Coffee County School Dist. v. Snipes

• Decision Date: 30 January 1995
• Docket Number: No. A94A2635,A94A2635
• Citation: 454 S.E.2d 149,216 Ga.App. 293
• Parties: , 98 Ed. Law Rep. 1073 COFFEE COUNTY SCHOOL DISTRICT et al. v. SNIPES.
• Court: Georgia Court of Appeals

Page 149

454 S.E.2d 149

216 Ga.App. 293, 98 Ed. Law Rep. 1073

COFFEE COUNTY SCHOOL DISTRICT et al. v. SNIPES.

No. A94A2635.

Court of Appeals of Georgia.

Jan. 30, 1995.

Reconsideration Denied Feb. 14, 1995.

Certiorari Denied May 5, 1995.

Young, Clyatt, Thagard & Hoffman, F. Thomas Young, Sherry S. Harrell, Valdosta, for appellants.

Kenneth E. Futch, Jr., Blackshear, Jimmy J. Boatright, Alma, for appellee.

ANDREWS, Judge.

Appellee's five-year-old child fell while playing at school and severely fractured her elbow. On behalf of the child, appellee sued the Coffee County School District, Hierling, a school teacher, and Johnson, a paraprofessional teacher's aide. The individual defendants were employed by the school district and were in charge of the child's class at the time of the fall. The defendants moved for summary judgment on grounds that the school district was entitled to sovereign immunity and the individual defendants were entitled to official immunity. We granted the defendants' application for an interlocutory appeal from the trial court's denial of their motion for summary judgment.

Since the present cause of action accrued on August 30, 1991, this case is governed by the 1991 amendment to Art. I, Sec II, Par. IX of the Georgia Constitution of 1983 applicable to causes of action accruing on or after January 1, 1991. Curtis v. Bd. of Regents, 262 Ga. 226, 416 S.E.2d 510 (1992). The 1991 amendment provides in part that: "(a) The General Assembly may waive the state's sovereign immunity from suit by enacting a State Tort Claims Act, in which the General Assembly may provide by law for procedures for the making, handling, and disposition of actions or claims against the state and its departments, agencies, officers, and employees, upon such terms and subject to such conditions and limitations as the General Assembly may provide.... (e) Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver." ¹

We conclude that the 1991 amendment extending sovereign immunity "to the state and all of its departments and agencies" includes county-wide school districts, such as the Coffee County School District, created pursuant to Art. VIII, Sec. V, Par. I of the 1983 Georgia Constitution and OCGA § 20-2-50. Like the counties within which they are created, such school districts are political subdivisions of the state entitled to the sovereign immunity extended to the state. Cotton States Mut. Ins. Co. v. Keefe, 215 Ga. 830, 834, 113 S.E.2d 774 (1960); Towns v. Suttles, 208 Ga. 838, 840, 69 S.E.2d 742 (1952); Pinion v. Walker County School Dist., 203 Ga. 99, 102-103, 45 S.E.2d 405 (1947); see Gilbert v. Richardson, 264 Ga. 744, 452 S.E.2d 476 (1994) (1991 amendment extends sovereign immunity to counties as political subdivisions of the state); compare City of Thomaston v. Bridges, 264 Ga. 4, 439 S.E.2d 906 (1994) (concluding that municipalities are not entitled to sovereign immunity under the 1991 amendment); Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40, 440 S.E.2d 195 (1994) (holding that a hospital authority is not an entity entitled to sovereign immunity).

Prior to the 1991 constitutional amendment, the Georgia Constitution of 1983 extended sovereign immunity to the state in language virtually identical to that used in the 1991 amendment. The pre-1991 sovereign immunity provisions were construed to apply to political subdivisions of the state including counties, county boards of education and county school districts. Thigpen v. McDuffie County Bd. of Ed., 255 Ga. 59, 335 S.E.2d 112 (1985); Sisson v. Douglas County School Dist., 181 Ga.App. 77, 78, 351 S.E.2d 272 (1986). Since the 1991 amendment was proposed and ratified with full knowledge of the construction placed upon the existing sovereign immunity provisions, and there is no evidence that the similar language of the 1991 amendment was not intended to apply to county school districts, the extension of sovereign immunity "to the state and all of its departments and agencies" under the 1991 amendment applies to county school districts. See Gilbert, supra.

Under the authority of the 1991 constitutional amendment, the General Assembly subsequently enacted "The Georgia Tort Claims Act" (OCGA § 50-21-20 et seq.), applicable to causes of action accruing on or after January 1, 1991. The Georgia Tort Claims Act provides for a limited waiver of the state's sovereign immunity for the torts of its officers and employees, but it expressly excludes school districts from the waiver. OCGA § 50-21-22(5); see Daniels v. Decatur County, 212 Ga.App. 378, 379, 441 S.E.2d 790 (1994). Although the 1991 amendment does not restrict the legislature's authority to waive sovereign immunity to the Georgia Tort Claims Act, any such waiver must be by a "legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver." Gilbert, supra, 264 Ga. at 748, 452 S.E.2d 476.

Appellee suggests for the first time in his appellate brief that the Coffee County School District waived sovereign immunity to the extent that liability insurance was purchased covering the damages at issue. See Gilbert, supra; OCGA § 20-2-991. Despite the fact that the 1991 amendment eliminated the constitutional provision that sovereign immunity was waived to the extent of liability insurance protection, the Supreme Court in Gilbert, supra, concluded that the county's purchase of liability insurance pursuant to OCGA § 33-24-51 constituted a waiver of sovereign immunity because OCGA § 33-24-51(b), which states that "governmental immunity shall be waived to the extent of the amount of insurance so purchased," provides both a waiver of sovereign immunity and the extent of such waiver as contemplated by the 1991 amendment. By contrast, the provisions of OCGA § 20-2-991 concerning the purchase of liability insurance covering the school district do not provide for a waiver of sovereign immunity as contemplated by the 1991 amendment. In the absence of a waiver in compliance with the 1991 amendment, it is irrelevant that OCGA § 20-2-992, providing that the purchase of such insurance shall not be construed as a waiver of immunity, was declared unconstitutionally void. Thigpen, supra, 255 Ga. at 59, 335 S.E.2d 112; Gilbert, supra. In any event, the record in this case does not show that appellee raised the issue of insurance in the trial court and there is nothing in the record showing that liability insurance exists. See Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

Since there is no legislative act specifically providing that the sovereign immunity of the school district is waived and the extent of such waiver, the Coffee County School District is entitled to summary judgment on the basis of sovereign immunity.

Similarly, to the extent Hierling and Johnson...