Constitutionality of statutory scheme for waiver of immunity by state and counties.

- The 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, it does not violate due process or equal protection. Woodard v. Laurens County, 265 Ga. 404, 456 S.E.2d 581 (1995).

Municipal corporation is without authority to waive its immunity from liability for damages arising out of exercise of governmental functions. Boone v. City of Columbus, 87 Ga. App. 701, 75 S.E.2d 338 (1953).

No conflict between statute of limitations and this paragraph.

- There is no conflict between statute of limitation applicable to insurance suits against municipalities and 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).

Statute of limitation of action not inconsistent with this paragraph.

- Former Code 1933, § 23-1602 (see now O.C.G.A. § 36-11-1), providing that "[a]ll claims against counties must be presented within 12 months after they accrue or become payable, or the same are barred," is not inconsistent with this paragraph. Cobb v. Board of Comm'rs of Rds. & Revenue, 151 Ga. App. 472, 260 S.E.2d 496 (1979) (see Ga. Const. 1983, Art. IX, Sec. II, Para. IX).

Construction of duplicative constitutional grants of sovereign immunity.

- Since the authority to waive the sovereign immunity of the state, and concomitantly that of the counties of the state, is given to the General Assembly by Ga. Const. 1983, Art. I, Sec. II, Para. IX, it was not necessary for the people to give an identical authority of waiver to the General Assembly by Ga. Const. 1983, Art. IX, Sec. II, Para. IX. However, this duplicative grant does not render the two provisions inconsistent and does not indicate an intent that the Article I provision would not reserve sovereign immunity to counties. Toombs County v. O'Neal, 254 Ga. 390, 330 S.E.2d 95 (1985).

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).

Application to counties.

- In a negligence action against a county, the county's motion for summary judgment was granted on the basis of Ga. Const. 1983, Art. IX, Sec. II, Para. IX and Ga. Const. 1983, Art. I, Sec. II, Para. IX (waiver of sovereign immunity to the extent of liability insurance coverage) not applying to counties. Bliss v. Cobb County, 599 F. Supp. 233 (N.D. Ga. 1984).

Employee was not entitled to damages arising out of a violation of O.C.G.A. § 9-11-65(b) in obtaining a temporary restraining order (TRO) against the employee as the county had sovereign immunity and the county manager and the county attorney had sovereign immunity in their official capacities; the county manager and the county attorney had official immunity in their individual capacities as obtaining the TRO was a discretionary action that they undertook to protect the public and workplace safety after they were advised of the employee's actions. Even though the attorney acted negligently in obtaining the TRO, the attorney did not act with actual malice. Wallace v. Greene County, 274 Ga. App. 776, 618 S.E.2d 642 (2005).

In a detainee's suit against a sheriff, county, and city arising out of the detainee's improper detention, the defendants' motion to dismiss was denied as to the sheriff's individual liability for violations of federal law, and for failure to update the detainee's criminal record as required by O.C.G.A. § 42-4-7 and bring the detainee before a judicial officer; however, claims against the city and county were dismissed based on immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX(d) and Ga. Const. 1983, Art. IX, Sec. II, Para. IX. Purvis v. City of Atlanta, 142 F. Supp. 3d 1337 (N.D. Ga. 2015).

Recreational Property Act did not waive official immunities.

- Although finding that official immunity shielded a county employee from liability for injuries suffered by a child when that child fell from a swing on county property that the employee previously inspected, and that sovereign immunity shielded the county, the trial court nonetheless erred in concluding that the Recreational Property Act, O.C.G.A. § 51-3-20 et seq., waived these immunities, as: (1) implied waivers of governmental immunity were not to be favored; (2) the employee was entitled to official or qualified immunity, which could not be waived; and (3) even assuming a partial waiver of sovereign and official immunity through enactment of the Act, no evidence was presented that the employee acted wilfully and the defect complained about by the child's mother was apparent to those using the property. Norton v. Cobb, 284 Ga. App. 303, 643 S.E.2d 803 (2007), cert. denied, 2007 Ga. LEXIS 634 (Ga. 2007).

Application to city.

- Trial court properly granted summary judgment to a city on a parent's negligence claim against the city stemming from a child's serious automobile accident at a known dangerous intersection that was inappropriately signaled because the city was immune from suit as the issue of whether to install a traffic signal at the intersection was a discretionary act, entitling the city to sovereign immunity; further, a successful tax referendum to fund a new traffic light did not create a duty to install a traffic light at the intersection before completing other projects. Riggins v. City of St. Marys, 264 Ga. App. 95, 589 S.E.2d 691 (2003).

In a tort action for personal injuries and property damage arising from an auto collision filed against a city and its 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 its sovereign immunity to the extent that it 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).

Surety sued a city for money had and received stemming from the forfeiture of a cash bond; however, this claim was properly dismissed as Ga. Const. 1983, Art. IX, Sec. II, Para. IX conferred sovereign immunity on the city. Watts v. City of Dillard, 294 Ga. App. 861, 670 S.E.2d 442 (2008).

Court of appeals correctly determined that no statute required that a city's agreement with the Georgia Interlocal Risk Management Agency (GIRMA) had to meet the uninsured and underinsured motorist coverage requirements that an insurance policy issued by an insurer had to meet pursuant to O.C.G.A. § 33-7-11 because the General Assembly explicitly declared that GIRMA was not an insurer; GIRMA and its liability coverage contracts, and the requirements imposed thereon by statute, exist solely in the context of sovereign immunity, and the statutory waiver thereof. Godfrey v. Ga. Interlocal Risk Mgmt. Agency, 290 Ga. 211, 719 S.E.2d 412 (2011).

City was not entitled to sovereign immunity because the city's "Public Officials Errors and Omissions" insurance policy covered the wrongful termination claims brought by city employees; therefore, consistent with O.C.G.A. § 36-33-1(a), the city was deemed to have waived sovereign immunity to the extent of the limits of the city's insurance policy covering those claims. Owens v. City of Greenville, 290 Ga. 557, 722 S.E.2d 755 (2012).

Trial court erred in not granting a city's motion to dismiss the negligence claims against the city because the city was exercising a governmental function when the city demolished an abandoned house claimed a nuisance; therefore, the city was entitled to sovereign immunity on those claims. City of Atlanta v. Durham, 324 Ga. App. 563, 751 S.E.2d 172 (2013).

In a correction officer's negligence suit against the city alleging a failure to inspect the inmate transport bus and to maintain the brake lines, the trial court erred in denying the city's motion for summary judgment because sovereign immunity was not waived, and because, without any evidence that the city failed to follow a specific rule, procedure, or law, or that it otherwise deviated from some clear standard for performing its inspection of the bus and its brake lines, the city's act in inspecting the brake lines was a discretionary one. City of Milledgeville v. Primus, 325 Ga. App. 553, 753 S.E.2d 146 (2013).

In a wrongful death case, the trial court properly denied a city summary judgment on the plaintiffs' negligence and nuisance claims based on the obstruction in the line of sight caused by a tree as a jury had to determine whether the tree located on the city's right of way obstructed the view of oncoming traffic such that the tree was a defect within the meaning of O.C.G.A. § 32-4-93. Mayor & Aldermen of Savannah v. Herrera, 343 Ga. App. 424, 808 S.E.2d 416 (2017).

Because the plaintiffs had not demonstrated that the criminal activity at the subject location was a nuisance maintained by the city resulting in damage to private property or that the act of issuing and/or failing to revoke an occupational tax certificate was a ministerial act for which the city's sovereign immunity had been waived by the General Assembly, the City was protected from suit. City of Albany v. Stanford, Ga. App. , S.E.2d (June 26, 2018).

City liability for police officer's actions.

- When officers arrested a decedent who died shortly after the arrest, a city which employed one of the officers could not be held liable because: (1) the city was immune from claims involving police work unless the city waived that immunity; and (2) it was not shown that the city waived immunity. Hoyt v. Bacon County, F. Supp. 2d (S.D. Ga. Jan. 26, 2011).

City immune for action of issuing a business license.

- Suit by parents against a city alleging that the city negligently issued a day care business license to a day care, which had left their child in a hot car, resulting in the child's death, was barred by sovereign immunity because the issuance of a license was a government function. Calloway v. City of Warner Robins, 336 Ga. App. 714, 783 S.E.2d 175 (2016).

Applicability to diversity actions.

- In a diversity action against a Georgia city arising out of an accident in South Carolina involving a city garbage truck, even though the city would not be entitled to sovereign immunity under South Carolina law, immunity enjoyed by the city under Georgia law would be extended as a matter of comity. Davis v. City of Augusta, 942 F. Supp. 577 (S.D. Ga. 1996).

School officials sued in their official capacity or for acting in areas where they were vested with discretion will not be liable unless they acted wilfully, wantonly, or outside the scope of their authority; otherwise, their actions are protected by the doctrine of governmental immunity. McClendon v. Norwood, 179 Ga. App. 176, 346 S.E.2d 1 (1986).

Tax refund statute did not waive school district immunity.

- Taxpayer's suit against a school district seeking a refund was barred by immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX(e) and Ga. Const. 1983, Art. IX, Sec. II, Para IX; O.C.G.A. § 48-5-380 provided for tax refunds by counties and municipalities but not school districts and, therefore, did not constitute a waiver of the school district's immunity. City of Dublin Sch. Dist. v. MMT Holdings, LLC, 346 Ga. App. 546, 816 S.E.2d 494 (2018).

Immunity if acts done within scope of authority and without wilfulness, fraud, malice or corruption.

- Under sovereign immunity principles, a public officer or employee acting within the scope of his or her authority and engaged in discretionary as opposed to ministerial functions is entitled to immunity from suit, provided the acts complained of are done within the scope of the officer's authority and without wilfulness, fraud, malice, or corruption. Hendon v. DeKalb County, 203 Ga. App. 750, 417 S.E.2d 705, cert. denied, 203 Ga. App. 906, 417 S.E.2d 705 (1992).

Appellate court erred by affirming a trial court's denial of a city's motion to dismiss an inmate's complaint because the care of inmates in the custody of a municipal corporation is a governmental function for which sovereign immunity has not been waived; therefore, the inmate was precluded from pursuing negligence claims. City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015).

Care of inmates.

- Georgia Supreme Court finds that the care of inmates in the custody of a municipal corporation is a governmental function for which sovereign immunity has not been waived. City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015).

Nuisance exception.

- Trial court properly denied a city's motion to dismiss based on sovereign immunity because the landowners asserted that the damage from the city's drainage system amounted to an unlawful taking of their property for which sovereign immunity has been waived. City of Greensboro v. Rowland, 334 Ga. App. 148, 778 S.E.2d 409 (2015), cert. denied, No. S16C0305, 2016 Ga. LEXIS 154 (Ga. 2016).

City was entitled to sovereign immunity under Ga. Const. 1983, Art. IX, Sec. II, Para. IX, against a claim by a decedent's survivors that the city allowed a known nuisance in the form of an unauthorized and unlicensed nightclub to continue attracting drugs and crime, resulting in the decedent's shooting death outside the nightclub. City of Albany v. Stanford, Ga. App. , 815 S.E.2d 322 (2018).

Cited in Commissioners of Rds. & Revenues v. Davis, 213 Ga. 792, 102 S.E.2d 180 (1958); Lee v. Petty, 133 Ga. App. 201, 210 S.E.2d 383 (1974); Pate v. Turner County, 162 Ga. App. 463, 291 S.E.2d 400 (1982); Peeples v. City of Atlanta, 189 Ga. App. 888, 377 S.E.2d 889 (1989); Payne v. Blackwell, 259 Ga. 483, 384 S.E.2d 393 (1989); Hartley v. Agnes Scott College, 295 Ga. 458, 759 S.E.2d 857 (2014).

ALR.

- Power of municipal corporation to take out liability insurance, 33 A.L.R. 717.

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.

Use of municipal automobile as a corporate or as a governmental function, 110 A.L.R. 1117; 156 A.L.R. 714.

Tortious breach of contract as within consent to suit against United States or state on contract, 1 A.L.R.2d 864.

Liability of county for torts in connection with activities which pertain, or are claimed to pertain, to private or proprietary function, 16 A.L.R.2d 1079.

Liability or indemnity insurance carried by governmental unit as affecting immunity from tort liability, 68 A.L.R.2d 1437.

What is "motor vehicle" or the like within statute waiving governmental immunity as to operation of such vehicles, 77 A.L.R.2d 945.

Liability of governmental unit or its officers for injury to innocent occupant of moving vehicle, or for damage to such vehicle, as result of police chase, 4 A.L.R.4th 865.

Liability of governmental officer or entity for failure to warn or notify of release of potentially dangerous individual from custody, 12 A.L.R.4th 722.

Failure to restrain drunk driver as ground of liability of state or local government unit or officer, 48 A.L.R.4th 320.

Governmental tort liability as to highway median barriers, 58 A.L.R.4th 559.

Governmental tort liability for injury to roller skater allegedly caused by sidewalk or street defects, 58 A.L.R.4th 1197.

Liability of school authorities for hiring or retaining incompetent or otherwise unsuitable teacher, 60 A.L.R.4th 260.

Tort liability of public authority for failure to remove parentally abused or neglected children from parents' custody, 60 A.L.R.4th 942.

State and local government liability for injury or death of bicyclist due to defect or obstruction in public bicycle path, 68 A.L.R.4th 204.

Governmental liability for negligence in licensing, regulating, or supervising private day-care home in which child is injured, 68 A.L.R.4th 266.

Municipal liability for negligent fire inspection and subsequent enforcement, 69 A.L.R.4th 739.