SHARON R. CARSON, AS THE COURT APPOINTED OF THE ESTATE OF BERNITHA VAUGHN v. CHATHAM COUNTY

FIFTH DIVISION
                              BROWN, C. J.,
                       BARNES, P. J., and MERCIER, J.

                   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.
                              https://www.gaappeals.us/rules



                                                                       May 4, 2026




In the Court of Appeals of Georgia
 A26A0303. CARSON et al. v. CHATHAM COUNTY et al.

      MERCIER, Judge.

      Sharon Carson, as executrix of the Estate of Bernitha Vaughn, and Vaughn’s

daughter Terry Heyward (“plaintiffs”) appeal from the trial court’s order dismissing

Chatham County (“the County”) from this wrongful death and personal injury action

on sovereign immunity grounds. Finding no error, we affirm.

      “The doctrine of sovereign immunity, also known as governmental immunity,

protects all levels of governments from legal action unless they have waived their

immunity from suit.” City of Albany v. Dougherty County, 352 Ga. App. 664, 667(1)

(835 SE2d 681) (2019) (quotation marks omitted). A motion to dismiss grounded in

sovereign immunity challenges a trial court’s subject matter jurisdiction, rather than
the merits of a plaintiff’s complaint. See Alred v. Ga. Pub. Def. Council, 362 Ga. App.

465, 466 (869 SE2d 99) (2022) (“Sovereign immunity is not an affirmative defense,

going to the merits of the case, but raises the issue of the trial court’s subject matter

jurisdiction to try the case.” (quotation marks omitted)). To survive a motion to

dismiss on this basis, the plaintiff bears the burden of establishing that sovereign

immunity has been waived. See id.

      When a defendant raises a sovereign immunity challenge, “the trial court may

receive evidence if necessary to develop the record and make relevant factual findings

to decide the threshold issue of whether [the] defendant’s entitlement to sovereign

immunity deprives the court of subject matter jurisdiction.” Dep’t of Pub. Safety v.

Johnson, 343 Ga. App. 22, 24 (806 SE2d 195) (2017) (punctuation omitted). Although

we review a trial court’s ruling in this regard de novo, we will uphold the factual

findings underlying that ruling if they are supported by any evidence. See Alred, 362

Ga. App. at 466.

      With these principles in mind, we turn to the record in this case. Plaintiffs sued

the County, the City of Savannah (“the City”), and others in 2018, alleging that, on

March 9, 2016, a car being pursued at high speeds by unmarked police vehicles in


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Savannah collided with a car driven by Vaughn, killing her.1 The complaint asserted,

among other things, that County and City officers jointly engaged in the high-speed

pursuit as part of an undercover drug investigation, violating police policy and

negligently causing Vaughn’s death. The County moved to dismiss the claims against

it, arguing that it was protected from suit by sovereign immunity, and the trial court

granted the motion.2



      The case subsequently proceeded to trial against the City and Kareem Felder,

the individual driving the car that collided with Vaughn, resulting in a jury verdict for

plaintiffs exceeding $3,500,000. The jury apportioned fault between the two

defendants, assessing the City’s fault at 37.5 percent and Felder’s fault at 62.5

percent. In entering judgment, the trial court reduced the total damages awarded

against the City to $500,000, the amount of the City’s limited waiver of sovereign

immunity under OCGA § 36-92-2. This appeal followed.


      1
      The lawsuit originally named additional family members as plaintiffs, but only
Carson and Heyward are listed as plaintiffs in this appeal.
      2
       After the County filed its motion, plaintiffs dismissed their complaint without
prejudice, and, within six months of that dismissal, renewed the complaint. The
County refiled its motion to dismiss with respect to the renewed complaint.
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      Plaintiffs do not challenge the jury’s verdict on appeal. Rather, they argue that

the trial court erred in dismissing the County from the lawsuit; that, like the City, the

County waived its sovereign immunity up to $500,000 in damages stemming from the

County’s actions during the police chase; and that this $500,000 should be stacked

on top of the City’s $500,000 judgment.

      Pursuant to OCGA § 36-92-2(a)(3):

      The sovereign immunity of local government entities for a loss arising
      out of claims for the negligent use of a covered motor vehicle is waived
      up to ... $500,000.00 because of bodily injury or death of any one person
      in any one occurrence, an aggregate amount of $700,000.00 because of
      bodily injury or death of two or more persons in any one occurrence, and
      $50,000.00 because of injury to or destruction of property in any one
      occurrence, for incidents occurring on or after January 1, 2008.


      As used in this provision, a “claim” is “any demand against a local government

entity for money for a loss caused by negligence of a local government entity officer

or employee using a covered motor vehicle while carrying out his or her official duties

or employment.” OCGA § 36-92-1(1). The term “local government entity” includes

counties, as well as municipal corporations. See OCGA § 36-92-1(3). And a “covered




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motor vehicle” is any vehicle owned, leased, or rented by the local government entity

at issue. See OCGA § 36-92-1(2).



      On appeal, plaintiffs point to no specific evidence that the County owned,

leased, or rented any of the police vehicles involved in the incident leading to

Vaughn’s death. Instead, they contend that, pursuant to an intergovernmental

agreement executed in February 2016, the City and County operated and shared

responsibility for a joint police force, necessarily waiving sovereign immunity with

respect to the police activity. We disagree.

      Under the 2016 agreement, the Savannah-Chatham Metropolitan Police

Department (“SCMPD”) acted as a joint instrument of the City and County

governments, providing “the full range of police services in the unincorporated area

of the County and in the jurisdictional area of the City[.]” All SCMPD police officers

were to be sworn in by the City and the County, but were classified as City employees.

The agreement provided that capital assets and equipment would “be generally owned

by the entity that directly purchased the item[.]” Vehicles purchased by the County

constituted County property, while vehicles purchased by the City belonged to the


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City. The agreement specified: “[N]othing in this agreement shall be construed as a

rental agreement between the parties for use of [SCMPD] cars nor is there any waiver

of sovereign immunity based upon renting of [SCMPD] cars.” It also made clear that

the agreement did not “waiv[e] any immunity or defense available to either party

under law.”

      In their complaint, plaintiffs alleged that unmarked cars used by officers

assigned to the SCMPD, the County-run Counter Narcotics Team (“CNT”), and the

Savannah-Chatham Undercover Narcotics Investigative Team (“UNIT”)

participated in the undercover surveillance and pursuit of Felder on March 9, 2016.

Asserting that the trial court was required to take this allegation — and a claimed

connection between the County and the unmarked cars — as true, plaintiffs argue that

dismissal was improper. But a trial court addressing a motion to dismiss on sovereign

immunity grounds is not bound by the allegations in the complaint. See Bonner v.

Peterson, 301 Ga. App. 443, 443 (687 SE2d 676) (2009) (contrasting a motion to

dismiss for failure to state a claim under OCGA § 9-11-12(b)(6) with a motion to

dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12(b)(1)). On the

contrary, the court may consider evidence and make factual findings relating to


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sovereign immunity. See Dep’t of Pub. Safety, 343 Ga. App. at 23-24; Bonner, 301 Ga.

App. at 443.

       That is exactly what the trial court did here. In resolving the motion to dismiss,

the court found that all police vehicles involved in the incident giving rise to plaintiffs’

claims were owned by the City, not the County, rendering the sovereign immunity

waiver in OCGA § 36-92-2(a)(3) inapplicable to the County. See OCGA § 36-92-1(2)

(for purposes of the waiver, a “covered motor vehicle” is one owned, leased, or

rented by the local government entity at issue). At least some evidence supports this

conclusion. A captain with the SCMPD testified by affidavit that “no officers, agents,

employees or vehicles representing . . . Chatham County[] were involved in the March

9, 2016 Felder incident.” The director of the County’s Risk Management

Department, which maintained an inventory of all County-owned vehicles assigned

to the SCMPD, similarly averred that “[n]one of the vehicles involved in the incident

alleged in [plaintiffs’] complaint were owned or operated by Chatham County.” The

record further shows that SCMPD officers, including those assigned to UNIT, were

employed by the City. And although the County operated its own drug task force




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(CNT), the County presented evidence that CNT officers and vehicles did not take

part in the March 9, 2016 undercover operation or the pursuit of Felder.

      This evidence supports the trial court’s determination that County-owned

vehicles were not involved in Vaughn’s death. Plaintiffs’ reliance on the 2016

intergovernmental agreement — which they insist establishes a joint venture as to all

police activities — is unavailing. Rather than demonstrating County ownership of the

vehicles, the agreement makes clear that SCMPD police vehicles were not jointly

owned; they were owned by the government entity (the City or the County) that

purchased them, and nothing in the agreement establishes a rental relationship

between the parties.3

      Simply put, the trial court was authorized to find that the County did not own,

lease, or rent any of the police vehicles at issue here. Under the plain terms of OCGA


      3
        Plaintiffs cite Ayers v. Ass’n of County Comm’rs of Ga.-Interlocal Risk Mgmt.
Agency, 332 Ga. App. 230 (771 SE2d 743) (2015), to support their claim that the
County’s decision to enter the intergovernmental agreement necessarily establishes
a sovereign immunity waiver with respect to SCMPD vehicles. The Ayers decision,
however, does not address sovereign immunity or the waiver in OCGA § 36-92-2. And
we recently found sovereign immunity applicable in another case involving an
intergovernmental agreement. See Montgomery County v. Rountree, 374 Ga. App. 551
(913 SE2d 415) (2025). Without more, the mere fact that the County executed the
agreement with the City does not establish an immunity waiver. See id. at 553-554 (1).
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§§ 36-92-1 and 36-92-2(a)(3), therefore, these vehicles were not “covered motor

vehicles” with respect to the County. See Montgomery County v. Rountree, 374 Ga.

App. 551, 553-54(1) (913 SE2d 415) (2025) (ambulance not a “covered motor vehicle”

with respect to the county where plaintiff failed to show that the county owned or

leased the ambulance). Accordingly, because plaintiffs have not demonstrated that the

County waived sovereign immunity as to their claims, the trial court properly granted

the County’s motion to dismiss. See id. at 554 (1) (trial court erred in denying

county’s motion to dismiss where plaintiff failed to establish that “ambulance

involved in the collision is a ‘covered’ motor vehicle” under OCGA § 36-92-2(a)(3)).

      Judgment affirmed. Brown, C. J., and Barnes, P. J., concur.




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