Case to Watch: The "Duty to Safeguard" in McConnell v. Georgia Department of Labor

McConnell et al. v. Georgia Department of Labor (Case No. S18C1316-S18C1317) presents the Court's first opportunity to definitively decide whether Georgia law recognizes a duty to safeguard personally identifiable information. 


Background:


Thomas McConnell filed a class action against the Georgia Department of Labor, alleging several tort claims in connection with the Department’s disclosure of personal information of McConnell and the proposed class members. McConnell alleges that a Department employee sent an e-mail to approximately 1,000 applicants for unemployment benefits including a spreadsheet that listed the name, social security number, home phone number, e-mail address, and age of over 4,000 Georgians who had registered for Department services, including McConnell. 



Proceedings Below: 

McConnell alleges that the employee’s conduct constituted the torts of negligently disclosing “personal information” as defined under Georgia law, breach of fiduciary duty, and invasion of privacy. McConnell seeks to recover out-of-pocket costs related to credit monitoring and identity protection services and damages resulting from the adverse impact to his credit score from the closing of accounts. 

After a hearing, the Superior Court of Cobb County granted the Department’s motion to dismiss McConnell’s complaint for failure to state a claim upon which relief can be granted. McConnell appealed, and, in McConnell v. Dept. of Labor, 337 Ga. App. 457, 787 S.E.2d 794 (2016), the Court of Appeals. The Supreme Court granted certiorari and held that the Court of Appeals erred in addressing the failure to state a claim before the threshold issue of sovereign immunity. McConnell v. Dept. of Labor, 302 Ga. 18, 19, 805 S.E.2d 79 (2017). On remand, the trial court held that sovereign immunity barred the claims. The Court of Appeals disagreed, but held that dismissing McConnell’s complaint for failure to state a claim was proper. 

Cert: 

The Supreme Court granted Cert on the following questions: 

1) Did the Court of Appeals err in holding that the State’s sovereign immunity was waived under the Georgia Torts Claims Act, OCGA § 50-21-20 et seq., for McConnell’s tort claims? 

2) Did the Court of Appeals err in holding that McConnell’s tort claims failed to state a claim? 



Why to watch: 


The case presents an interesting question for clarifying waivers of sovereign immunity under the Tort Claims Act, but is probably most notable for presenting an opportunity to definitively decide whether Georgia law recognizes a duty to safeguard personally identifiable information, a question that could influence data breach litigation involving Georgia companies or consumers.



Justices Peterson and Warren will not participate in the case.