O.C.G.A. § 20-3-36 (2019)

Annotations

Cross references. - Waiver of sovereign immunity in nuclear facility liability insurance, § 20-3-71. Waiver of sovereign immunity in actions for breach of written contracts entered into by the state, its departments, and others, § 50-21-1. Editor’s notes. - Ga. L. 1976, p. 452, § 2, not codified by the General Assembly, provides: ‘‘That part of section 3 of an Act providing for the establishment of a public seat of learning in Georgia and creating ‘the Trustees of the University of Georgia,’ approved January 27, 1785 (Ga. L. 1785, pp. 560, 561, Sec. 3; Cobb’s Digest, pp.

1082, 1084, Sec. III), which provides that the said trustees ‘shall and may be a person in law, capable to plead and be impleaded, defend and be defended, answer and be answered unto,’ as amended, is hereby repealed in its entirety.’’ Law reviews. - For survey article on torts, see 34 Mercer L. Rev. 271 (1982). For comment, ‘‘Keeping the Arms in Touch: Taking Political Accountability Seriously in the Eleventh Amendment Arm of the State Doctrine,’’ see 64 Emory L.J. 819 (2015).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1935, p. 7, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section. Section conflicts with Constitution, which does not prevent suit by or against board of regents. - Since it is clear that the power to sue and be sued existed in the board of regents at the time of the adoption of the 1943 constitutional amendment and the 1945 Constitution and was reenacted as part of the 1976 Constitution, an Act attempting to provide sovereign immunity for the board of regents is in direct conflict with the constitution. As to the board of regents, O.C.G.A. § 20-3-36 is an attempt to diminish the powers and duties of the board of regents contrary to the constitution, and in no way prevents the board of regents from suing to protect the board’s other powers and duties or from being sued. McCafferty v. Medical College, 249 Ga. 62, 287 S.E.2d 171 (1982). Regents immune from suit. - Although the Regents of the University System of Georgia is a corporate body, established by O.C.G.A. § 20-3-20, neither that section nor any other provision following the statute have granted the corporation any power to sue or be sued. The regents are therefore immune from suit under O.C.G.A. § 20-3-36, since the powers and duties of the corporation do not have the constitutional status of the board of regents’ powers and duties. McCafferty v. Medical College, 249 Ga. 62, 287 S.E.2d 171 (1982). Suit against regents is suit against the state and cannot be maintained without the state’s consent. Ramsey v. Hamilton, 181 Ga. 365, 182 S.E. 392 (1935) (decided under former Ga. L. 1935, p. 7). Board’s immunity under the doctrine of sovereign immunity was not waived when an endorsement eliminating the self-insurance character of the board’s insurance plan was not void for any failure to comply with the provisions

of the Insurance Code, which does not apply to the board. Board of Regents v. Tyson, 261 Ga. 368, 404 S.E.2d 557 (1991). Board’s immunity under the doctrine of sovereign immunity was not waived, when hospital records, including a ‘‘consent to care’’ form, upon which a patient’s action was based, did not constitute a written contract. Board of Regents v. Tyson, 261 Ga. 368, 404 S.E.2d 557 (1991). Trial court properly denied summary judgment to the board of regents because even if there was an agreement between the parties, that agreement was not in writing and, therefore, the board’s sovereign immunity was not waived. Bd. of Regents of the Univ. Sys. of Ga. v. Winter, 331 Ga. App. 528, 771 S.E.2d 201 (2015), overruled on other grounds, Rivera v. Washington, 2016 Ga. LEXIS 248 (Ga. 2016). Board’s sovereign immunity was waived. - Trial court properly granted summary judgment to an applicant for university employment as to the issue of finding a valid and written contract, thus finding that the state’s sovereign immunity was waived; however, summary judgment was reversed as jury issues remained as to: (1) whether the university board of regents breached the contract; (2) whether university officials violated an implied duty to use their best efforts to secure the board’s approval of the applicant’s appointment, whether the officials acted in bad faith when the applicants withdrew the appointment, and whether the officials were solely responsible for the failure of the board to vote on the appointment; and (3) whether the applicant’s alleged misconduct rendered the continued pursuit of the appointment impossible or impracticable, and whether the applicant ratified the withdrawal of the appointment. Board of Regents of the Univ. Sys. v. Doe, 278 Ga. App. 878, 630 S.E.2d 85 (2006). Cited in Meadows Motors, Inc. v. Department of Admin. Servs., 141 Ga. App. 224, 233 S.E.2d 14 (1977); Goolsby v. Regents of Univ. Sys., 141 Ga. App. 605, 234 S.E.2d 165 (1977); C.F.I. Constr. Co. v. Board of Regents of Univ. Sys., 145 Ga.

App. 471, 243 S.E.2d 700 (1978); Nat’l Ass’n of Bds. of Pharm. v. Bd. of Regents of the Univ. Sys. of Ga., No. 3:07-CV-084

(CDL), 2008 U.S. Dist. LEXIS 32116 (M.D. Ga. Apr. 18, 2008).

OPINIONS OF THE ATTORNEY GENERAL Employment by board of regents constitutes employment by state department or agency. - Employment by the board of regents in a position in the

University System of Georgia is employment by or the rendition of services for a state department or agency. 1981 Op. Att’y Gen. No. 81-13.

RESEARCH REFERENCES Am. Jur. 2d. - 15A Am. Jur. 2d, Colleges and Universities, § 44. C.J.S. - 14A C.J.S., Colleges and Universities, § 53. ALR. - Remedy available against invalid judgment in favor of United States, state, or other governmental unit immune to suit, 163 ALR 244. Civil liability of school officials for malicious prosecution, 66 ALR2d 749. Tort liability of public schools and institutions of higher learning, 86 ALR2d 489. Modern status of doctrine of sovereign immunity as applied to public schools and institutions of higher learning, 33 ALR3d 703. Tort liability of public schools and institutions of higher learning for accidents due to condition of buildings or equipment, 34 ALR3d 1166. Tort liability of public schools and institutions of higher learning for accident occurring during school athletic events, 35 ALR3d 725. Tort liability of public schools and institutions of higher learning for accidents

associated with chemistry experiments, shopwork, and manual or vocational training, 35 ALR3d 758. Tort liability of private schools and institutions of higher learning for accidents due to condition of buildings, equipment, or outside premises, 35 ALR3d 975. Tort liability of public schools and institutions of higher learning for injuries resulting from lack or insufficiency of supervision, 38 ALR3d 830. Liability of school authorities for hiring or retaining incompetent or otherwise unsuitable teacher, 60 ALR4th 260. Tort liability of college, university, fraternity, or sorority for injury or death of member or prospective member by hazing or initiation activity, 68 ALR4th 228. Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 ALR5th 497. Tort liability of public schools and institutions of higher learning for accidents associated with the transportation of students, 23 ALR5th 1.