Crowder v. Department of State Parks

Decision Date18 November 1971
Docket NumberNo. 26641,26641
Citation228 Ga. 436,185 S.E.2d 908
PartiesStephen Charles CROWDER v. DEPARTMENT OF STATE PARKS et al.
CourtGeorgia Supreme Court

Syllabus by the Court

The defendants are immune to suit for injuries sustained by a patron of one of the State's parks; and therefore the action was properly dismissed.

Swift, Page, Henkel & Chapman, Lee H. Henkel, Jr., Max R. McGlamry, Columbus, Johnson, Harper, Daniel & Ward, Cullen M. Ward, Frank M. Eldridge, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., Larry Ruskaup, Asst. Atty. Gen., Atlanta, for appellees.

GRICE, Justice.

Involved in this appeal is an action seeking damages for personal injuries sustained by a patron of one of the parks owned, operated and controlled by the State of Georgia.

The action was filed on behalf of Stephen Charles Crowder, by his father as next friend, in the Superior Court of Fulton County against the State of Georgia, the Department of State Parks of Georgia, its Director, and the Superintendent of Cloudland Canyon State Park.

The complaint, insofar as necessary to recite here, made the allegations which follow.

It averred that on a named date, the plaintiff, while lawfully a patron of the park, fell from a trail and suffered severe described personal injuries caused by statuted acts of negligence and nuisance of the defendants; that a claim on his behalf was filed with the Claims Advisory Board of the State of Georgia but no action was taken thereon; that the claim was also presented to the General Assembly of Georgia with no action being taken by the committees thereof; that he has exhausted all available remedies; and that unless the court takes jurisdiction he will suffer great injury without compensation therefor in direct violation of specified provisions of the United States and Georgia Constitutions.

By amendment, the complaint also alleged that the State has deprived him of his constitutional rights by claiming that it is immune to suit because it possesses sovereign immunity which it has not waived; that this would unconstitutionally deprive him of life, liberty and property without due process of law and equal protection of law under designated provisions of the United States and Georgia Constitutions and that he is deprived of his rights under other stated constitutional provisions.

The amendment added another count to the complaint, which incorporated by reference allegations of the original complaint. It further alleged that the plaintiff's father had entered into a contract with the State of Georgia which had benefited financially therefrom, ratified it, and had breached its warranties of reasonable safety of the premises; and that the plaintiff as third party beneficiary, had suffered consequential damages.

To the amended complaint the defendants interposed certain defenses, including failure of the complaint to state a claim upon which relief could be granted and sovereign immunity.

After a hearing the trial court entered an order which dismissed the action. It recited in essential part that 'there is no statute authorizing the suit against the State or its Department of State Parks and for this reason the case is dismissed so far as it proceeds against the State of Georgia or the Department of State Parks of Georgia, or (the other two defendants), as the court is of the opinion that the applicable rule is that the State may not be sued without its consent, the court being of the opinion that this court is not authorized to alter or vary this rule of law.'

From such order the plaintiff appealed to this court.

We ruled that his assertion that adherence to sovereign immunity violates and deprives him of certain constitutional rights actually involves mere application of unquestioned and unambiguous provisions of the Constitutions to a given state of facts, and for that reason the case did not come within the jurisdiction of this court under the Constitution. Accordingly, it was transferred to the Court of Appeals, 227 Ga. 143, 179 S.E.2d 231.

That court affirmed the trial court in Crowder v. Department of State Parks, 123 Ga.App. 793, 182 S.E.2d 512.

In doing so it held that it lacked power to abolish the doctrine of sovereign immunity, citing three of the numerous full bench decisions of this court asserting this doctrine.

It also ruled that 'The Department of State Parks is a part of the State Division of Conservation within the Executive Department which is by statute exempt from suit (Ga.L.1943, pp. 180, 184; Code, Ann. § 43-114) and cannot be sued for injuries received by one who fell and injured himself while using its facilities.'

We granted the plaintiff's application for certiorari.

As we view the issues now before us, the first ruling by the Court of Appeals, relating to sovereign immunity, is dispositive and therefore renders unnecessary determination of the second, pertaining to the statute as to the Department of State Parks.

1. This court has consistently held that a suit cannot be maintained against the State without its consent. See in this connection Southern Mining Co. v. Lowe, 105 Ga. 352, 31 S.E. 191; Western Union Telegraph Co. v. Western & Atlantic Railroad Co., 142 Ga. 532, 83 S.E. 135; Roberts v. Barwick, 187 Ga. 691, 1 S.E.2d 713; Barwick v. Roberts, 192 Ga. 783, 16 S.E.2d 867; Florida State Hospital for the Insane v. Durham Iron Co., 194 Ga. 350, 21 S.E.2d 216; Eibel v. Forrester, 194 Ga. 439, 22 S.E.2d 96; Peters v. Boggs, 217 Ga. 471, 123 S.E.2d 258; Cardin v. Riegel Textile Corp., 219 Ga. 695, 135 S.E.2d 284; Maddox v. Coogler, 224 Ga. 806, 165 S.E.2d 158; and James v. State, 225 Ga. 809, 171 S.E.2d 533; besides others.

2. This immunity applies not only to the State but to the other defendants, to-wit, the Department of State Parks of Georgia, its director, and the superintendent of the park involved here, since any judgment in favor of the plaintiff would have to be satisfied from assets of the State and the State itself would be bound by the judgment. See Roberts v. Barwick, 187 Ga. 691, 695, 1 S.E.2d 713, supra.

3. The plaintiff has requested that we review and overrule the full bench decisions of this court set forth in Division 1 and others recognizing this doctrine of sovereign immunity.

This request requires reference to some events preceding these decisions.

The doctrine of sovereign immunity was imbedded in the common law of England at the time of the American Revolution.

Georgia adopted this doctrine by virtue of its adoption of the common law of England by an Act of the General Assembly approved February 25, 1784 (Prince's 1837 Digest, p. 570; see also Cobb's 1851 Digest, p. 720).

In this connection, this court has held that 'The common law of force prior to May 14, 1776, was adopted as the law of this state by the act of February 25, 1784, except where modified by statutes or not adjusted to the conditions or system of government existing here.' Harris v. Powers, 129 Ga. 74(2), 58 S.E. 1038. See also Alexander v. Dean, 157 Ga. 280, 283, 121 S.E. 238. We point out here that the doctrine of sovereign immunity has not been modified by statute.

It does not, we unhesitatingly hold, violate either the State or Federal Constitution.

This doctrine has continued in force in this State since 1784.

Whether it should now be abrogated is a matter of public policy which addressed itself to the legislative, not the judicial, branch of our state government.

What was declared in Roberts v. Barwick, 187 Ga. 691, 694, 1 S.E.2d 713, 715, supra, applies with equal force here: 'If this is a harsh rule, and if it does not have the approval of the people of the State there is a definite way, a plan way, and a legal way, whereby it can be changed. This court has always held that the State could expressly consent to be sued. Therefore a very simple and brief enactment of the legislature giving this consent is all that is required in order to permit a suit against the State.'

It would serve no useful purpose to recite here the various arguments for and against the doctrine of sovereign immunity.

To overrule the ten unanimous decisions referred to above which recognize the doctrine in this State requires the unanimous vote of this court. Such a vote is lacking. Therefore the decisions are, upon consideration, affirmed.

In our study of this case we are impressed by the fact that the legislatures of many states have provided for Tort Claims Acts to cope with this problem. None has yet been enacted in Georgia.

4. There was no valid waiver here of sovereign immunity.

As to this the plaintiff contends that the Department of State Parks has consented to be sued because of its entering into a contract charging a rental on its cabin in the park in question.

This contention is not valid.

There was no statutory consent for the bringing of this suit, as is required. See, Western Union Telegraph Co. v. Western and Atlantic Railroad Co., 142 Ga. 532, 535, 83 S.E. 135, supra; Cannon v. Montgomery, 184 Ga. 588, 591, 192 S.E. 206; Anno. 160 A.L.R. 334; 15 A.L.R.2d 231; Peters v. Boggs, 217 Ga. 471, 123 S.E.2d 258, supra; Maddox v. Coogler, 224 Ga. 806, 165 S.E.2d 158, supra; and James v. State, 225 Ga. 809, 171 S.E.2d 533, supra.

5. We therefore hold that the complaint fails to set forth a claim for relief, either in tort, contract or for nuisance. In view of the full-bench decisions referred to above and the absence of any legislative consent for the suit, it appears, beyond any doubt, from the complaint that the plaintiff can prove no facts in support of his claim which would entitle him to relief, notwithstanding the liberalized notice pleading of the Civil Practice Act (Code Ann. § 81A-108(a)).

Judgment affirmed.

All the Justices concur, except NICHOLS, FELTON and HAWES, JJ., who dissent.

NICHOLS, Justice (dissenting).

I dissent from the holding as to sovereign immunity. While I recognize the numerous full bench ...

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