Hennessy v. Webb

Decision Date27 February 1980
Docket NumberNo. 35331,35331
Citation264 S.E.2d 878,245 Ga. 329
PartiesHENNESSY v. WEBB et al.
CourtGeorgia 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.

CLARKE, Justice.

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, "It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that 'where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision; provided the acts complained of are done within the scope of the officer's authority, and without wilfulness, malice, or corruption.' " These discretionary acts ".. . lie midway between judicial and ministerial ones. The name of the public officer or officers is immaterial, and the question depends on the character of the act. If the act done for which recovery is sought is judicial or quasi-judicial in its nature, the officer acting is exempt from liability." 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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106 cases
  • Lathrop v. Deal
    • United States
    • Georgia Supreme Court
    • June 19, 2017
    ..., 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......
  • Ross v. Consumers Power Co.
    • United States
    • Michigan Supreme Court
    • January 22, 1985
    ...Inc. v. Roberts, 43 Del.Ch. 485, 238 A.2d 331 (Del.Super., 1967); Simon v. Heald, 359 A.2d 666 (Del., 1976); Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980); Kajiya v. Dep't of Water Supply, 2 Haw.App. 221, 629 P.2d 635 (1981); Vander Linden v. Crews, 205 N.W.2d 686 (Iowa, 1973); Neal ......
  • Thompson v. Spikes
    • United States
    • U.S. District Court — Southern District of Georgia
    • June 22, 1987
    ...demonstrated the difficulty encountered by courts in wrestling with the discretionary/ministerial distinction. See Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980) (the act or failure to act on the part of a school principal, in allowing a dangerous condition to exist on school grounds,......
  • Rupp v. Bryant
    • United States
    • Florida Supreme Court
    • July 15, 1982
    ...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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7 books & journal articles
  • Local Government Law - R. Perry Sentell, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 50-1, September 1998
    • Invalid date
    ...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.......
  • Local Government Law - R. Perry Sentell, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 49-1, September 1997
    • Invalid date
    ...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.......
  • "official Immunity" in Local Government Law: a Quantifiable Confrontation
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 22-3, March 2006
    • Invalid date
    ...For the former, the provision sanctioned negligence liability; for the latter, it did not.15 Rather, liability for official 9. 264 S.E.2d 878 (Ga. 1980). The case featured an injured high school student's action against the school principal for a fall allegedly caused by a rug and mat negli......
  • Local Government Law - R. Perry Sentell, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 54-1, September 2002
    • Invalid date
    ...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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