre-suit notice to claims alleging both negligent and intentional acts. In West, the Court held that the “statute’s plain language demonstrates it applies only to damages caused by negligence, not intentional acts.”

One of the purposes of the ante litem statute is to preserve public funds by limiting municipal exposure for monetary damages. Now that the Court has narrowly interpreted the statute, the Georgia legislature may move to amend O.C.G.A. § 36-33-5 (b) to comport with the manner in which it has long been interpreted: requiring notice for allegations of both negligent and intentional wrongdoing. Otherwise, going forward, plaintiffs need only provide the statutory ante litem notice to municipalities for allegations of negligence.