10 LC 35
1760S
The
Senate Public Safety Committee offered the following substitute to SB
318:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 1 of Title 35 of the Official Code of Georgia Annotated, relating
to general provisions for law enforcement officers and agencies, so as to
require an affidavit to accompany complaints in certain civil actions for
damages against law enforcement officers; to prohibit the settling of a claim
for damages against a law enforcement officer without the approval of such
officer; to provide for related matters; to provide for an effective date and
applicability; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
1 of Title 35 of the Official Code of Georgia Annotated, relating to general
provisions for law enforcement officers and agencies, is amended by adding a new
Code section to read as follows:
"35-1-16.
(a)
In any action for damages brought against a certified law enforcement officer
employed by a law enforcement agency, based, in whole or in part, on the alleged
performance or nonperformance of a discretionary act requiring the exercise of
personal deliberation and judgment by such officer acting within the scope of
his or her official duties, the plaintiff shall be required to file with the
complaint an affidavit of an expert competent to testify. The affidavit shall
set forth specifically at least one discretionary act or omission claimed to
exist and the factual basis for each such claim. This subsection shall not
apply to any action that does not include a claim for damages based upon the
performance or nonperformance of a discretionary act, including a claim based on
the performance or nonperformance of a ministerial act or a claim based on the
commission of a willful or wanton act committed with malice or intent to
harm.
(b)
The contemporaneous affidavit filing requirement pursuant to subsection (a) of
this Code section shall not apply to any case in which the period of limitation
will expire or in which there is a good faith basis to believe it will expire on
any claim stated in the complaint within ten days of the date of filing the
complaint and, because of time constraints, the plaintiff has alleged that an
affidavit of an expert could not be prepared. In such cases, if the attorney
for the plaintiff files with the complaint an affidavit in which the attorney
swears or affirms that his or her law firm was not retained by the plaintiff
more than 90 days prior to the expiration of the period of limitation on the
plaintiff's claim or claims, the plaintiff shall have 45 days after the filing
of the complaint to supplement the pleadings with the affidavit. The trial
court shall not extend such time for any reason without consent of all parties.
If either affidavit is not filed within the periods specified in this Code
section, or it is determined that the law firm of the attorney who filed the
affidavit permitted in lieu of the contemporaneous filing of an expert affidavit
or any attorney who appears on the pleadings was retained by the plaintiff more
than 90 days prior to the expiration of the period of limitation, the complaint
shall be dismissed for failure to state a claim.
(c)
This Code section shall not be construed to extend any applicable period of
limitation, except that if the affidavits are filed within the periods specified
in this Code section, the filing of the affidavit of an expert after the
expiration of the period of limitations shall be considered timely and shall
provide no basis for a statute of limitations defense.
(d)
If a complaint required to have an affidavit pursuant to subsection (a) of this
Code section is filed without the contemporaneous filing of an affidavit as
permitted by subsection (b) of this Code section, the defendant shall not be
required to file an answer to the complaint until 30 days after the filing of
the affidavit of an expert, and no discovery shall take place until after the
filing of the answer.
(e)
If a plaintiff files an affidavit which is allegedly defective, and the
defendant to whom it pertains alleges, with specificity, by motion to dismiss
filed on or before the close of discovery, that said affidavit is defective, the
plaintiff's complaint shall be subject to dismissal for failure to state a
claim, except that the plaintiff may cure the alleged defect by amendment
pursuant to Code Section 9-11-15 within 30 days of service of the motion
alleging that the affidavit is defective. The trial court may, in the exercise
of its discretion, extend the time for filing said amendment or response to the
motion, or both, as it shall determine justice requires.
(f)
If a plaintiff fails to file an affidavit as required by this Code section and
the defendant raises the failure to file such an affidavit by motion to dismiss
filed contemporaneously with its initial responsive pleading, such complaint
shall not be subject to the renewal provisions of Code Section 9-2-61 after the
expiration of the applicable period of limitation, unless a court determines
that the plaintiff had the requisite affidavit within the time required by this
Code section and the failure to file the affidavit was the result of a
mistake.
(g)
No action for damages brought against a certified law enforcement officer may be
settled without the written consent of such officer.
(h)
This Code section shall not apply to an action filed in response to an
employment decision made by a certified peace officer or his or her employing
agency."
SECTION
2.
This
Act shall become effective on July 1, 2010, and shall apply to all causes of
action filed on or after such date.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.