Martin v. Georgia Dept. of Public Safety
Decision Date | 25 June 1987 |
Docket Number | No. 44194,44194 |
Citation | 357 S.E.2d 569,257 Ga. 300 |
Parties | MARTIN v. GEORGIA DEPARTMENT OF PUBLIC SAFETY, et al. |
Court | Georgia Supreme Court |
David W. Griffeth, Athens, Mark H. Johnson, Downing, McAleer & Gaskin, Savannah, J. Richardson Brannon, Gainesville, for appellant.
Robert E. Andrews, Cullen C. Larson, Gainesville, Michael J. Bowers, Atty. Gen., Neal B. Childers, Sp. Asst. Atty. Gen., Reid G. Kennedy, Kennedy and Kennedy, Marietta, for appellees.
James E. Goodman, F. Clay Bush, Stephen H. DeBaun, amici curiae.
In a case of first impression, we are called upon to re-examine the status of sovereign immunity in this state after the enactment of the 1983 Constitution, which provides for the waiver of sovereign immunity for the state or its agencies where liability insurance has been purchased. 1983 Ga. Const., Art. I, Sec. 2, Para. 9. The trial court granted summary judgment to the Department of Public Safety, Commissioner Hardison and State Patrolman D.E. Cochran. The plaintiff appeals.
State Patrolman D.E. Cochran initiated a high-speed chase to apprehend Charles Brewer, who was detected by Cochran to be speeding on Georgia Highway 400 in Lumpkin County. The subsequent chase covered 23 miles and two counties. It lasted 22 minutes and involved speeds in excess of 100 miles per hour, officers from three counties and the State Patrol. During the chase, Cochran was in radio contact with Alan Seabolt, a Lumpkin County Deputy Sheriff. The plan was that Seabolt would attempt to block an intersection ahead of Brewer and Cochran, thus ending the chase. At one point, Cochran requested Seabolt to hurry because Brewer was rapidly approaching the intersection in question. In that effort, Seabolt lost control of his car on a curve and crashed into a car driven by Martha Collins, knocking it down an embankment into a creek. She was killed, and her five-year-old grandson was rendered quadriplegic.
This tort suit was filed on behalf of the child against the Department of Public Safety, then Commissioner Hugh Hardison, State Patrolman D.E. Cochran, Lumpkin County Deputy Sheriff Alan Seabolt, his superior Sheriff Kenneth Seabolt, and Charles Brewer. Claims against Commissioner Hardison were bottomed on negligence and 42 USC § 1983, alleging failure to set out objective guidelines for high-speed chases and to train officers properly in that regard.
The Department, Hardison and Cochran argue that, notwithstanding the provisions of the 1983 Constitution, they are immune from the prosecution of this claim under the principle of sovereign immunity. We disagree.
Art. I, Sec. 2, Para. 9 of the 1983 Constitution provides that Thus, this section of the 1983 Constitution expresses the will of the people of this state that citizens injured by the actions of the state be compensated if insurance is available. Of course, the state is not required to provide insurance protection either through purchasing coverage from a private carrier or through the establishment of a self-insurance fund. But if it does either, the waiver operates and the proceeds of a self-insurance fund would stand on the same footing as those available from a policy issued by a private carrier. As pointed out by Justice Charles L. Weltner in his special concurrence in Toombs County, Georgia v. O'Neal, 254 Ga. 390, 393, 330 S.E.2d 95 (1985), [Emphasis in original.] Our duty is to honor that articulation of public policy.
1. We first decline the plaintiff's and amici's invitation to abolish the doctrine of sovereign immunity by judicial fiat. While under the 1983 Constitution this court may address the constitutionality of a constitutional provision as well as the constitutionality of other laws, 1983 Const. Art. VI, Sec. VI, Para. II, we find that present public policy has been clearly expressed by the passage of the very constitutional provision the contenders argue gives us the power to abolish it. Compare Clark v. State of Georgia, 240 Ga. 188, 240 S.E.2d 5 (1977); Sheley v. Board of Public Education for the City of Savannah, 233 Ga. 487, 212 S.E.2d 627 (1975). There can be no mistaking the intention to preserve the protection of the public purse through the doctrine of sovereign immunity except to the extent that insurance has been purchased.
2. We next consider the question whether after the passage of Art. I, Sec. II, Para. IX of the 1983 Constitution, the purchase of insurance for department employees under OCGA ch. 45-9 and OCGA § 45-9-40 results in a waiver of the sovereign immunity of the department itself and of the official immunity of the employees.
Before the 1983 constitutional amendment, Ch. 45-9, passed in 1977, provided for the purchase of liability insurance or establishment of a self-insurance fund: "... insuring or indemnifying such officers, officials or employees to the extent that they are not immune from liability against personal liability, for damages arising out of the performance of their duties or in any way connected therewith." Section 45-9-5 states: "Nothing in this article shall constitute a waiver of the immunity of the state from any action." Cases decided after the passage of these provisions clearly continued to uphold the sovereign immunity of the state and the official immunity of state employees. E.g., Hennessey v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980).
In Robinson v. City of Decatur, 253 Ga. 779, 325 S.E.2d 752 (1985), however, decided after the passage of the 1983 Amendment, but in which the cause of action had arisen before its enactment, a change in public policy was foreshadowed. There, now Presiding Justice Clarke, concurring specially in the face of three dissenters who would have applied the waiver retroactively, wrote: Id. at 780, 325 S.E.2d 752. This is the proper case. As Justice Weltner said in his dissent in the same case, "when there is no jeopardy to the public treasury, the traditional choice--either unrequited damage to an individual or reparations from the public treasury--no longer need be made."
In the case before us, the plaintiff asserts liability of the Department of Public Safety under principles of respondeat superior for the negligence of Cochran in initiating and continuing the pursuit of Brewer in reckless disregard of the safety of the public. Plaintiff additionally alleges negligence by the department in inadequately training and providing guidelines to its officers in order to minimize injuries in high-speed chases. That negligence is attributed to former Commissioner Hardison. The department admits that these employees are covered by a comprehensive general liability policy.
The comprehensive general liability trust fund includes the following pertinent provisions:
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