Parker v. Wynn, A93A2565

• Decision Date: 19 November 1993
• Docket Number: No. A93A2565,A93A2565
• Citation: 438 S.E.2d 147,211 Ga.App. 78
• Parties: , 88 Ed. Law Rep. 415 PARKER v. WYNN.
• Court: Georgia Court of Appeals

Page 147

438 S.E.2d 147

211 Ga.App. 78, 88 Ed. Law Rep. 415

PARKER v. WYNN.

No. A93A2565.

Court of Appeals of Georgia.

Nov. 19, 1993.

Agnew, Schlam & Bennett, G. Michael Agnew, Columbus, for appellant.

Lewis, Taylor & Lee, John M. Taylor and Jeffrey M. Todd, La Grange, for appellee.

BLACKBURN, Judge.

On March 8, 1991, the appellant, Christopher Parker, by next friend brought this action against the Harris County School District and James Wynn, alleging that Wynn's negligent supervision of a high school classroom resulted in a permanent injury to Parker's right eye. The trial court eventually granted summary judgment for the School District and Wynn on the basis of sovereign or official immunity, and Parker appeals from that grant of summary judgment for Wynn.

It appears from the record that Wynn was a teacher in charge of a senior physical education class at Harris County High School. On November 18, 1987, written examinations were being administered to senior and freshmen physical education classes in the school gym. As the students reported to the gym, Wynn stood at the doorway instructing them not to change clothing. When the tardy bell rang, Wynn went to his office to retrieve his roll book and the test papers. While he did so, one of the senior students threw pecans at a group of freshmen students, striking Parker's right eye.

Although the action in this case was filed after the 1991 amendment of Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, the cause of action accrued prior to the effective date of that amendment. Accordingly, the 1991 amendment of that constitutional provision regarding sovereign immunity is inapplicable here, and sovereign immunity could still be waived to the extent of any liability insurance provided. Curtis v. Bd. of Regents etc. of Ga., 262 Ga. 226, 416 S.E.2d 510 (1992); Thigpen v. McDuffie County Bd. of Ed., 255 Ga. 59, 335 S.E.2d 112 (1985).

In moving for summary judgment, the school district established that it had not purchased liability insurance, and for that reason had not waived its sovereign immunity. Wynn, however, was insured under a private liability insurance policy issued to the Professional Association of Georgia Educators. It is undisputed that his alleged negligent supervision of his class constituted a discretionary act performed in the exercise of his official capacity as teacher, involving no wilfulness, malice, or corruption, for which he would enjoy immunity in the absence of a waiver. See Sisson v. Douglas County School District, 181 Ga.App. 77, 351 S.E.2d 272 (1986). The sole issue in this appeal thus is whether Wynn's private liability insurance resulted in a waiver of that immunity otherwise available to him. We conclude that it did not.

Prior to the 1991 amendment of Art. I, Sec. II, Par. IX of the Georgia Constitution, the defense of sovereign immunity was waived for tort claims against the State or its departments and agencies to the extent of any liability insurance coverage provided for such claims. However, nothing in that former constitutional provision authorized an individual to waive sovereign immunity for either the State or himself by purchasing private liability insurance covering his acts.

"Immunity from suit is a basic attribute of sovereignty. The sovereignty of the State is supreme, and to maintain that sovereignty the supremacy must also be maintained...." (Citation and punctuation omitted; emphasis...