Holloway v. Dougherty County School System

• Decision Date: 08 January 1981
• Docket Number: No. 60556,60556
• Citation: 277 S.E.2d 251,157 Ga.App. 251
• Parties: HOLLOWAY v. DOUGHERTY COUNTY SCHOOL SYSTEM et al.
• Court: Georgia Court of Appeals

Page 251

277 S.E.2d 251

157 Ga.App. 251

HOLLOWAY v. DOUGHERTY COUNTY SCHOOL SYSTEM et al.

No. 60556.

Court of Appeals of Georgia.

Jan. 8, 1981.

Rehearing Denied Jan. 29, 1981.

Mary M. Young and Laronce Beard, Albany, for appellant.

Jessie Walters, Albany, for appellees.

CARLEY, Judge.

Appellant, plaintiff below, was injured when a milk crate on which she was standing to drink water from a fountain overturned. The incident occurred on the premises of the Madison Elementary School in Dougherty County. Appellant filed suit by next friend against the Dougherty County School System and, in both their individual and official capacities, against the members of the County School Board, the superintendent of the County School System and the principal of the Madison Elementary School. Appellant's complaint alleged that certain "acts and omission(s), which were wilful and intentional, of the (appellees)" proximately caused her injuries. The appellees moved to dismiss the complaint under Code Ann. § 81A-112(b)(6) for failure to state a claim upon which relief could be granted. A hearing was held and the trial court granted the appellees' motion to dismiss the complaint. This appeal is from that judgment.

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, 438-439, 185 S.E.2d 908 (1971). It applies to boards of education. Sheley v. Bd. of Public Ed., 233 Ga. 487, 212 S.E.2d 627 (1975). "The sovereignty of the State is supreme, and to maintain that sovereignty the supremacy must also be maintained, and to do that the State must never be subjected to suit without its expressed consent." Roberts v. Barwick, 187 Ga. 691, 694(1), 1 S.E.2d 713 (1939). " '(T)he doctrine (of sovereign immunity) now has constitutional status, and applies, ..., to any "suit" involving claims for "injury" or " damage" against the state unless and until there is a waiver by Act of the General Assembly...' " Echols v. DeKalb County, 146 Ga.App. 560, 561, 247 S.E.2d 114 (1978). Appellant has cited us to no enactment of the General Assembly waiving the immunity of the Dougherty County School System from suits in tort, nor have we discovered such a statute. Indeed, the act of the General Assembly which created the Dougherty County School System provides specifically that "(t)he Dougherty County School System hereby created shall have power to sue, and be sued, but its object is declared to be governmental and shall not be liable to suit in actions arising ex delicto, except where specifically authorized by law." (Emphasis supplied.) Ga.L.1951, pp. 2233, 2242. Thus, rather than an express statutory waiver of the sovereign immunity of the County School System, there is an express reservation of immunity from suits in tort. It follows, therefore, that the trial court did not err in granting the motion to dismiss as to the Dougherty County School System. Sheley v. Bd. of Public Ed., 233 Ga. 487, 212 S.E.2d 627, supra.

Turning then to the motions to dismiss of the individual appellees and whether sovereign immunity extends to them, we begin with the proposition that "... where State officers or agents are sued personally, the suit is generally maintainable ..." Florida State Hospital v. Durham Iron Co., 194 Ga. 350, 353, 21 S.E.2d 216 (1942). However, "(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. (Cit.) ..., '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 a 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.' " Hennessy v. Webb, 245 Ga. 329, 330-331, 264 S.E.2d 878 (1980).

Applying the above stated rule to appellant's complaint against the individual appellees in their official capacities demonstrates no error in the dismissal of the suit against them in that capacity. No action can be "maintained against officials of the State in their official capacity without the consent of the State, for it is, in effect, a suit against the State. (Cits.)" McCoy v. Sanders, 113 Ga.App. 565, 570, 148 S.E.2d 902 (1966). There being no express waiver by the state of the immunity of the Dougherty County School System from suit, suits against the appellees in their official capacity as agents of that system are barred by sovereign immunity. Crowder v. Dept. of State Parks, 228 Ga. 436, 439(2), 185 S.E.2d 908, supra.

Therefore, the sole remaining question is whether appellant's complaint states a claim for relief against the individual appellees in their individual, as opposed to their official, capacities. As we interpret Hennessy, the exception to the general rule that state officers or agents sued in their individual capacities are not clothed with sovereign immunity is where "the acts complained of are done within the scope of the officer's (discretionary, quasi-judicial) authority, and without wilfulness, malice, or corruption." Hennessy, 245 Ga. at 331, 264 S.E.2d 878, supra. In the instant case, the acts and omissions complained of installation, maintenance and supervision of the water fountains on school premises are clearly, under Hennessy, "discretionary." "Boards of education are charged with the duty of providing public education. The providing and maintenance of school buildings and facilities is done in furtherance of this duty." Hennessy, 245 Ga. at 332, 264 S.E.2d 878, supra. The only distinction between the complaint in the instant case and that in Hennessy is that here appellant's complaint alleges that the "discretionary" acts and omissions of appellees "were wilful and intentional," a circumstance which, under Hennessy, would remove the cloak of sovereign immunity which would otherwise insulate appellees from individual liability for acts and omissions. Thus, the dispositive inquiry can be stated as follows: Was appellant's motion to dismiss for failure to state a claim under Code Ann. § 81A-112(b)(6) properly granted when the complaint specifically alleges that the conduct of appellees constituting the averred proximate cause of appellant's injury was "wilful and intentional"?

It is of the greatest significance that the trial court's order terminating the case in favor of appellees was based upon a simple motion to dismiss for failure to state a claim upon which relief can be granted. There was no motion for summary judgment. Furthermore, the motion to dismiss was not converted into a motion for summary judgment because there was absolutely no evidence introduced. With these procedural circumstances in mind, we proceed to answer the inquiry. "Under the Civil Practice Act a motion to dismiss a complaint for failure to state a claim upon which relief may be granted should not be granted unless averments in the complaint disclose with certainty that plaintiffs would not be entitled to relief under any state of facts that could be proven in support of the claim." Hardy v. Gordon, 146 Ga.App. 656, 657, 247 S.E.2d 166 (1978). The allegations in appellant's complaint that the actions and omissions of the individual appellees were "wilful and intentional" are, without question, extreme. In addition to being extreme, the allegations are meager and conclusory. If the general averments of the complaint were submitted in affidavit form in opposition to a motion for summary judgment, they would be without sufficient probative value to rebut specific sworn testimony negating wilfulness and malice. However, "(w)hile conclusions may not generally be used in affidavits to support or oppose summary judgment motions (Cit.), conclusions may generally be pleaded under the Civil Practice Act. 'Under this "notice" theory of pleading it is immaterial whether a pleading states "conclusions" or "facts" as long as fair notice is given, and the statement of claim is short and plain.' (Cit.) '(T)he true test is whether the pleading gives fair notice and states the elements of the claim plainly and succinctly, and not whether as an abstract matter it states "conclusions" or "facts ".' (Cit.) '(T)here are no prohibitions in the rules against pleading conclusions and, if pleaded, they may be considered in determining whether a complaint sufficiently states a claim for relief. It is immaterial whether an allegation is one of fact or conclusion if the complaint effectively states a claim for relief.' 1 Kooman, Federal Civil Practice, 250. Accord, Davis & Shulman's Georgia...