A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.
(Civil Code 1895, § 744; Civil Code 1910, § 893; Code 1933, § 69-307.)
Cross references.- Liability of officers, agents, and others of counties, municipalities, for acts performed while fighting fires or performing duties at scene of emergencies, § 51-1-30.
Law reviews.- For article, "Personal Liability of State Officials Under State and Federal Law," see 9 Ga. L. Rev. 821 (1975). For article discussing origin and construction of Georgia statute concerning municipal liability for conduct of its officers, see 14 Ga. L. Rev. 239 (1980). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007) and 60 Mercer L. Rev. 263 (2008).
JUDICIAL DECISIONS
Rule of nonliability generally.
- Municipal corporation is not liable for the negligence of the municipality's officers and employees when acting in a governmental function. Banks v. City of Albany, 83 Ga. App. 640, 64 S.E.2d 93 (1951); Bagwell v. City of Gainesville, 106 Ga. App. 367, 126 S.E.2d 906 (1962).
No distinction between negligent and intentional torts.
- Former Code 1933, §§ 69-301 and 69-307 (see now O.C.G.A. §§ 36-33-1 and36-33-3) did not suggest any intention to distinguish between torts of nonfeasance or misfeasance committed by negligence, and other torts committed corruptly, maliciously, willfully, or wantonly. Brown v. City of Union Point, 52 Ga. App. 212, 183 S.E. 78 (1935).
When liability arises.- Municipalities are liable for the acts of a municipalities' officers, agents, and servants only in instances as follows: (a) in the performance of any function when a statute specifically provides for such liability; (b) for neglect to perform or improper or unskillful performance of the municipalities' ministerial duties; and (c) for the performance of the municipalities' governmental functions when the same amounts to the taking or damaging of private property for public purposes without first making adequate compensation therefor, or the creation of a nuisance dangerous to the life and health of persons because of its proximity to the people in the enjoyment of the people's property. Greenway v. Thompson, 368 F. Supp. 387 (N.D. Ga. 1973).
This rule cannot be avoided or circumvented by allegations in the nature of conclusions seeking to assert as the basis for municipal liability the act of its placing the active tortfeasor in the position to commit the tort, nor by alleging that in employing the tortfeasor and retaining the tortfeasor on the payroll the municipality was guilty of maintaining a nuisance when the facts otherwise alleged affirmatively show that the real asserted basis of liability is on the theory of respondeat superior. City of Cumming v. Chastain, 97 Ga. App. 13, 102 S.E.2d 97 (1958).
Applicability of waiver of immunity provisions.
- O.C.G.A. § 36-33-3 provides immunity only to governmental entities; consequently, it is a governmental immunity statute and is subject to the waiver of immunity provision of O.C.G.A. § 33-24-51(b). Ekarika v. City of East Point, 204 Ga. App. 731, 420 S.E.2d 391 (1992).
Municipality can waive governmental immunity.
- 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, plaintiffs could recover only damages exceeding the $250,000 threshold. McLemore v. City Council, 212 Ga. 862, 443 S.E.2d 505 (1994).
In the absence of waiver of the immunity afforded by O.C.G.A. § 36-33-3, there can be no municipal liability for a claim based on allegedly reckless conduct by police. Williams v. Solomon, 242 Ga. App. 807, 531 S.E.2d 734 (2000).
Notice of powers implied.
- In dealing with public agents, every person must take notice of the extent of their power at the person's peril. Laing v. Mayor of Americus, 86 Ga. 756, 13 S.E. 107 (1891).
City cannot ratify.
- Municipality cannot ratify the unlawful acts of the municipality's subordinate officials done in the pursuance of the municipality's governmental functions. Davis v. City of Rome, 23 Ga. App. 188, 98 S.E. 231 (1919).
Federal civil rights actions.
- Supremacy clause of U.S. Const. prevents state court from construing federal rule to permit state immunity defense to claim made under 42 U.S.C. § 1983, the Civil Rights Act of 1871. Davis v. City of Roswell, 250 Ga. 8, 295 S.E.2d 317 (1982), cert. denied, 475 U.S. 1122, 106 S. Ct. 1640, 90 L. Ed. 2d 185 (1986).
When a governing body has worked constitutional deprivation of a citizen pursuant to an impermissible or corrupt policy which is intentional and deliberate, a cause of action is accrued under the federal Civil Rights Act in spite of the doctrine of sovereign immunity. City of Cave Spring v. Mason, 252 Ga. 3, 310 S.E.2d 892 (1984).
Acts of mayor in setting bond.
- City is not liable in damages because the city's mayor required of a person charged with a violation of a city ordinance, a larger bond for the person's appearance than the law authorized, even if the failure of such person to give bond and the person's consequent confinement were occasioned thereby. Gray v. Mayor of Griffin, 111 Ga. 361, 36 S.E. 792 (1900).
Wrongful refusal of bail.
- City was not liable in damages because mayor, as judge of city's court for the trial of ordinance violations, wrongfully refused to allow bail to an alleged offender and wrongfully directed a police officer to commit the offender to jail, since the offender was imprisoned until released by a habeas corpus proceeding, nor did the appearance of the mayor or an attorney for the municipality in resistance of the habeas corpus constitute a ratification by the municipality of these alleged illegal acts by the municipality's officers, so as to render the municipality liable therefore. Brown v. City of Union Point, 52 Ga. App. 212, 183 S.E. 78 (1935).
Failure to provide police protection.
- When a failure to provide police protection is alleged, there can only be no liability based on a municipality's duty to protect the general public. However, when there is a special relationship between the individual and the municipality which sets the individual apart from the general public and engenders a special duty owed to that individual, the municipality may be subject to liability for the nonfeasance of the municipality's police department. Benning Constr. Co. v. Dykes Paving & Constr. Co., Inc., 263 Ga. 16, 426 S.E.2d 564 (1993).
Acts of police officers.
- When a police officer was acting as an officer of the city at the time of a homicide, the city would not be liable for the reason that the police officer was in the discharge of a governmental function, and in such case recovery cannot be had against the city. Pounds v. Central of Ga. Ry., 142 Ga. 415, 83 S.E. 96 (1914).
Doctrine of governmental immunity protected the city from liability for the actions of the city's employees, including the police officer who arrested the individual for criminal trespass in the discharge of the officer's lawful duties, and, thus, the city was protected by that immunity from the arrested individual's claims against the city. Reese v. City of Atlanta, 261 Ga. App. 761, 583 S.E.2d 584 (2003).
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).
In an arrestee's state law claims, a city was not liable for actions of the city's police officers because the officers engaged in protected ministerial functions. Lavassani v. City of Canton, 760 F. Supp. 2d 1346 (N.D. Ga. 2010).
Knowingly maintaining violent police officer.- It is unclear whether municipal immunity continues to encompass a nuisance claim against a city for knowingly maintaining a violent police officer. Brooks v. Scheib, 813 F.2d 1191 (11th Cir. 1987).
Municipal corporation is not liable for illegal arrest of a person by the municipal corporation's police officers. Cook v. Mayor of Macon, 54 Ga. 468 (1875); Gray v. Mayor of Griffin, 111 Ga. 361, 36 S.E. 792 (1900).
Drunken driving arrest.
- Town marshal, in arresting and placing in town lockup a person for drunken driving, would be engaged in discharge of duty imposed on the marshal by law. Archer v. City of Austell, 68 Ga. App. 493, 23 S.E.2d 512 (1942).
Collision by police officer.
- Trial court erred in granting the city's motion for judgment on the pleadings since the city could have been vicariously liable to plaintiff for the officer's alleged negligent act of driving the officer's patrol car into plaintiff's vehicle up to the limits of the city's policy of motor vehicle liability. Ekarika v. City of East Point, 204 Ga. App. 731, 420 S.E.2d 391 (1992).
Claim for breach of an implied contract of bailment by a city in taking and holding plaintiff's motorcycle was not barred under the language of O.C.G.A § 36-33-3, which is restricted to tort claims. Harper v. Savannah Police Dep't, 179 Ga. App. 449, 346 S.E.2d 891 (1986).
Negligence of fire fighter.
- Even if cutting a hole and leaving the hole in an exposed condition was negligence on the part of a fire fighter, the city was not liable in damages to a person injured in consequence of the negligence. Rogers v. City of Atlanta, 143 Ga. 153, 84 S.E. 555 (1915).
City not liable for jail conditions.- Because a city was immune from suit in performing the governmental function of maintaining the city jail, it could not be concluded as a matter of law, in a federal civil rights action against the city and the city's police officers, alleging that the physical conditions in the jail deprived the defendant of due process, that "adequate state remedies" existed. Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).
Acts of warden.
- Even though sentence imposed by a recorder might have been wholly void, the city would not be liable for the tortious and illegal acts of a warden. Davis v. City of Rome, 23 Ga. App. 188, 98 S.E. 231 (1919).
Municipal corporation is not liable for injuries sustained by prisoner at hands of another confined in the same cell, notwithstanding police officer may have been guilty of wrong or negligence in confining the prisoner with intoxicated fellow-prisoner who was on that account violent and dangerous. Wilson v. Mayor of Macon, 88 Ga. 455, 14 S.E. 710 (1892).
City not liable for negligence in erecting prison.
- In erecting and maintaining a city prison, a municipal corporation is exercising a purely governmental function, and is, therefore, not liable in damages to a person arrested and imprisoned therein by the municipality's police officers, for injuries sustained by the person, while so confined, by reason of the improper construction or negligent maintenance of such prison. Gray v. Mayor of Griffin, 111 Ga. 361, 36 S.E. 792 (1900).
Nonliability of railway company for wrongful killing by police officer.
- When police officer of municipality, being paid by railway company to keep order at depot, wrongfully kills a passenger, the police officer is said to be a municipal officer, and the railway company is not liable in damages. Pounds v. Central of Ga. Ry., 142 Ga. 415, 83 S.E. 96 (1914).
Pleading failure to state claim sufficient.
- Under notice pleading, an answer pleading a defense of failure to state a claim was minimally sufficient to give notice of substantive immunity defenses under either O.C.G.A. § 31-11-8 or O.C.G.A. § 36-33-3. Ramsey v. City of Forest Park, 204 Ga. App. 98, 418 S.E.2d 432 (1992).
Cited in Maddox v. City of Atlanta, 49 Ga. App. 791, 171 S.E. 573 (1933); Pitts v. City of Macon, 134 Ga. App. 467, 214 S.E.2d 720 (1975); Morin v. City of Valdosta, 140 Ga. App. 361, 231 S.E.2d 133 (1976); Tucker v. Thompson, 421 F. Supp. 297 (M.D. Ga. 1976); City of Atlanta v. Fry, 148 Ga. App. 269, 251 S.E.2d 90 (1978); Sellfors v. United States, 697 F.2d 1362 (11th Cir. 1983); City of Atlanta v. Gilmere, 252 Ga. 406, 314 S.E.2d 204 (1984); Acker v. City of Elberton, 176 Ga. App. 580, 336 S.E.2d 842 (1985), overruled on other grounds by West v. City of Albany, 2017 Ga. LEXIS 177 (Ga. 2017); Poss v. City of North Augusta, 205 Ga. App. 894, 424 S.E.2d 73 (1992); City of Atlanta v. Heard, 252 Ga. App. 179, 555 S.E.2d 849 (2001).
RESEARCH REFERENCES
Am. Jur. 2d.
- 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 201.
Excessive Force by Police Officer, 21 POF3d 685.
C.J.S.- 63 C.J.S., Municipal Corporations, §§ 888, 894, 895, 910.
ALR.
- Liability of municipal corporation for tort of officer or employee of water department, 24 A.L.R. 545; 28 A.L.R. 822; 54 A.L.R. 1497.
Liability of municipality as affected by license issued by municipal officer, 42 A.L.R. 1208.
Policemen as public officers, 84 A.L.R. 309; 156 A.L.R. 1356.
Validity of statute or ordinance vesting discretion in public officials without prescribing a rule of action, 92 A.L.R. 400.
Liability of municipality or other political unit for malicious prosecution, 103 A.L.R. 1512.
Death action against municipal corporation as subject to statute of limitations governing wrongful death actions or that governing actions against a municipality for injury to person or property, 53 A.L.R.2d 1068.
Municipal liability for personal injuries resulting from police officer's use of excessive force in performance of duty, 88 A.L.R.2d 1330.
Liability of municipal corporation for shooting of bystander by law enforcement officer attempting to enforce law, 76 A.L.R.3d 1176.
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.
Immunity of public officer from liability for injuries caused by negligently released individual, 5 A.L.R.4th 773.
Municipal or state liability for injuries resulting from police roadblocks or commandeering of private vehicles, 19 A.L.R.4th 937.
Liability for failure of police response to emergency call, 39 A.L.R.4th 691.
Governmental tort liability for failure to provide police protection to specifically threatened crime victim, 46 A.L.R.4th 948.