Peach County School District v. Austin

• Decision Date: 20 June 2013
• Docket Number: A13A0625.,No. A13A0517,A13A0517
• Citation: 745 S.E.2d 293,322 Ga.App. 368
• Parties: PEACH COUNTY SCHOOL DISTRICT v. AUSTIN. Austin v. Clark et al.
• Court: Georgia Court of Appeals

322 Ga.App. 368

745 S.E.2d 293

PEACH COUNTY SCHOOL DISTRICT

v.AUSTIN.

Austin

v.Clark et al.

No. A13A0517, A13A0625.

Court of Appeals of Georgia.

June 20, 2013.

David A. Siegel, Columbus, for Peach County School District.

Francis H. Childs Jr., Jerry A. Lumley, Macon, for Austin.

McFADDEN, Judge.

Donna Austin filed a complaint seeking recovery for personal injuries allegedly sustained when she fell on a sidewalk as she was leaving a graduation ceremony at Peach County High School. She filed the lawsuit against the Peach County School District; Susan Clark, the Superintendent of Peach County Schools; C.B. Mathis, the Assistant Superintendent of Facilities of Peach County Schools; Bruce Mackey, the Principal of Peach County High School; and Chad Sanders, the Director of Maintenance of Peach County Schools. The defendants filed a joint motion to dismiss the complaint, asserting that the claims against the school district are barred by the doctrine of sovereign immunity and that the claims against the individual defendants are barred by the doctrine of official immunity. The trial court denied the motion to dismiss as to the school district, but granted the motion as to the individual defendants. In Case No. A13A0517, the school district appeals from the denial of its motion to dismiss; and in Case No. A13A0625, Austin appeals from the grant of the individual defendants' motion to dismiss. Because the claims against the school district are barred by the doctrine of sovereign immunity and the claims against the individual defendants are barred by the doctrine of official immunity, we reverse the judgment of the trial court in Case No. A13A0517 and affirm its judgment in Case No. A13A0625.

Case No. A13A0517.

1. Sovereign immunity.

The Georgia Constitution provides that “sovereign immunity extends to the state and all of its departments and agencies.” Ga. Const. 1983, Art. I, Sec. II, Par. IX(e); Gilbert v. Richardson, 264 Ga. 744, 746–747(2), 452 S.E.2d 476 (1994). This immunity extends to county school districts, like Peach County School District, because they are political subdivisions of the state. Harper v. Patterson, 270 Ga.App. 437, 438(1)(a), 606 S.E.2d 887 (2004); Coffee County School Dist. v. Snipes, 216 Ga.App. 293, 294, 454 S.E.2d 149 (1995). “Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the [s]tate, and the waiver must be established by the party seeking to benefit from the waiver.” Bomia v. Ben Hill County School Dist., 320 Ga.App. 423, 424, 740 S.E.2d 185 (2013) (citation omitted).

In this case, Austin argues that the Peach County School District waived its sovereign immunity by purchasing liability insurance. However, this very argument that “by having liability insurance the school district has waived sovereign immunity has been decided adversely to [Austin].” Dollar v. Dalton Public Schools, 233 Ga.App. 827, 828(1)(b), 505 S.E.2d 789 (1998) (citations omitted).

The Georgia Tort Claims Act provides for a limited waiver of the state's sovereign immunity for the torts of its officers and employees, but it expressly excludes school districts ... from the waiver. Although the 1991 amendment to Art. I, Sec. II, Par. IX does not restrict the legislature's authority to waive sovereign immunity to the Georgia Tort Claims Act, any such waiver must be by a legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver. We cannot find and appellant [ ] do[es] not cite us to any promulgated legislative act which specifically provides that the sovereign immunity of school systems has been waived and the extent of such waiver. Moreover, the provisions of OCGA § 20–2–991, authorizing the purchase of liability insurance by the board of control or education of various school systems and related educational institutions, do not provide for a waiver of sovereign immunity as contemplated by the 1991 constitutional amendment. There has been no waiver of [sovereign] immunity by the mere existence of the school system's liability policy.

Crisp County School Sys. v. Brown, 226 Ga.App. 800, 801(1), 487 S.E.2d 512 (1997) (citations and punctuation omitted). See also Coffee County School Dist., supra at 296, 454 S.E.2d 149 (since there was no legislative act specifically providing that the sovereign immunity of the school district was waived and the extent of such waiver, school district was protected from suit by sovereign immunity). Because Austin has failed to carry her burden of establishing that there was a waiver of sovereign immunity by the Peach County School District, the trial court erred in refusing to dismiss the claims against the school district on the basis of sovereign immunity. See Upper Oconee Basin Water Auth. v. Jackson County, 305 Ga.App. 409, 412(1), 699 S.E.2d 605 (2010) (motion to dismiss asserting sovereign immunity is based upon the trial court's lack of subject matter jurisdiction rather than merits of the complaint).

Case No. A13A0625.

2. Official immunity.

Austin contends that the trial court erred in finding that the claims against the individual defendants are barred by official immunity. We disagree.

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure.Cameron v. Lang, 274 Ga. 122, 123(1), 549 S.E.2d 341 (2001) (citations omitted). It is undisputed that the doctrine of official or qualified immunity applies to the employees of county-wide school districts. Cosby v. Lewis, 308 Ga.App. 668, 671(1), 708 S.E.2d 585 (2011). Moreover,...