Hennessy v. Webb
| Decision Date | 27 February 1980 |
| Docket Number | No. 35331,35331 |
| Citation | 264 S.E.2d 878,245 Ga. 329 |
| Parties | HENNESSY v. WEBB et al. |
| Court | Georgia Supreme Court |
Lokey & Bowden, Glenn Frick, Robert Bleiberg, Atlanta, I. J. Parkerson, Decatur, for appellant.
E. Freeman Leverett, Elberton, amicus curiae.
Barnes & Browning, Roy E. Barnes, Thomas J. Browning, Gregory C. Chastain, Marietta, for appellees.
These actions raise the question of the personal liability of a school principal for alleged negligence in carrying out his duties while in the "legal custody and control" of the school premises. The negligence alleged is that defendant allowed a rug and mat to be placed at a door in the school. It is also alleged defendant had direct control and supervision of the act and knew or should have known of its danger. The suit is for injuries to a student sustained by falling into the door. The trial court, upon motion by defendant, dismissed the plaintiffs' actions finding no cause of action because of the defendant being clothed with governmental immunity. The Court of Appeals of Georgia, 150 Ga.App. 326, 257 S.E.2d 315 reversed this ruling and the cases are now before this court on writ of certiorari.
The doctrine of sovereign immunity has been recognized in this state since the adoption of the common law. Crowder v. Dept. of State Parks, 228 Ga. 436, 185 S.E.2d 908 (1971). It also applies to political subdivisions of the state, including counties Miree v. United States, 242 Ga. 126, 249 S.E.2d 573 (1973); state board of regents, Perry v. Regents of University System, 127 Ga.App. 42, 192 S.E.2d 518 (1972); and Boards of Education, Sheley v. Bd. of Public Ed., 233 Ga. 487, 212 S.E.2d 627 (1975). As was said in Hale v. Davies, 86 Ga.App. 126, 70 S.E.2d 923 (1952), at 129, 70 S.E.2d at 925: ". . . school boards, and other agencies or authorities in charge of public schools enjoy immunity from tort liability for personal injuries or death sustained by pupils or other persons in connection therewith, in the absence of a legislative enactment to the contrary, at least where only negligence was involved." The care and control of school property is the responsibility of the local school board. Code Ann. § 32-909. The operation of a school is a governmental function. Sheley v. Bd. of Public Ed., supra.
Taking the above authorities into account, there is no question of the governmental immunity of the board of education itself. The issue in this case is whether this immunity extends to an agent of the board carrying out its duties to provide public education by exercising custody and control over the school premises. At common law, public officers were held personally liable for their torts. See McManis, Personal Liability of State Officials Under State and Federal Law, 9 Ga.L.Rev. 821 (1975). This court held in Florida State Hospital v. Durham Iron Co., 194 Ga. 350, 353, 21 S.E.2d 216, 218 (1942), that ". . . where state officers or agents are sued personally, the suit is generally maintainable . . ."
A different rule prevails in instances where an officer or agent of the state is sued in his official capacity or where such officers are sued for acting in areas where they are vested with discretion and empowered to exercise judgment in matters before them.
"Any suit against an officer or agent of the State, in his official capacity, in which a judgment can be rendered controlling the action or property of the State in a manner not prescribed by statute, is a suit against the State" . . . and cannot be maintained without its consent. Roberts v. Barwick, 187 Ga. 691(2), 1 S.E.2d 713 (1939). In Partain v. Maddox, 131 Ga.App. 778, 206 S.E.2d 618 (1974), the court said at 781, 206 S.E.2d at 620-621, These discretionary acts It has been held that there is no liability on the part of a county commissioner in deciding when and how to work on roads because such a decision was discretionary. Vickers v. Motte, 109 Ga.App. 615, 137 S.E.2d 77 (1964). The selection of a dangerous school bus route by members of a board of education, even when made without a meeting and without resolution or other formality, was held to be a governmental act for which the members of the board could not be sued individually. Harrell v. Graham, 70 Ga.App. 178, 27 S.E.2d 892 (1943). A public works camp warden was held not to be liable for torts of convicts when it was alleged that he was negligent in permitting the convicts to roam the roads of the county without any guard. It was said that the warden was acting in his discretionary capacity and will not be liable unless guilty of wilfulness, fraud, malice or corruption; or unless he knowingly acted wrongfully and not according to his honest convictions of duty. Price v. Owen, 67 Ga.App. 58, 19 S.E.2d 529 (1942).
The plaintiffs here argue that the defendant enjoys no governmental immunity by reason of the fact that he is being sued as an individual and not in his official capacity and that his act in allowing an alleged hazardous condition to exist was ministerial as opposed to discretionary.
We cannot agree with these contentions. In their complaints, the plaintiffs positively allege ". . . at all times during the acts complained of in this complaint, defendant was principal of Southwest DeKalb High School and as such had the legal custody and control of the premises therein." Plaintiffs also allege ". . . defendant had allowed a condition to exist and continue at said Southwest DeKalb High School in that he allowed under his direct supervision and control a rug and mat to be placed at a door in the said high school." It is clear from these allegations the suits were...
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..., 228 Ga. at 439 (3), 185 S.E.2d 908. See also Gilbert v. Richardson , 264 Ga. 744, 745, 452 S.E.2d 476 (1994) ; Hennessy v. Webb , 245 Ga. 329, 329, 264 S.E.2d 878 (1980). Following its early adoption, the doctrine would persist in Georgia as a matter of common law for nearly two centuries......
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...damages to each member of a community could, however, be proximately caused by the negligence of an official. 18 Cf. Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980) (principal's decision to place rug at door discretionary); Pratt v. Robinson, 39 N.Y.2d 554, 349 N.E.2d 849, 384 N.Y.S.2d......
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...u. L. Rev. 405 (1993). 302. GA. const, art. I, Sec. II, para. LX(d). The leading decision on the issue remains, however, Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980). 303. An act that is "simple, absolute, definite," and "requiring merely the execution of a specific duty." See, e.g.......
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Local Government Law - R. Perry Sentell, Jr.
...U. L. rev. 405 (1993). 288. Ga. const, art. I, Sec. II, para. DC(d). The leading decision on the point remains, however, Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980). 289. An act that is "simple, absolute, definite," and "requiring merely the execution of a specific duty." See, e.g.......
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Local Government Law - R. Perry Sentell, Jr.
...851. 180. Id. at 182, 555 S.E.2d at 853. 181. Id. at 183, 555 S.E.2d at 853. 182. Id. at 182, 555 S.E.2d at 853 (quoting Hennessy v. Webb, 245 Ga. 329, 331, 264 S.E.2d 878, 880 (1980)). The court reversed the trial judge's refusal to grant defendants' motion for summary judgment. Id. at 183......
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Local Government Law - R. Perry Sentell, Jr.
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