Harry v. Glynn County

• Decision Date: 01 June 1998
• Docket Number: No. S98A0374.,S98A0374.
• Parties: HARRY et al. v. GLYNN COUNTY et al.
• Court: Georgia Supreme Court

501 S.E.2d 196

269 Ga. 503

HARRY et al. v. GLYNN COUNTY et al.

No. S98A0374.

Supreme Court of Georgia.

June 1, 1998.

Robert P. Killian, Killian & Boyd, P.C., Brunswick, for Michael G. Harry, Exr., et al.

Terry L. Readdick, Richard Keith Strickland, Whelchel, Brown, Readdick & Bumgartner, W. Gary Moore, Brunswick, for Glynn County, Georgia, et al. BENHAM, Chief Justice.

Michael Harry sued Glynn County and Franklin Wallace, an employee of Glynn County, for damages arising from the death of Harry's wife. Ms. Harry collapsed in a restaurant and Wallace was the paramedic who responded to the call for emergency aid and unsuccessfully treated her and transported her to a hospital. After her death, Harry contended in his suit that Wallace had failed to provide the proper treatment to Ms. Harry, causing her death, and that Glynn County was liable as his employer. Glynn County and Wallace raised, among other defenses, governmental immunity and official immunity. The trial court granted the defendants' motion for summary judgment on their immunity defenses.

1. With regard to Glynn County's immunity, Harry attacks on two grounds the validity of Art. I, Sec. II, Par. IX, Ga. Const. 1983, which provides counties with the shield of governmental immunity: that it conflicts with earlier provisions of the Constitution, and that the ballot pursuant to which the Constitution was amended to add that paragraph was defective. Assuming solely for the purpose of resolving this issue that there is any conflict between Art. I, Sec. II, Par. IX, and any earlier constitutional provision, the first contention is controlled adversely to Harry by our holding in Copeland v. State, 268 Ga. 375(4), 490 S.E.2d 68 (1997), that an amendment will not be ineffectual or invalid merely because it conflicts with existing provisions. The second argument is controlled adversely to him by our decision in Donaldson v. Dept. of Transp., 262 Ga. 49(1), 414 S.E.2d 638 (1992), upholding the validity of the amendment against the same challenge.

Harry also asserts that if counties are cloaked with governmental immunity, it was waived in this case by the purchase of insurance covering "the negligence of ... employees arising from the use of a motor vehicle." OCGA § 33-24-51. He contends that the waiver applies because an ambulance was used to bring Wallace to the scene, because part of the diagnosis and treatment occurred while she was in the ambulance, and because it was used to transport Ms. Harry to a hospital. Whether an event arises from the "use" of a motor vehicle depends largely on the circumstances, and a bright-line definition is elusive. Roberts v. Burke County School Dist., 267 Ga. 665, 667, 482 S.E.2d 283 (1997). What is clear, however, is that the alleged negligence must involve the use of the motor vehicle. "The procurement of insurance under this statute does not constitute a waiver of sovereign immunity with regard to personal injury caused by the county's negligence, unless the negligence of its `officer, agent, servant, attorney, or employee' arises from the use of a motor vehicle. [Cits.]" Simmons v. Coweta County, 229 Ga.App. 550, 552, 494 S.E.2d 362 (1997). The alleged negligence in this case was Wallace's misdiagnosis and failure to use defibrillation, acts which did not involve the use of the ambulance. Indeed, Wallace's treatment of Ms. Harry began where she collapsed, and although she was moved to the ambulance and was transported in the ambulance, there is no evidence that the ambulance and its use played any part in Wallace's diagnosis or choice of treatment. Any negligence in his acts simply did not "arise from the use of a motor vehicle." Accordingly, we agree with the trial court that no waiver based on the purchase of insurance occurred in this case.

Since Harry's challenges to the constitutional provision for governmental immunity have no validity, the trial court was correct in holding that counties are afforded immunity from suit by that provision. Gilbert v. Richardson, 264 Ga. 744(2), 452 S.E.2d 476 (1994). Since there has been no waiver of that immunity, the trial court was correct in granting summary judgment to Glynn County. That being so, there is no need to decide whether, under the facts of this case, Glynn County was entitled to immunity under OCGA § 31-11-8, which provides immunity to those who provide ambulance services without remuneration.

2. The trial court held that Wallace was entitled to official immunity because any negligence on his part arose during the discretionary performance of his official duties. "[T]he 1991 constitutional amendment provides ... immunity for the negligent performance of discretionary acts...." Gilbert v. Richardson, supra at 753, 452 S.E.2d 476. Harry challenges the trial court's holding, contending that Wallace's actions were ministerial in that there was only one right way to treat Ms. Harry's condition. "Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case. [Cit.]" Woodard v. Laurens County, 265 Ga. 404(2), 456 S.E.2d 581 (1995). It appears from the undisputed evidence in this case that Wallace's duty in responding to the emergency involved here was first to ascertain the condition of the patient, then to provide the...