Fulton Cnty. Sch. Dist. v. Jenkins

• Decision Date: 01 October 2018
• Docket Number: A18A0991
• Parties: FULTON COUNTY SCHOOL DISTRICT d/b/a Fulton County Schools or Fulton County School System v. JENKINS.
• Court: Georgia Court of Appeals

347 Ga.App. 448

820 S.E.2d 75

FULTON COUNTY SCHOOL DISTRICT d/b/a Fulton County Schools or Fulton County School System

v.JENKINS.

A18A0991

Court of Appeals of Georgia.

October 1, 2018

Melody P. Bray, Brandon Oliver Moulard, Atlanta, for Appellant.

John D. Steel, Atlanta, for Appellee.

Dillard, Chief Judge.

Fulton County School District d/b/a Fulton County Schools or Fulton County School System ("FCSD") appeals the trial court’s denial of its motion to dismiss a negligence action brought against it by Loretta Jenkins, as the guardian and natural grandmother of C. J. E., a minor. Specifically, FCSD argues that the trial court erred in finding that OCGA § 20-2-1090 waives its sovereign immunity from Jenkins’s suit. For the reasons set forth infra , we reverse.

The facts necessary to resolve this appeal are undisputed. On February 23, 2017, Jenkins filed this civil action against FCSD on behalf of her grandson, C. J. E., who is a special-needs middle school student. The complaint alleged that on February 24, 2015, C. J. E. boarded a FCSD school bus, but when the bus arrived at the school, the driver failed to ensure that C. J. E. exited the bus along with the other students. As a result, C. J. E. remained on the bus while the driver parked it in the school’s transportation-system parking lot for the evening, and the child was unwittingly locked inside by the driver. The complaint alleged that "[C. J. E.] was not found or located for hours, during which time he suffered physical and mental injuries, including being cold, scared and traumatized from the event and being detained and locked in the bus alone." To recover for these injuries, Jenkins asserted negligence claims on C. J. E.’s behalf against the bus driver and FCSD as her employer.¹

FCSD answered the complaint and asserted numerous affirmative defenses, including that Jenkins’s claims were barred by the doctrine of sovereign immunity. Along with its answer, FCSD also filed a motion to dismiss the complaint on sovereign-immunity grounds. Jenkins then filed an amended complaint, alleging, inter alia , that OCGA § 20-2-1090 requires school districts to have insurance policies covering school children, and OCGA § 33-24-51 (b), along with other Georgia statutes, waives sovereign immunity to the extent of that insurance coverage for incidents like the one involving C. J. E. Jenkins also filed a response to FCSD’s motion to dismiss, asserting similar arguments. Ultimately, the trial court concluded that OCGA § 20-2-1090 waives FCSD’s sovereign immunity for Jenkins’s claims. Thereafter, the trial court granted FCSD’s request for a certificate of immediate review, and this Court granted its application for an interlocutory appeal. This appeal follows.

In its sole argument on appeal, FCSD argues that the trial court erred in finding that OCGA § 20-2-1090 waives its sovereign immunity from Jenkins’s claims. We agree.

This Court reviews de novo a "trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law."² The trial court’s factual findings will, of course, be sustained if "there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity."³ With these guiding principles in mind, we turn now to FCSD’s specific claim of error.

As we have previously explained, sovereign immunity extends to the State and all of its departments and agencies, "including school districts."⁴ Further, it is well settled that 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."⁵

And it necessarily follows that "implied waivers of sovereign immunity are not favored."⁶ Furthermore, sovereign immunity is not "an affirmative defense that must be established by the party seeking its protection."⁷ To the contrary, immunity from suit is "a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver."⁸ Significantly, in the context of the sovereign-immunity doctrine, "statutes providing for a waiver of sovereign immunity are in derogation of the common law and thus are to be strictly construed against a finding of waiver."⁹ Lastly, the doctrine of sovereign immunity requires that "the conditions and limitations of the statute that waives immunity be strictly followed."¹⁰

And here, the trial court found that FCSD’s sovereign immunity from Jenkins’s claims is waived by OCGA § 20-2-1090, which provides:

The various school boards of the counties, cities, and independent school systems employing school buses are authorized and required to cause policies of insurance to be issued insuring the school children riding therein to and from school against bodily injury or death at any time resulting from an accident or collision in which such buses are involved.

The amount of such insurance shall be within the discretion of the respective boards.

First, the trial court found that C. J. E.’s injuries resulted from an "accident" within the meaning of the statute. Then, the court reasoned that, because OCGA § 20-2-1090requires —as opposed to merely authorizing—FCSD to maintain no-fault liability insurance covering school children while on school buses, the State waived sovereign immunity for Jenkins’s claims. And without citing any authority other than OCGA § 20-2-1090 ’s mandate that FCSD maintain certain insurance, the court concluded that "[t]he legislature intended for children to be covered from injuries sustained on school buses."

Setting aside that the plain language of OCGA § 20-2-1090 makes no mention of waiving sovereign immunity or the extent of such waiver,¹¹ Jenkins’s argument that the statute waives FCSD’s sovereign immunity as to her claims is foreclosed by our decision in Rawls v. Bulloch County School District.¹² In Rawls , a high-school student suffered various injuries, including a fractured skull

, when he was attacked by another student shortly after they exited a school bus.¹³ The injured student sued the school district, alleging that it negligently failed to protect him from a foreseeable attack.¹⁴ The trial court granted summary judgment to the school district, finding that it was entitled to sovereign immunity. Then, on appeal, this Court agreed.¹⁵ Similarly to Jenkins, the plaintiff in Rawls asserted that OCGA § 20-2-1090 waived the school district’s sovereign immunity, but we rejected that argument.¹⁶ In doing so, we explained that "[n]o bus was involved in a collision or accident in [the] case, and OCGA § 20-2-1090 says nothing about a waiver of sovereign immunity or the extent of any such waiver."¹⁷ In this case, assuming without deciding that C. J. E.’s injuries resulted from an "accident," as required by the statute, we are bound by Rawls ’s holding that OCGA § 20-2-1090 does not provide for a waiver of sovereign immunity or the extent of such immunity.¹⁸

In holding that OCGA § 20-2-1090 did not provide a waiver of sovereign immunity in Rawls , we contrasted that statute with OCGA § 33-24-51, which expressly provides for a waiver of sovereign immunity when a state entity purchases insurance to cover injuries arising from the ownership, maintenance, operation, or use of a motor vehicle by a state actor.¹⁹ Specifically, OCGA § 33-24-51 provides, in relevant part:

(a) A municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this state under its management, control, or supervision, whether in a governmental undertaking or not, and to pay premiums for the insurance coverage.

(b) The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in Code Section 36-92-2. Whenever a municipal corporation, a county, or any other political subdivision of this state shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties in an amount greater than the amount of immunity waived as in Code Section 36-92-2, itsgovernmental immunity shall be waived to the extent of the amount of insurance so purchased .²⁰

Indeed, unlike the statute at issue in this case, OCGA § 33-24-51 expressly provides for a waiver of sovereign immunity for injuries arising from the operation and use of a motor vehicle by a government actor, as well as for the specific extent of such waiver. And despite the trial court’s conclusion about the General Assembly’s "intent" for children to be covered for injuries sustained on school buses, if the General Assembly had actually "intended" to provide for a waiver of sovereign immunity in OCGA § 20-2-1090, as it did in OCGA § 33-24-51, it certainly knew how to do so. Consequently, we must presume that its failure to do so was a matter of considered choice.²¹

Jenkins’s central argument on appeal is that our decision in Coffee County School District v. King ,²² rather than Rawls , controls the outcome of this case. In King , the plaintiff, who was not a student, was injured when her car collided with a Coffee County school bus.²³ The King court addressed, inter alia , the interplay between OCGA § 33-24-51, set forth supra , and OCGA § 20-2-1090, the statute at issue in this case.²⁴ Distinguishing Rawls , the King court held that "[t]he critical fact in [ King ] [was] that a vehicular...