protection of sovereign immunity in Georgia

2023As a result, the Kyle Court found, “the purpose, function, and management of the [Georgia Lottery Corporation] are indelibly intertwined with the State in a manner that qualifies it for the protection of sovereign immunity as a State instrumentality.” Id., citing Miller, supra. More recently, our Court in Campbell found that a charter school corporation was entitled to sovereign immunity.

2023Following this analysis, the Campbell Court found that “the purpose, function, and management of [the charter school was] indelibly intertwined with the State in a manner that qualifies it for the protection of sovereign immunity as a State instrumentality.” Id., citing Kyle, 290 Ga. at 91 (1).

2016Moreover, where a motion to dismiss asserting the protection of sovereign immunity is filed pursuant to OCGA § 9-11-12 (b) (1), as it was here, the trial court is entitled to hear evidence and make relevant factual findings in deciding the issue of immunity Rivera v. Washington, 298 Ga. 770 ( 784 SE2d 775 ) (2016); Dupree, 256 Ga. App. at 675 (1) (b); OCGA § 9-11-12 (d).

2016Moreover, where a motion to dismiss asserting the protection of sovereign immunity is filed pursuant to OCGA § 9-11-12 (b) (1), as it was here, the trial court is entitled to hear evidence and make relevant factual findings in deciding the issue of immunity Rivera v. Washington, 298 Ga. 770 ( 784 SE2d 775 ) (2016); Dupree, 256 Ga. App. at 675 (1) (b); OCGA § 9-11-12 (d).

1995And it makes no difference in this analysis that the statute creating the authority provides that it will be performing "essential governmental functions," [1] "[s]ince a hospital authority, though an instrumentality of government, is not, in any sense, an agency or department of the state, the nature of its function is irrelevant; it is not, by the language of the statute entitled to the protection of sovereign immunity." Id. at 42 , 440 S.E.2d 195 .

1995And it makes no difference in this analysis that the statute creating the authority provides that it will be performing "essential governmental functions," [1] "[s]ince a hospital authority, though an instrumentality of government, is not, in any sense, an agency or department of the state, the nature of its function is irrelevant; it is not, by the language of the statute entitled to the protection of sovereign immunity." Id. at 42 , 440 S.E.2d 195 .

2021Thus, although it enjoys the protection of sovereign immunity in negligence actions, ‘[a] municipality like any other individual or private corporation may be liable for damages it causes 9 it correctly determined that the actual losses—or damages—they suffered were solely due to the assault and battery perpetrated by the two inmates.15 Indeed, the reason for the roadway’s obstruction was unknown until the inmates emerged from the vehicle and approached Phillip; and it was only then that he sustained any damages.16 It to a third party from the operation or maintenance of a nuisance, irrespecti

1993Thus, although it enjoys the protection of sovereign immunity in negligence actions, [a] municipality like any other individual or private corporation may be liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or a ministerial function. [Cits.] Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 837-838 ( 165 SE2d 141 ) (1968).

2011See id.

1999See Seay v. Cleveland, supra at 65 , 508 S.E.2d 159 ; Gilbert v. Richardson, supra at 754, 452 S.E.2d 476 .

2018I therefore dissent. corporation cannot, under the guise of performing a governmental function, create a nuisance dangerous to life or health.”) (citations omitted); Mayor & Aldermen of Savannah v. Herrera, 343 Ga. App. 424, 427-432 (1) ( 808 SE2d 416 ) (2017) (In a case where the plaintiff alleged that the city maintained a nuisance in the form of a tree in a city right-of-way that was obstructing the view of motorists traveling through the adjacent intersection and sought damages for personal injury, the evidence presented issues of fact regarding whether the city had actual or constructive

2018I therefore dissent. corporation cannot, under the guise of performing a governmental function, create a nuisance dangerous to life or health.”) (citations omitted); Mayor & Aldermen of Savannah v. Herrera, 343 Ga. App. 424, 427-432 (1) ( 808 SE2d 416 ) (2017) (In a case where the plaintiff alleged that the city maintained a nuisance in the form of a tree in a city right-of-way that was obstructing the view of motorists traveling through the adjacent intersection and sought damages for personal injury, the evidence presented issues of fact regarding whether the city had actual or constructive

2018I therefore dissent. corporation cannot, under the guise of performing a governmental function, create a nuisance dangerous to life or health.”) (citations omitted); Mayor & Aldermen of Savannah v. Herrera, 343 Ga. App. 424, 427-432 (1) ( 808 SE2d 416 ) (2017) (In a case where the plaintiff alleged that the city maintained a nuisance in the form of a tree in a city right-of-way that was obstructing the view of motorists traveling through the adjacent intersection and sought damages for personal injury, the evidence presented issues of fact regarding whether the city had actual or constructive

2018I therefore dissent. corporation cannot, under the guise of performing a governmental function, create a nuisance dangerous to life or health.”) (citations omitted); Mayor & Aldermen of Savannah v. Herrera, 343 Ga. App. 424, 427-432 (1) ( 808 SE2d 416 ) (2017) (In a case where the plaintiff alleged that the city maintained a nuisance in the form of a tree in a city right-of-way that was obstructing the view of motorists traveling through the adjacent intersection and sought damages for personal injury, the evidence presented issues of fact regarding whether the city had actual or constructive

2018I therefore dissent. corporation cannot, under the guise of performing a governmental function, create a nuisance dangerous to life or health.”) (citations omitted); Mayor & Aldermen of Savannah v. Herrera, 343 Ga. App. 424, 427-432 (1) ( 808 SE2d 416 ) (2017) (In a case where the plaintiff alleged that the city maintained a nuisance in the form of a tree in a city right-of-way that was obstructing the view of motorists traveling through the adjacent intersection and sought damages for personal injury, the evidence presented issues of fact regarding whether the city had actual or constructive

2018I therefore dissent. corporation cannot, under the guise of performing a governmental function, create a nuisance dangerous to life or health.”) (citations omitted); Mayor & Aldermen of Savannah v. Herrera, 343 Ga. App. 424, 427-432 (1) ( 808 SE2d 416 ) (2017) (In a case where the plaintiff alleged that the city maintained a nuisance in the form of a tree in a city right-of-way that was obstructing the view of motorists traveling through the adjacent intersection and sought damages for personal injury, the evidence presented issues of fact regarding whether the city had actual or constructive

2016Moreover, where a motion to dismiss asserting the protection of sovereign immunity is filed pursuant to OCGA § 9-11-12 (b) (1), as it was here, the trial court is entitled to hear evidence and make relevant factual findings in deciding the issue of immunity Rivera v. Washington, 298 Ga. 770 ( 784 SE2d 775 ) (2016); Dupree, 256 Ga. App. at 675 (1) (b); OCGA § 9-11-12 (d).

2015Under the Georgia Constitution, the protection of sovereign immunity extends to the state and all of its departments, including counties, “and thus protects county employees who are sued in their official capacities, unless sovereign immunity has been waived.” (Citation omitted.) Ratliff v. McDonald, 326 Ga. App. 306, 309 (1) ( 756 SE2d 569 ) (2014).

2015Under the Georgia Constitution, the protection of sovereign immunity extends to the state and all of its departments, including counties, “and thus protects county employees who are sued in their official capacities, unless sovereign immunity has been waived.” (Citation omitted.) Ratliff v. McDonald, 326 Ga. App. 306, 309 (1) ( 756 SE2d 569 ) (2014).

2014See Banks v.Mayor &c. of Savannah, 210 Ga. App. 62 (1) ( 435 SE2d 68 ) (1993) (acknowledging that operation of police engaged in duties inherently involves some danger); see also Georgia Dept. of Transp., 285 Ga. at 268 (3) (claim of nuisance against municipality 3 requires showing that municipality engaged in degree of misfeasance that exceeded mere negligence).

2014See Banks v. Mayor &c. of Savannah, 210 Ga. App. 62 (1) ( 435 SE2d 68 ) (1993) (acknowledging that operation of police engaged in duties inherently involves some danger); see also Ga. Dept. of Transp., 285 Ga. at 268 (3) (claim of nuisance against municipality requires showing that municipality engaged in degree of misfeasance that exceeded mere negligence).

2014See Banks v.Mayor &c. of Savannah, 210 Ga. App. 62 (1) ( 435 SE2d 68 ) (1993) (acknowledging that operation of police engaged in duties inherently involves some danger); see also Georgia Dept. of Transp., 285 Ga. at 268 (3) (claim of nuisance against municipality 3 requires showing that municipality engaged in degree of misfeasance that exceeded mere negligence).

2014See Banks v.Mayor &c. of Savannah, 210 Ga. App. 62 (1) ( 435 SE2d 68 ) (1993) (acknowledging that operation of police engaged in duties inherently involves some danger); see also Georgia Dept. of Transp., 285 Ga. at 268 (3) (claim of nuisance against municipality 3 requires showing that municipality engaged in degree of misfeasance that exceeded mere negligence).

2012The 4 Ardizonne v. Dept. of Human Resources, 258 Ga. App. 858 ( 575 SE2d 738 ) (2002) (state governmental entities were entitled to the protection of sovereign immunity where a victim was fatally wounded by his son, who had been released from one of the state governmental entities and was getting outpatient services from another one of them); see also Southerland, 293 Ga. App. at 58 (1) (Georgia Department of Corrections was entitled to the protection of sovereign immunity where the victim was killed by his cell mate); Davis v. Standifer, 275 Ga. App. 769, 774-775 (1) (b) ( 621 SE2d 852 ) (200

2012The 4 Ardizonne v. Dept. of Human Resources, 258 Ga. App. 858 ( 575 SE2d 738 ) (2002) (state governmental entities were entitled to the protection of sovereign immunity where a victim was fatally wounded by his son, who had been released from one of the state governmental entities and was getting outpatient services from another one of them); see also Southerland, 293 Ga. App. at 58 (1) (Georgia Department of Corrections was entitled to the protection of sovereign immunity where the victim was killed by his cell mate); Davis v. Standifer, 275 Ga. App. 769, 774-775 (1) (b) ( 621 SE2d 852 ) (200

2012The 4 Ardizonne v. Dept. of Human Resources, 258 Ga. App. 858 ( 575 SE2d 738 ) (2002) (state governmental entities were entitled to the protection of sovereign immunity where a victim was fatally wounded by his son, who had been released from one of the state governmental entities and was getting outpatient services from another one of them); see also Southerland, 293 Ga. App. at 58 (1) (Georgia Department of Corrections was entitled to the protection of sovereign immunity where the victim was killed by his cell mate); Davis v. Standifer, 275 Ga. App. 769, 774-775 (1) (b) ( 621 SE2d 852 ) (200

2012The 4 Ardizonne v. Dept. of Human Resources, 258 Ga. App. 858 ( 575 SE2d 738 ) (2002) (state governmental entities were entitled to the protection of sovereign immunity where a victim was fatally wounded by his son, who had been released from one of the state governmental entities and was getting outpatient services from another one of them); see also Southerland, 293 Ga. App. at 58 (1) (Georgia Department of Corrections was entitled to the protection of sovereign immunity where the victim was killed by his cell mate); Davis v. Standifer, 275 Ga. App. 769, 774-775 (1) (b) ( 621 SE2d 852 ) (200

2012The 4 Ardizonne v. Dept. of Human Resources, 258 Ga. App. 858 ( 575 SE2d 738 ) (2002) (state governmental entities were entitled to the protection of sovereign immunity where a victim was fatally wounded by his son, who had been released from one of the state governmental entities and was getting outpatient services from another one of them); see also Southerland, 293 Ga. App. at 58 (1) (Georgia Department of Corrections was entitled to the protection of sovereign immunity where the victim was killed by his cell mate); Davis v. Standifer, 275 Ga. App. 769, 774-775 (1) (b) ( 621 SE2d 852 ) (200

2012The 4 Ardizonne v. Dept. of Human Resources, 258 Ga. App. 858 ( 575 SE2d 738 ) (2002) (state governmental entities were entitled to the protection of sovereign immunity where a victim was fatally wounded by his son, who had been released from one of the state governmental entities and was getting outpatient services from another one of them); see also Southerland, 293 Ga. App. at 58 (1) (Georgia Department of Corrections was entitled to the protection of sovereign immunity where the victim was killed by his cell mate); Davis v. Standifer, 275 Ga. App. 769, 774-775 (1) (b) ( 621 SE2d 852 ) (200

2008City of Atlanta v. Heard, 252 Ga. App. 179,181 (1) ( 555 SE2d 849 ) (2001).

2008City of Atlanta v. Heard, 252 Ga. App. 179,181 (1) ( 555 SE2d 849 ) (2001).

2000Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3) ( 414 SE2d 638 ) (1992) (the State may withdraw its waiver of sovereign immunity at any time before a citizen acts in reliance on that waiver by filing suit).

2000Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3) ( 414 SE2d 638 ) (1992) (the State may withdraw its waiver of sovereign immunity at any time before a citizen acts in reliance on that waiver by filing suit).

1999See Seay v. Cleveland, supra at 65 ; Gilbert v. Richardson, supra at 754.

1999See Seay v. Cleveland, supra at 65 , 508 S.E.2d 159 ; Gilbert v. Richardson, supra at 754, 452 S.E.2d 476 .

1997See Scarlett v. Ga. Ports Auth., 223 Ga. 417, 418 (1) ( 156 SE2d 77 ) (1967).

1997See Scarlett v. Ga. Ports Auth., 223 Ga. 417, 418 (1) ( 156 SE2d 77 ) (1967).

1995This argument was decided adversely to her in Rainey v. City of East Point, 173 Ga. App. 893, 894 ( 328 SE2d 567 ) (1985). 5.

1995This argument was decided adversely to her in Rainey v. City of East Point, 173 Ga. App. 893, 894 ( 328 SE2d 567 ) (1985). 5.

1994In the decision upon which we relied in MARTA v. Boswell, the Supreme Court of the United States ultimately concluded that, “[a]bsent a compelling reason for approving such an award [of punitive damages], not present here, we deem it unwise to inflict the risk [on a governmental entity].” (Emphasis supplied.) City of Newport v. Fact Concerts, supra at 271 (III) (B).