Hennessy v. Webb, No. 35331

• Court: Supreme Court of Georgia
• Writing for the Court: CLARKE; All the Justices concur, except NICHOLS, C. J. and HILL; NICHOLS
• Citation: 264 S.E.2d 878,245 Ga. 329
• Parties: HENNESSY v. WEBB et al.
• Docket Number: No. 35331
• Decision Date: 27 February 1980

Page 878

264 S.E.2d 878 245 Ga. 329 HENNESSY
v.
WEBB et al. No. 35331. Supreme Court of Georgia. Argued Jan. 22, 1980.
Decided Feb. 27, 1980.

Page 879

[245 Ga. 332] 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.

[245 Ga. 329] 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 [245 Ga. 330] 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

Page 880

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 [245 Ga. 331] called a quasi-judicial officer, and when so acting he is usually...