Robinson v. City of Decatur

• Decision Date: 13 February 1985
• Docket Number: No. 41397,41397
• Parties: ROBINSON v. CITY OF DECATUR.
• Court: Georgia Supreme Court

Page 752

325 S.E.2d 752

253 Ga. 779

ROBINSON v. CITY OF DECATUR.

No. 41397.

Supreme Court of Georgia.

Feb. 13, 1985.

Teddy Ray Price, Decatur, for appellant.

Theodore Freeman, G. Randall Moody, Atlanta, for appellee.

MARSHALL, Presiding Justice.

This is an action by a minor, by next friend, against the City of Decatur, to recover damages for injuries sustained by her, at the age of six years, in her near drowning in the Glenn Lake swimming pool, which was owned and operated by the defendant municipality. The complaint was based on the theories of negligence and nuisance. The plaintiff appeals from the grant of the defendant's motion for summary judgment. We affirm.

1. OCGA § 36-33-1 provides: "Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable." It has been held uniformly in this state that the operation of public recreational swimming facilities, primarily for public benefit rather than for revenue producing, is a governmental function, so that the city is shielded from negligence claims by the doctrine of governmental immunity. Scott v. City of Millen, 153 Ga.App. 231(2), 265 S.E.2d 30 (1980) and cits. The appellant contends that this Code section is unconstitutional on its face and as applied, in that it violates the appellant's federal and state rights to equal protection of the law and due process of law, and enables a city to escape liability by merely passing an ordinance authorizing the operation of a swimming pool and declaring that it is for the benefit of the public at large, hence is a governmental function. However, it has been held that the statutory bar of sovereign immunity to suit in tort is not a deprivation of property without just compensation, nor a denial of either equal protection or due process under the federal or state constitutions. City of Cave Springs v. Mason, 252 Ga. 3, 310 S.E.2d 892 (1984); Williams v. Ga. Power Co., 233 Ga. 517, 212 S.E.2d 348 (1975); Azizi v. Bd. of Regents, 132 Ga.App. 384, 208 S.E.2d 153 (1974); City of Atlanta v. Mapel, 121 Ga.App. 567, 174 S.E.2d 599 (1970).

2. The evidence here was that the operation of the swimming pool was primarily for public benefit, thus making it a governmental function, so that the city is shielded from negligence claims by the doctrine of governmental immunity. The grant of summary judgment was correct with respect to the negligence claim.

3. The grant of summary judgment was correct as to the nuisance claim, because the factors set out in City of Bowman v. Gunnells, 243 Ga. 809, 811(2), 256 S.E.2d 782 (1979), did not exist here. The doctrine of attractive nuisance, discussed in Gregory v. Johnson, 249 Ga. 151, 289 S.E.2d 232 (1982), is not applicable, because that provides a standard of care of negligence, which does not apply in this sovereign immunity situation.

4. The purchase of general liability insurance by the municipality does not waive sovereign immunity. Winston v. City of Austell, 123 Ga.App. 183, 179 S.E.2d 665 (1971).

The grant of summary judgment in favor of the defendant municipality was not error.

Judgment affirmed.

All the Justices concur, except HILL, C.J., and SMITH and WELTNER, JJ. who dissent.

CLARKE J., concurs specially.

CLARKE, Justice, concurring specially.

I concur in the result reached by the majority because it is mandated by the laws of this state in effect at the time the cause of action arose, July 31, 1980. In my view the result would have to be different had the injury occurred on or after January 1, 1983, when Art. I, Sec. II, Par. IX, as designated in the 1983 Constitution, went into effect.

The sovereign immunity of municipal corporations, OCGA 36-33-1, is a codification of the holding of this court in Collins v. Mayor etc., of Macon, 69 Ga. 542 (1892). See History Section, OCGA 36-33-1; Vol. I, Preface, Code of Georgia, 1895; Sentell, Statutes of Non-statutory Origin, 14 Ga.L.Rev. 239 (1980). In Collins, this court held that a city was not liable in performing acts of a legislative or judicial nature "for they are deemed to be a part of the state's power, and, therefore, under the same immunity." Collins, supra at 544.

The Georgia Constitution as voted on and ratified by the citizens now provides a waiver of sovereign immunity of the state and its departments and agencies for claims covered by liability insurance. 1983 Constitution, Art. I, Sec. II, Par. IX. Constitutional principles and public policy would dictate that this waiver be applied to all sovereign immunity cases arising after the effective date of this amendment. However, the application of these principles and policies must wait until the proper case.

HILL, Chief Justice, dissenting.

On Thursday, July 31, 1980, six year old Cassandra Robinson was found in seven feet of water at the bottom of Glenn Lake swimming pool which is owned and operated by the defendant, City of Decatur. As a result of being submerged for approximately three minutes, Cassandra suffered brain damage and permanent loss of mental capacity. Due to her learning disability, Cassandra is unable to participate in the normal education program and she is enrolled in a special disabilities learning program. Although not...