(Code 1933, § 56-2437, enacted by Ga. L. 1960, p. 289, § 1; Ga. L. 1985, p. 1054, § 1; Ga. L. 2002, p. 579, § 1.)
Cross references.- Effect of purchasing liability insurance on sovereign immunity of municipality, § 36-33-1.
Law reviews.- For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For article surveying developments in Georgia torts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 247 (1981). For survey article on insurance, see 34 Mercer L. Rev. 177 (1982). For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For article surveying local government law in 1984-1985, see 37 Mercer L. Rev. 313 (1985). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B.J. 24 (1985). For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986). For article, "Georgia Local Government Tort Liability: the 'Crisis' Conundrum", see 2 Ga. St. U.L. Rev. 19 (1986). For article, "The Fall and Rise of Official Immunity," see 25 Ga. St. B.J. 93 (1988). For annual survey of local government law, see 43 Mercer L. Rev. 317 (1991). For annual survey article discussing developments in education law, see 52 Mercer L. Rev. 221 (2000). For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000). For article, "Education Law," see 53 Mercer L. Rev. 281 (2001). For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For survey article on local government law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 353 (2003). For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004). For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004). For annual survey of local government law, see 58 Mercer L. Rev. 267 (2006). For survey article on insurance law, see 60 Mercer L. Rev. 191 (2008). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For annual survey of law on insurance, see 62 Mercer L. Rev. 139 (2010). For annual survey on local government law, see 64 Mercer L. Rev. 213 (2012). For annual survey on local government law, see 65 Mercer L. Rev. 205 (2013). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015). For article, "What's the 'Use': Vehicle Maintenance Liability Barred by Sovereign Immunity Amendment Intended to Promote Waiver," see 69 Mercer L. Rev. 651 (2018). For annual survey on local government law, see 71 Mercer L. Rev. 189 (2019). For note discussing some limitations on governmental tort immunity, see 5 Ga. St. B.J. 494 (1969). For note analyzing sovereign immunity in this state and proposing implementation of a waiver scheme and creation of a court of claims pursuant to Ga. Const., Art. VI, Sec. V, Para. I, see 27 Emory L.J. 717 (1978). For note on the 2002 amendment of this Code section, see 19 Ga. St. U.L. Rev. 243 (2002).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality of statutory scheme for waiver of immunity by state and counties.
- Statutory scheme under which plaintiffs having tort claims against the state have the benefit of the broad waiver of sovereign immunity afforded by the Georgia Tort Claims Act, O.C.G.A. § 50-21-20 et seq., which does not extend to counties, whereas a county's waiver of immunity is allowed only to the extent of insurance purchased for negligence arising from the use of a motor vehicle, results in unequal treatment; however, the statute does not violate due process or equal protection. Woodard v. Laurens County, 265 Ga. 404, 456 S.E.2d 581 (1995).
Legislative intent.
- Construed together, the legislative intent of O.C.G.A § 33-24-51 and former O.C.G.A. § 45-9-40 was to require that the state procure liability insurance for the operation of state-owned motor vehicles, but to permit procurement of similar insurance by counties and municipalities at their discretion. Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235 (1990).
Definition of "motor vehicle."
- In determining if a county waived the county's sovereign immunity through the voluntary purchase of liability insurance under the second sentence of O.C.G.A. § 33-24-51(b), a trial court erred in considering the definition of "motor vehicle" provided in O.C.G.A. § 36-92-1; rather, "any motor vehicle" was defined as a vehicle that was capable of being driven on the public roads that was covered by a liability insurance policy purchased by the county. Glass v. Gates, 311 Ga. App. 563, 716 S.E.2d 611 (2011), aff'd, 291 Ga. 350, 729 S.E.2d 361 (2012).
Waiver does not apply to intentional conduct.
- It is clear from the text of O.C.G.A. § 33-24-51(b) that the waiver is meant to encompass negligent acts, not intentional ones. Williams v. DeKalb County, 327 Fed. Appx. 156 (11th Cir. 2009)(Unpublished).
Discretion to provide insurance.
- Decision whether to provide insurance is made discretionary by O.C.G.A. § 33-24-51. Brantley v. Edwards, 197 Ga. App. 713, 399 S.E.2d 215 (1990).
City has the discretion to decide whether to purchase liability insurance for its police cars. Williams v. Solomon, 242 Ga. App. 807, 531 S.E.2d 734 (2000).
Section prohibits inquiry during voir dire as to jurors' possessing interest in city's insurer.
- Legislature must be presumed to have been familiar with Ga. L. 1951, p. 214, § 2 (see O.C.G.A. § 15-12-133), which provides for a searching examination during voir dire to achieve the goal of an impartial and unbiased jury, when there was included in this section, the prohibition of suggesting the existence of insurance; the intention of the lawmakers was obviously to forbid any inquiry during voir dire as to jurors' possessing any financial interest in the insurance company carrying the public liability insurance on the city's vehicles. Mitchell v. City of Newnan, 125 Ga. App. 761, 188 S.E.2d 917 (1972) (decided prior to 1985 amendment, deleting language in subsection (d) forbidding suggesting existence of insurance).
Subsection (d) of this section clearly shows that the parties in the trial of a case may not quiz the jurors either individually or as a panel concerning financial interest in the insurance company carrying public liability coverage on the city's vehicle involved in the collision. Mitchell v. City of Newnan, 125 Ga. App. 761, 188 S.E.2d 917 (1972) (decided prior to 1985 amendment, deleting language in subsection (d) forbidding suggesting existence of insurance).
Cited in City of Macon v. Smith, 117 Ga. App. 363, 160 S.E.2d 622 (1968); Foster v. Crowder, 117 Ga. App. 568, 161 S.E.2d 364 (1968); Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969); Winston v. City of Austell, 123 Ga. App. 183, 179 S.E.2d 665 (1971); Tennyson v. Columbus, 127 Ga. App. 3, 192 S.E.2d 396 (1972); Strickland v. City of Winterville, 130 Ga. App. 425, 203 S.E.2d 706 (1973); Sheley v. Board of Pub. Educ., 132 Ga. App. 314, 208 S.E.2d 126 (1974); Lee v. Petty, 133 Ga. App. 201, 210 S.E.2d 383 (1974); Foster v. Cobb County Bd. of Educ., 133 Ga. App. 768, 213 S.E.2d 38 (1975); Central of Ga. R.R. v. Schnadig Corp., 139 Ga. App. 193, 228 S.E.2d 165 (1976); Meriwether County v. Creamer, 146 Ga. App. 651, 247 S.E.2d 178 (1978); Cason v. Columbus, 148 Ga. App. 208, 250 S.E.2d 836 (1978); City of Atlanta v. Whatley, 161 Ga. App. 705, 289 S.E.2d 541 (1982); City of Rossville v. Britton, 170 Ga. App. 1, 316 S.E.2d 16 (1984); Hicks v. Walker County Sch. Dist., 172 Ga. App. 428, 323 S.E.2d 231 (1984); Western Stone & Metal Corp. v. Jones, 180 Ga. App. 79, 348 S.E.2d 478 (1986); Peeples v. City of Atlanta, 189 Ga. App. 888, 377 S.E.2d 889 (1989); Swan v. Johnson, 219 Ga. App. 450, 465 S.E.2d 684 (1995); Crisp County Sch. Sys. v. Brown, 226 Ga. App. 800, 487 S.E.2d 512 (1997); Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341 (2001); CSX Transp., Inc. v. City of Garden City, 196 F. Supp. 2d 1288 (S.D. Ga. 2002); City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015); Primas v. City of Milledgeville, 296 Ga. 584, 769 S.E.2d 326 (2015); Franklin v. Pitts, 349 Ga. App. 544, 826 S.E.2d 427 (2019).
Waiver of Immunity
Section limits the right of municipalities to waive governmental immunity in cases arising out of the operation of motor vehicles. Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972).
This section clearly contemplates that all valid claims against a municipality up to the limits of the insurance policies provided pursuant thereto shall be paid when liability would exist except for governmental immunity. Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972).
Construction of duplicative constitutional grants of sovereign immunity.
- The 1991 amendment of Ga. Const. 1983, Art. I, Sec. II, Para. IX, extending sovereign immunity to all state departments and agencies regardless of any insurance, did not divest the General Assembly of authority under Ga. Const. 1983, Art. IX, Sec. II, Para. IX, to waive the immunity of counties based on motor vehicle liability insurance; therefore, the amendment did not abrogate the provisions of O.C.G.A. § 33-24-51 and a county's governmental immunity was waived to the extent of liability insurance purchased. Daniels v. Decatur County, 212 Ga. App. 378, 441 S.E.2d 790 (1994).
Term "governmental immunity," as used in O.C.G.A § 33-24-51, is synonymous with "sovereign immunity" and does not encompass both "sovereign" and "official" immunity. Thus, the waiver of immunity provided by O.C.G.A § 33-24-51 is not in conflict with Ga. Const. 1983, Art. I, Sec. II, Para. IX, since the statute provides both a waiver of sovereign immunity and the extent of such waiver, i.e., the extent of liability insurance coverage. Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994).
Construction of subsection (b).
- Subsection (b) of O.C.G.A. § 33-24-51 provides for waiver of sovereign immunity to the extent of the amount of liability insurance purchased for the negligence of duly authorized officers, agents, servants, attorneys, or employees in the performance of their official duties that arises out of either ownership, maintenance, operation, or use of a motor vehicle. Chamlee v. Henry County Bd. of Educ., 239 Ga. App. 183, 521 S.E.2d 78 (1999).
Trial court erred in dismissing the farmers' tort claims based on sovereign immunity because the date that an action was filed did not determine whether the 1991 amendment to Ga. Const. 1983, Art. I, Sec. II, Para. IX controlled; as a truck was used for spreading sewage sludge on the farmers' property, damages resulting from the spreading of the sludge from the truck were injuries arising by reason of use of the truck for purposes of O.C.G.A. § 33-24-51(b). McElmurray v. Augusta-Richmond County, 274 Ga. App. 605, 618 S.E.2d 59 (2005).
O.C.G.A.
§ 33-24-51 subject to waiver of immunity provision. - O.C.G.A. § 33-24-51 provides immunity only to governmental entities; consequently, it is a governmental immunity statute and is subject to the waiver of immunity provision of subsection (b). Ekarika v. City of East Point, 204 Ga. App. 731, 420 S.E.2d 391 (1992).
In an arrestee's 42 U.S.C. § 1983 suit against a lead pursuit deputy and the supervisor for using excessive force to stop the arrestee's car during a high-speed chase, the county was not entitled to sovereign immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX(d) from liability for negligence because the county waived the county's immunity pursuant to O.C.G.A. § 33-24-51(b) by purchasing liability insurance coverage to cover the negligence of county employees arising from the use of a motor vehicle. Harris v. Coweta County, F. Supp. 2d (N.D. Ga. Sept. 25, 2003).
County's participation in an interlocal risk management plan.
- Even though the 1991 amendment of Ga. Const. 1983, Art. I, Sec. II, Para. IX, eliminated the language under which O.C.G.A. § 36-85-20 was found unconstitutionally void, the revision did not resurrect the statute and, accordingly, the statute provided no basis for finding a county's participation in an interlocal risk management plan was not a waiver of sovereign immunity; the county's purchase of such insurance agreement constituted the purchase of insurance under subsection (b) of O.C.G.A. § 33-24-51 and the county waived the county's sovereign immunity to the extent of such coverage. Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994).
Purchase of insurance did not waive sovereign immunity.
- Because there was no evidence that the county waived the county's immunity by the purchase of insurance, an action against the county based on the negligence of paramedics in failing to diagnose plaintiff's pregnancy complications and in failing to transfer the plaintiff to the hospital in a timely manner was barred by sovereign immunity. Schulze v. DeKalb County, 230 Ga. App. 305, 496 S.E.2d 273 (1998).
O.C.G.A. § 33-24-51 did not apply in an action against a county for injuries arising from an auto accident because there was no allegations that the car was owned by the county nor that the car was operated by an authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties. Butler v. Dawson County, 238 Ga. App. 808, 518 S.E.2d 430 (1999).
Waiver of sovereign immunity limited by terms of policy.
- When insurance coverage is obtained by a government entity, the government entity waives the government's sovereign immunity to the extent of such insurance coverage, however, when the plain terms of the policy provide that there is no coverage for the particular claim, the policy does not create a waiver of sovereign immunity as to that claim. Dugger v. Sprouse, 257 Ga. 778, 364 S.E.2d 275 (1988).
In a negligence action against a city by plaintiffs injured in a collision with an on-duty police officer, the city's purchase of a general liability insurance policy covering claims in excess of $250,000 waived the city's sovereign immunity to the limits of the policy; since the city did not have a self-insurance plan, participate in any sort of insurance fund or pool, or set aside funds for the payment of liability claims, the plaintiffs could recover only damages exceeding the $250,000 threshold. McLemore v. City Council, 212 Ga. 862, 443 S.E.2d 505 (1994).
Motor vehicle.
- When a local entity purchases automobile liability insurance in an amount greater than the prescribed limits set forth for a waiver of sovereign immunity under O.C.G.A. § 36-92-1 et seq., the entity waives sovereign immunity to the extent of the entity's insurance coverage as required by O.C.G.A. § 33-24-51(b), and the broad definition of "any motor vehicle" set forth in § 33-24-51 applies. Therefore, in a wrongful death and survivor case, a county waived sovereign immunity to the extent of the county's insurance coverage as required by § 33-24-51(b), and the Georgia legislature did not intend to apply a narrow definition of motor vehicle under § 36-92-1 in a case involving an injury caused by a bush hog and a tractor. Gates v. Glass, 291 Ga. 350, 729 S.E.2d 361 (2012).
Injured driver could establish extent of damages caused by collission with county vehicle.
- Driver's employer's uninsured motorist (UM) coverage was available to the driver because the policy promised to pay sums the driver was "legally entitled to recover" from a UM, even though the driver had collided with a county vehicle and the county's partial sovereign immunity prevented the driver from establishing in a lawsuit that the driver was legally entitled to recover the full amount of the driver's damages from the county. FCCI Ins. Co. v. McLendon Enters., 297 Ga. 136, 772 S.E.2d 651 (2015).
Immunity waived to extent of liability insurance.
- In a personal injury action arising from an accident involving a school bus, the school district waived sovereign immunity to the extent the district was covered by liability insurance. Coffee County Sch. Dist. v. King, 229 Ga. App. 143, 493 S.E.2d 563 (1997).
In a tort action for personal injuries and property damage arising from an auto collision filed against a city and the city's police officer, the trial court erred in granting a city summary judgment as: (1) O.C.G.A. § 40-6-6(d)(2) did not apply; and (2) the city waived the city's sovereign immunity to the extent that the city purchased liability coverage to cover the officer's actions in operating that officer's police car. But, the trial court properly granted summary judgment to the officer, given that the officer was engaged in a discretionary function of responding to an emergency situation at the time the accident at issue occurred. Weaver v. City of Statesboro, 288 Ga. App. 32, 653 S.E.2d 765 (2007), cert. denied, No. S08C0421, 2008 Ga. LEXIS 221 (Ga. 2008).
Immunity waived by purchase of insurance.
- County was not entitled to sovereign immunity in an estate's claim arising from the death of an inmate because the county bought the type of insurance defined in O.C.G.A. § 33-24-51; the estate claimed that the inmate's death resulted from an officer's negligent supervision of the inmate's actions in maintaining a tractor by trying to replace a tire. The policy covered negligence for autos, the tractor was an auto under the statute and the policy, and the policy covered maintenance of a covered auto, which included changing a tire. McDuffie v. Coweta County, 299 Ga. App. 500, 682 S.E.2d 609 (2009).
School district waived immunity to extent of insurance covering school bus accident.
- In a parent's action against a school district for the death of the parent's child as the child tried to board a school bus, although the district had sovereign immunity, the district waived sovereign immunity to the extent of the district's purchase of liability insurance pursuant to O.C.G.A. § 33-24-51(b); the exclusion from the waiver of sovereign immunity for school districts in O.C.G.A. § 36-92-2(a) did not extend to the second sentence of § 33-24-51(b). Tift County Sch. Dist. v. Martinez, 331 Ga. App. 423, 771 S.E.2d 117 (2015), cert. denied, No. S15C1084, 2015 Ga. LEXIS 458 (Ga. 2015).
Limited waiver.
- County's sovereign immunity is waived only when the county's insurer satisfies a claim under the coverage provided. Saylor v. Troup County, 225 Ga. App. 489, 484 S.E.2d 298 (1997).
O.C.G.A. § 33-24-51(b) provides that the government waives immunity to the extent the government purchases liability insurance for the government's employees' negligent use of a motor vehicle. Smith v. Chatham County, 264 Ga. App. 566, 591 S.E.2d 388 (2003).
Limited waiver of sovereign immunity set forth in O.C.G.A. § 33-24-51(b) does not implicate the 12-month presentation requirement under O.C.G.A. § 36-11-1. Warnell v. Unified Gov't of Athens-Clarke County, 328 Ga. App. 903, 763 S.E.2d 284 (2014).
Immunity in the absence of insurance.
- When a sheriff's deputy caused a collision with another vehicle when the deputy failed to use blue lights or a siren when responding to an emergency call, the deputy was entitled to immunity in the absence of insurance purchased by the county which would protect the deputy. Logue v. Wright, 260 Ga. 206, 392 S.E.2d 235 (1990).
Payment of claims arising out of negligent performance of governmental function illegal unless pursuant to statute.
- Payment by municipality of claims arising by reason of the negligent performance of a governmental function, except pursuant to this section or pursuant to one of the Acts permitting a municipality to become a self-insurer, is an illegal and ultra vires act barred under the doctrine of governmental immunity. Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972).
County school district's governmental immunity was waived only to extent of insurance coverage, which applied only to amounts in excess of $100,000; thus, the district was liable only for damages greater than $100,000 but less than the policy's upper limit. DeKalb County Sch. Dist. v. Bowden, 177 Ga. App. 296, 339 S.E.2d 356 (1985).
County's purchase of a general liability insurance policy for purposes of the waiver of sovereign immunity was authorized by O.C.G.A. § 33-24-51 and an accident involving the operation of a back hoe owned by the county was covered by the policy. Crider v. Zurich Ins. Co., 222 Ga. App. 177, 474 S.E.2d 89 (1996).
Georgia Mental Health Institute did not waive immunity to extent of insurance coverage.
- When decedent was riding as a passenger in an automobile owned by Georgia Mental Health Institute (GMHI) and driven by the GMHI's employee, and GMHI had insurance on the automobile, GMHI did not thereby waive governmental immunity to the extent of that insurance. Hicks v. Shea, 149 Ga. App. 396, 254 S.E.2d 511 (1979).
Plaintiff must allege waiver of governmental immunity.
- To show the plaintiff's right to relief against the county, it was necessary that the plaintiff allege waiver of governmental immunity in accordance with this section. Dowling v. Camden County, 113 Ga. App. 34, 146 S.E.2d 925, cert. dismissed, 222 Ga. 122, 149 S.E.2d 103 (1966).
Effect of plaintiff's allegation of waiver of governmental immunity.
- Complaint stating that sovereign immunity was waived to the extent of the defendant's purchase of liability insurance for injuries arising out of the use of a school bus was sufficient to put the onus on the defendant to submit an affidavit denying the existence of a motor vehicle liability policy. Maxwell v. Cronan, 241 Ga. App. 491, 527 S.E.2d 1 (1999).
Petition alleging purchase of liability insurance and injury from operation of vehicle sufficient.
- When plaintiff's petition alleges the purchase of liability insurance as contemplated and described in this section, and further alleges bodily injury as the result of the negligence of the defendant county's servants in the operation and use of the defendant's motor vehicles, a cause of action is set out. Strickland v. Wayne County, 113 Ga. App. 499, 148 S.E.2d 467 (1966).
Trial court can require evidence of insurance purchased by county in order to mold the court's judgment to conform to this section. Dowling v. Camden County, 113 Ga. App. 34, 146 S.E.2d 925, cert. dismissed, 222 Ga. 122, 149 S.E.2d 103 (1966).
Resolution of existence of legal liability for courts only.
- When parties disagree as to whether legal liability exists in a given situation, the place for the resolution of that question is in courts of justice; the determination of such a question is not the function of a legislative body. Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972).
No conflict between statute of limitations and provisions concerning waiver of immunity.
- There is no conflict between the statute of limitations applicable to insurance actions against municipalities and the constitutional and statutory provisions relating to waiver of immunity. Cobb v. Board of Comm'rs of Rds. & Revenue, 151 Ga. App. 472, 260 S.E.2d 496 (1979).
Post-trial hearing required to determine amount of insurance carried by city.
- Since at a hearing conducted immediately after trial the city did not produce evidence of insurance and of policy limits, a rehearing, held specifically for the purpose of determining the amount of insurance carried by the city, must be conducted, unless an employee of defendant-city chooses not to contest the policy limits asserted by the city, in order to determine if the defendant-city maintained liability insurance authorized by this section in any greater or lesser amount than the judgment rendered, and to remold the judgment in accordance with this section. City of Waycross v. Beaty, 157 Ga. App. 765, 278 S.E.2d 697 (1981).
Waiver does not depend upon whether the county is named as a defendant.
- Waiver of sovereign immunity, pursuant to O.C.G.A. § 33-24-51, does not depend upon whether a county is named as a defendant. Rather, suits against public employees in the employees' official capacities are in reality suits against the state and involve sovereign immunity. Standard v. Hobbs, 263 Ga. App. 873, 589 S.E.2d 634 (2003).
Summary judgment based on sovereign immunity improper.
- Trial court erred in granting a police officer and a city summary judgment on the ground that the officer was performing a discretionary duty and the city was protected by sovereign immunity, in an arrestee's action to recover damages for injuries sustained when the officer ran over the arrestee's foot with a patrol car during the arrest. A jury would be authorized to find that the officer did not act intentionally, but rather, negligently came too close to the arrestee with the car for the purposes that the officer was trying to achieve and used poor judgment under the circumstances; there was an issue of fact on whether the arrestee assumed the risk of injury because it was not beyond dispute that the arrestee was aware of the actual risk of being hit by the officer or that the arrestee had subjective knowledge that the arrestee was at risk of being hit from behind by a police car being driven by a trained officer when the arrestee had not threatened the officer with deadly force. Davis v. Batchelor, 300 Ga. App. 662, 686 S.E.2d 314 (2009).
Applicability
Former Code 1933, § 56-2437 (see O.C.G.A. § 33-24-51) did not affect the operation of former Code 1933, § 69-308 (see O.C.G.A. § 36-33-5). Perdue v. City Council, 137 Ga. App. 702, 225 S.E.2d 62 (1976).
Negligence must arise from "use" of vehicle.
- Non-use of a motor vehicle is not encompassed within the meaning of subsection (a) of O.C.G.A. § 33-24-51; thus, a county road superintendent's failure to drive to the scene of a fallen tree to place warnings was not a negligent use of a vehicle. Lincoln County v. Edmond, 231 Ga. App. 871, 501 S.E.2d 38 (1998).
Immunity from liability for a claim of negligence against a paramedic and a county as the paramedic's employer was not waived by the county's purchase of insurance since the action was based on the paramedic's misdiagnosis or choice of treatment and did not "arise from the use of a motor vehicle." Harry v. Glynn County, 269 Ga. 503, 501 S.E.2d 196 (1998).
It was error for the trial court to grant summary judgment to the defendant school board on grounds that sovereign immunity was not waived because a government official was not personally operating the vehicle at the time of the accident, when there was an issue of fact with regard to a teacher's use of the car in connection with the teaching of an automotive shop class. Chamlee v. Henry County Bd. of Educ., 239 Ga. App. 183, 521 S.E.2d 78 (1999).
Use of school bus not shown.
- When a child was killed when the child ran into the road at a school bus stop before the bus arrived and was struck by a truck, the bus was too remote from the site of the accident as a matter of law for the accident to be considered as arising out of the use of the bus. Brock v. Sumter County Sch. Bd., 246 Ga. App. 815, 542 S.E.2d 547 (2000).
Use of a motor vehicle for rape.
- In an action against a city's mayor and police chief alleging that a city police officer raped the plaintiff because the cause of action did not arise out of the use of a motor vehicle, the city's purchase of liability insurance did not waive the immunity of the officials. Carter v. Glenn, 249 Ga. App. 414, 548 S.E.2d 110 (2001).
Sovereign immunity barred the inmate's claims against the government because the injuries the inmate sustained while welding a garbage truck belonging to the government did not arise from the negligent use of a motor vehicle and the waiver of sovereign immunity was limited to those claims arising out of the negligent use of a covered motor vehicle as a vehicle. Columbus Consol. Gov't v. Woody, 342 Ga. App. 233, 802 S.E.2d 717 (2017).
After the plaintiffs were injured when a speeding car driven by a suspect who was fleeing law enforcement crashed into the plaintiffs' car, the trial court properly granted summary judgment to the Lamar Sheriff as the plaintiffs' claims against the Lamar Sheriff were barred as a matter of law by sovereign immunity because, by the time the plaintiffs were injured by the fleeing driver, the Lamar deputy's patrol car was immobile and inoperative on the side of the road approximately 20 miles away as the result of a blown tire; thus, the plaintiffs' injuries did not arise out of the "use" of the patrol car, and the sovereign immunity of the Lamar Sheriff was not waived. Wingler v. White, 344 Ga. App. 94, 808 S.E.2d 901 (2017), cert. denied, No. S18C0651, 2018 Ga. LEXIS 467, cert. denied, No. S18C0649, 2018 Ga. LEXIS 522 (Ga. 2018).
Negligence must arise from "ownership, maintenance, operation, or use" of vehicle.
- County did not waive the county's sovereign immunity under O.C.G.A. § 33-24-51(a) after the decedent's vehicle was struck by a county emergency rescue driver who was allegedly in violation of the county safe driving policy because if the county's safe driving policy was violated, it did not arise by reason of ownership, maintenance, operation, or use of any vehicle, but rather by the county's failure to enforce the county's safe driving policy. Anderson v. Barrow County, 256 Ga. App. 160, 568 S.E.2d 68 (2002).
Trial court properly granted summary judgment to the county as the evidence did not show that the county waived the sovereign immunity the county had pursuant to the Georgia Constitution; the decedent's spouse's argument that the fire vehicle which arrived at a lake where a canoe had capsized should have been equipped with a rope long enough to rescue the decedent, who swam into the lake to see if the decedent could rescue a fisherman who had been in the canoe, had to be rejected since the county waived sovereign immunity for inadequate maintenance of a motor vehicle under O.C.G.A. § 33-24-51(a), but the failure to have a rope long enough or other sufficient rescue equipment had nothing to do with the maintenance of the vehicle, and, hence, the death of the decedent did not arise by reason of the inadequate maintenance of a vehicle. Robinson v. DeKalb County, 261 Ga. App. 163, 582 S.E.2d 156 (2003).
County sued by a motorcyclist who was injured on a closed road did not waive sovereign immunity under O.C.G.A. § 33-24-51. The claim did not arise from the use of an excavator that was parked on the road as the excavator was not involved in the accident, was not under the control of the county, but by the contractor that owned and insured the excavator, and was not being operated by any agent or employee of the county. Williams v. Whitfield County, 289 Ga. App. 301, 656 S.E.2d 584 (2008).
Use of vehicle too remote in time.
- County's use of a pot-patcher vehicle the day before an accident was too remote in time to constitute "use" of the vehicle sufficient to waive sovereign immunity pursuant to O.C.G.A. § 33-24-51. Bd. of Comm'rs v. Barefoot, 313 Ga. App. 406, 721 S.E.2d 612 (2011).
Landfill compactor is not a "motor vehicle" as that term is defined in O.C.G.A. § 33-34-2. Pate v. Turner County, 162 Ga. App. 463, 291 S.E.2d 400 (1982).
Department of Transportation, as state agency, does not come within ambit of subsection (b) of O.C.G.A § 33-24-51, which provides for waiver of governmental immunity to the extent of the amount of motor vehicle liability insurance purchased by "a municipal corporation, a county or any other political subdivision of this state . . .." Huggins v. Georgia Dept. of Transp., 165 Ga. App. 178, 300 S.E.2d 195 (1983).
Portable tar kettle machine.
- In a worker's suit alleging negligence on the part of a county with regard to the county allegedly failing to properly instruct and supervise the worker in the use of a portable tar kettle machine, the trial court erred by granting the county's motion for a judgment on the pleadings based on sovereign immunity as the worker sufficiently alleged that the machine was a vehicle as contemplated by O.C.G.A. § 33-24-51, which established a waiver of sovereign immunity if the county had purchased liability insurance to cover damages and injuries arising from the use of motor vehicles under the county's management. Hewell v. Walton County, 292 Ga. App. 510, 664 S.E.2d 875 (2008).
Policy inapplicable to ministerial acts of deputy sheriffs.
- Liability insurance policy purchased by county did not provide protection to deputy sheriffs from a suit based on the deputies' alleged negligent acts while in the commission of the deputies' ministerial duties. Keener v. Kimble, 170 Ga. App. 674, 317 S.E.2d 900 (1984).
Claim against sheriff's deputy barred.
- Trial court erred in denying the defendants' motion to dismiss the deputy on the ground that the plaintiff's tort claim was barred by O.C.G.A. § 36-92-3(a) because the deputy was not a governmental entity; rather, the deputy was an employee of the county sheriff's department, was on duty, and was driving a county-owned patrol vehicle when the accident that injured the plaintiff occurred; thus, the deputy was not subject to liability for the accident and the claims against the deputy were barred. Moats v. Mendez, 349 Ga. App. 811, 824 S.E.2d 808 (2019).
Injury excluded from policy beyond waiver of governmental immunity.
- When the plaintiff was injured on a prisoner work detail at a county work camp to load a quantity of pipe onto a flatbed truck, when, as the plaintiff was reaching to attach a chain connected to one of the pipes to the bucket of a front-end loader, the front-end loader struck the pipe, which in turn struck and injured the plaintiff, but the county's policy on the truck, as limited by an exclusion, extended liability coverage to injuries sustained during loading or unloading of the truck, but only when the loading or unloading was not being accomplished by means of a mechanical device, the plaintiff was either injured while the covered truck was being loaded by means of a mechanical device or before loading had begun, and the plaintiff's injury was excluded from coverage under the policy and thus was beyond the defendant's waiver of governmental immunity. Cobb County v. Hunt, 166 Ga. App. 409, 304 S.E.2d 403 (1983).
Even if insurance has been purchased by a municipality, should the occurrence giving rise to the suit against the municipality be within an exclusion from the coverage afforded by the policy, governmental immunity remains a viable defense. Mitchell v. Hartford Accident & Indem. Co., 168 Ga. App. 126, 308 S.E.2d 374 (1983).
No waiver of immunity regarding negligence unconnected with motor vehicles.
- Procurement of insurance does not constitute a waiver of sovereign immunity in regard to damages caused by the county's negligence not connected with motor vehicles. Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445 (1975).
Truck stolen by escaped prisoner not waiver.
- Waiver provision of subsection (b) of O.C.G.A. § 33-24-51 did not apply to an action against county officials arising from injuries to plaintiffs in a collision with a truck stolen by an escaped prison inmate. Long v. Hall County Bd. of Comm'rs, 219 Ga. App. 853, 467 S.E.2d 186 (1996).
In an action arising out of an arrest, despite the way the arrestee was treated, the trial court properly dismissed a complaint against a county, and granted summary judgment on the same complaint against a city, on sovereign immunity grounds because the arrestee failed to show that the immunity had been waived. Scott v. City of Valdosta, 280 Ga. App. 481, 634 S.E.2d 472 (2006).
Trial court erred in denying a city and the city's police officers summary judgment as to an arrestee's claims against the city and the officers in the officers official capacities because the claim against one of the officers in the officer's official capacity was, in reality, a suit against a governmental entity and subject to a claim of sovereign immunity, and no genuine issue of fact remained as to whether the city waived the city's sovereign immunity pursuant to O.C.G.A. § 33-24-51; the alleged negligence was unrelated to the use of a motor vehicle. Campbell v. Goode, 304 Ga. App. 47, 695 S.E.2d 44 (2010).
Trial court erred in denying a motion for summary judgment filed by a county and a paramedic with the county emergency medical services in a patient's spouse's action alleging that the paramedic acted negligently in the paramedic's assessment of the patient because the county and paramedic were shielded from liability by sovereign and official immunity, and there was no waiver of sovereign immunity under the motor vehicle exception found in O.C.G.A. § 33-24-51 since the liability of the county and paramedic was not predicated on their alleged negligent use of an ambulance as a motor vehicle; there was no evidence that the ambulance and the ambulance's use played any part in the paramedic's diagnosis of or choice of treatment for the patient, and thus, the county ambulance was, at best, tangentially related to the paramedic's failure to use a cardiac monitor on the patient. Polk County v. Ellington, 306 Ga. App. 193, 702 S.E.2d 17 (2010).
Sovereign immunity barred the claimants' personal injury and nuisance claims against the members of a county board of commissioners in the commissioners' official capacities because the claimants did not show that the county waived the county's sovereign immunity with regard to the county's operation of a mosquito control helicopter which sprayed one of the claimants with chemicals. Further, the county did not waive the county's sovereign immunity under O.C.G.A. § 33-24-51 by purchasing a liability insurance policy covering the helicopter because the helicopter was not a "motor vehicle" as that term was understood in the statute. Bd. of Comm'rs v. Johnson, 311 Ga. App. 867, 717 S.E.2d 272 (2011).
County's participation in an interlocal risk management plan did not constitute liability insurance for the purpose of waiving the county's sovereign immunity to the extent of the plan's coverage. Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994).
County's "risk management fund" for the investigation and defense of tort claims was a self-insurance plan constituting liability insurance which waived sovereign immunity within the ambit of O.C.G.A. § 33-24-51 and the former provisions of Ga. Const. 1983, Art. I, Sec. II, Par. IX. Mims v. Clanton, 222 Ga. App. 657, 475 S.E.2d 662 (1996).
"Such insurance" defined.
- While this section is a conditional limitation on the doctrine of sovereign immunity, the meaning of "such insurance " as used therein is governed by the preceding language referring to "insurance to cover liability . . . arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation " and cannot be construed to mean liability insurance generally so that procurement of general liability insurance would create a waiver of sovereign immunity with respect to activities beyond the scope of the activities specifically mentioned in this section. Winston v. City of Austell, 123 Ga. App. 183, 179 S.E.2d 665 (1971).
Self insurance plans.
- Trial court properly entered summary judgment for a county as to two injured parties' tort claims as the county's self-insurance plan for certain claims did not constitute a waiver of the county's sovereign immunity because the county did not purchase a motor vehicle liability insurance policy - a requirement under O.C.G.A. § 33-24-51(b); there is no statute which provides that by establishing a self-insurance plan, a county waives sovereign immunity. Smith v. Chatham County, 264 Ga. App. 566, 591 S.E.2d 388 (2003).
Action may be brought only against political subdivision.
- Nothing in this section authorizes bringing an action on account of the negligence of an employee of any political subdivision against anyone other than the political subdivision itself. Ray v. Cobb County Bd. of Educ., 110 Ga. App. 258, 138 S.E.2d 392 (1964).
School district of each county is one of the "other political subdivision(s)" referred to in this section which may be sued in any case coming within the terms of this section. Ray v. Cobb County Bd. of Educ., 110 Ga. App. 258, 138 S.E.2d 392 (1964).
County board of education is not a political subdivision and not a body corporate liable to action in the ordinary sense (except in cases made so by an Act of the Legislature), and the board of education of a particular county through the board's members merely has the control and management of that county's school district. Ray v. Cobb County Bd. of Educ., 110 Ga. App. 258, 138 S.E.2d 392 (1964).
County sheriff and deputy.
- In a wrongful death suit brought after a patrol car driven by a deputy sheriff struck and killed the decedent, the sheriff and the deputy were not entitled to summary judgment on the claims against them in their official capacity; under O.C.G.A. § 33-24-51, the sheriff and deputy could be held liable to the extent that the county waived the county's sovereign immunity by the purchase of automobile liability insurance. Nichols v. Prather, 286 Ga. App. 889, 650 S.E.2d 380 (2007), cert. denied, S07C1873, 2007 Ga. LEXIS 766 (Ga. 2007).
In a parent's wrongful death action, the trial court did not err by granting summary judgment to a county sheriff and a county deputy sheriff on the basis of sovereign immunity because, at the time of the son's suicide, the deputy's vehicle was essentially being used as a holding cell and did not relate to the use of the patrol car as a vehicle pursuant to O.C.G.A. § 33-24-51. Gish v. Thomas, 302 Ga. App. 854, 691 S.E.2d 900 (2010).
Extent of coverage of liability insurance for school bus.
- The insurer which provided liability insurance for a school bus was legally obligated to provide coverage for a child who was struck by another motor vehicle while crossing a road after disembarking from the school bus; thus, the interpretation given to "use" of a school bus as included in the insurance policy included responsibility to children until they have safely crossed a road after disembarking from the bus. Georgia Farm Bureau Mut. Ins. Co. v. Greene, 174 Ga. App. 120, 329 S.E.2d 204 (1985).
Whether a child was acting pursuant to prior crossing instructions from a school bus driver or was not acting reasonably within the purview of those orders, in determining whether the child's actions were a part of the process of loading the bus so as to come within the coverage of a liability policy, was a question of fact precluding summary judgment. Cawthon v. Waco Fire & Cas. Ins. Co., 183 Ga. App. 238, 358 S.E.2d 615, cert. denied, 183 Ga. 905, 358 S.E.2d 615 (1987).
When the county purchased liability insurance to provide coverage for bodily injury or death caused by an accident resulting from the ownership, maintenance, or use of a covered automobile, and the incident arose from the "use" of a school bus, the county was not immune from liability in the death of a child. DeKalb County Sch. Dist. v. Allen, 254 Ga. App. 66, 561 S.E.2d 202 (2002).
County may be liable for negligence of convict while maintaining county roads.
- When governmental immunity is not present, no reason exists why a county may not be liable for the negligence of a convict who is engaged in the performance of a duty of a county, the maintenance of the roads of the county, and at the direction, with the knowledge and consent, and under the express authorization of the county. Hall County v. Loggins, 110 Ga. App. 432, 138 S.E.2d 699 (1964).
Worker's suit against a county brought after the worker stepped into an open manhole was barred by sovereign immunity. O.C.G.A. § 33-24-51(a) did not apply as no evidence supported the worker's allegation that a county employee mowing in the area with a tractor had knocked the manhole cover off or had a duty to inspect and report a missing cover. Dunn v. Telfair County, 288 Ga. App. 200, 653 S.E.2d 537 (2007).
Intentional conduct of officer in beating arrestee.
- Arrestee's state law claims against a county for false imprisonment, kidnapping, and aggravated assault in connection with a police officer's transporting of the arrestee to a wooded area and subsequent beating and stabbing of the arrestee were barred under the doctrine of sovereign immunity, and the waiver of immunity in O.C.G.A. § 33-24-51(b) did not apply because although the officer used an insured patrol car to transport the arrestee, the officer's acts were intentional, not negligent. Williams v. DeKalb County, 327 Fed. Appx. 156 (11th Cir. 2009)(Unpublished).
Known hazard in road.
- Trial court erred in denying a county's motion for summary judgment in a driver's action alleging that the county was negligent for failing to maintain and repair a roadway and/or failing to warn of a known hazard because there was no evidence that the county waived the county's sovereign immunity under O.C.G.A. § 36-92-2, and there was no evidence that a county vehicle caused the hole in the roadway; the plaintiff, not the defendants, has the burden of establishing that a county waived sovereign immunity by purchasing liability insurance protection covering the plaintiff's claim. Effingham County v. Rhodes, 307 Ga. App. 504, 705 S.E.2d 856 (2010).
OPINIONS OF THE ATTORNEY GENERAL
County board of education may legally expend school funds for insurance coverage.
- If a county board of education, as a political subdivision of the state, operates a public library, the board could legally expend public school funds for the purchase of a tag for the board's book-mobile; the same would be true as to the expense of insurance coverage. 1958-59 Op. Att'y Gen. p. 131. But see Ray v. Cobb County Bd. of Educ., 110 Ga. App. 258, 138 S.E.2d 392 (1964).
Waiver of sovereign immunity by Board of Regents.- Judiciary of this state would find that the powers delegated to the Board of Regents do not include by clear implication the power to waive sovereign immunity by the contractual assumption of tort liability. 1965-66 Op. Att'y Gen. No. 66-261.
Hold harmless clause executed by the Board of Regents would be invalid and ultra vires. 1965-66 Op. Att'y Gen. No. 66-261.
Board of Regents may legally execute a hold harmless agreement, although the better practice would be to specifically exclude it where possible; if and when the clause is not excluded, the lessor should be notified that the Board of Regents does not consider such a clause binding upon the Board under Georgia law. 1965-66 Op. Att'y Gen. No. 66-261.
County is not liable for the negligent acts of the county's servants. 1969 Op. Att'y Gen. No. 69-131.
If county has purchased liability insurance, then the county is liable as provided to extent of this insurance coverage. 1969 Op. Att'y Gen. No. 69-131.
RESEARCH REFERENCESNegligent Vehicular Police Chase, 41 POF2d 79.
ALR.
- Liability of municipality for tort in construction or operation of municipally owned railroad or street railway, 31 A.L.R. 1306.
Power of municipal corporation to take out liability insurance, 33 A.L.R. 717.
Liability of street railway company for injury to person in "safety zone,", 41 A.L.R. 376.
Liability of county for torts in connection with activities which pertain, or are claimed to pertain, to private or proprietary functions, 101 A.L.R. 1166; 16 A.L.R.2d 1079.
Construction and application of statute making municipal corporation liable for damages due to negligence of official or employee while operating vehicle, 136 A.L.R. 582.
Operation of garage for maintenance and repair of municipal vehicles as governmental function, 26 A.L.R.2d 944.
Application of financial responsibility or compulsory insurance laws to governmental vehicles or their operators, 87 A.L.R.2d 1224.
Validity and construction of statute authorizing or requiring governmental unit to procure liability insurance covering public officers or employees for liability arising out of performance of public duties, 71 A.L.R.3d 6.
Who is "named insured" within meaning of automobile insurance coverage, 91 A.L.R.3d 1280.
Liability of governmental unit or its officers for injury to innocent pedestrian or occupant of parked vehicle, or for damage to such vehicle, as result of police chase, 100 A.L.R.3d 815.
Tort liability of public schools and institutions of higher learning for accident involving motor vehicle operated by student, 85 A.L.R.5th 301.