Dollar v. Dalton Public Schools, A98A1350.

• Court: United States Court of Appeals (Georgia)
• Citation: 505 S.E.2d 789,233 Ga. App. 827
• Docket Number: No. A98A1350.,A98A1350.
• Parties: DOLLAR et al. v. DALTON PUBLIC SCHOOLS et al.
• Decision Date: 11 August 1998

505 S.E.2d 789
233 Ga. App. 827

DOLLAR et al.
v.
DALTON PUBLIC SCHOOLS et al

No. A98A1350.

Court of Appeals of Georgia.

August 11, 1998.

Certiorari Denied January 8, 1999.

Coppedge, Leman & Ward, Warren N. Coppedge, Jr., David L. McGuffey, Dalton, for appellants.

Kinney, Kemp, Sponcler, Joiner & Tharpe, F. Gregory Melton, Wayne E. Brooks, Jr., Dalton, for appellees.

JOHNSON, Presiding Judge.

Anna Dollar's mother ("Dollar") sued the Dalton Public School District and two childcare

505 S.E.2d 790

workers after Anna fell from playground equipment and broke her arm while attending an after-school childcare program on Dalton Public School premises. The school district moved for summary judgment based on sovereign immunity and the childcare workers moved for summary judgment based on official immunity. Dollar also moved for partial summary judgment. The trial court granted the defendants' motions for summary judgment and denied Dollar's motion. Dollar appealed to the Supreme Court of Georgia, raising several constitutional issues. The Supreme Court held that the constitutional issues raised involved application of well-settled principles and transferred the appeal to this Court. We affirm the judgment of the trial court

1. In several enumerations of error, Dollar argues that sovereign immunity does not apply here because: (a) the after-school program is not a governmental function and is not covered by traditional notions of sovereign immunity; (b) sovereign immunity has been waived to the extent of insurance; (c) a special relationship exists between the school district and Dollar; (d) the school district maintained a nuisance; and (e) sovereign immunity does not prevent collection of damages from insurance proceeds.

( [233 Ga. App. 828] a) We disagree with Dollar's claim that the after-school program, for which she paid a fee, is not public education or a governmental activity and therefore the school district, like any private childcare provider, is not entitled to sovereign immunity.

Our legislature has specifically recognized that programs operated by boards of education which provide care and supervision of school-age children outside of normal school hours serve an educational purpose, are necessary or incidental to public education and can be an integral part of the total school program offered by public schools in this state. OCGA § 20-2-65(a). The legislature has authorized boards of education to establish and operate such after-school programs. OCGA § 20-2-65(b). An after-school program operated by a school district in accordance with OCGA § 20-2-65, is therefore clearly a governmental activity serving an educational purpose. This enumeration is without merit.

(b) The question of whether by having liability insurance the school district has waived sovereign immunity has been decided adversely to Dollar. See Crisp County School System v. Brown, 226 Ga.App. 800, 802(1), 487 S.E.2d 512 (1997) (school systems do not waive sovereign immunity merely by purchasing liability insurance); Davis v. Dublin City Bd. of Ed., 219 Ga.App. 121, 123(3), 464 S.E.2d 251 (1995) (board of education entitled to summary judgment based on sovereign immunity despite existence of liability insurance coverage since no legislative act specifically provides that the board of education has waived sovereign immunity by purchasing liability insurance).

(c) Dollar's reliance on City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861 (1993), as authority for her argument that the school district had a special duty of care toward her, is misplaced. The Supreme Court of Georgia has held that the public duty doctrine adopted in City of Rome does not apply outside of the police protection context. Hamilton v. Cannon, 267 Ga. 655(1), 482 S.E.2d 370 (1997). Compare Coffey v. Brooks County, 231 Ga.App. 886, 887(1), 500 S.E.2d 341 (1998).

(d) Dollar argues that the playground...