Rogers v. Sharpe, A92A1547

• Decision Date: 18 November 1992
• Docket Number: No. A92A1547,A92A1547
• Citation: 206 Ga.App. 353,425 S.E.2d 391
• Parties: ROGERS v. SHARPE et al.
• Court: Georgia Court of Appeals

Page 391

425 S.E.2d 391

206 Ga.App. 353

ROGERS v. SHARPE et al.

No. A92A1547.

Court of Appeals of Georgia.

Nov. 18, 1992.

Jimmy Rogers, pro se.

Michael J. Bowers, Atty. Gen., John C. Jones, Daryl A. Robinson, Sr. Asst. Attys. Gen., for appellees.

SOGNIER, Chief Judge.

Jimmy Rogers filed this pro se action against various state prison officials asserting a claim for personal injury arising from an allegedly hazardous condition at a prison that the defendants negligently or wantonly failed to correct. The trial court granted the defendants' motion to dismiss on the ground of official immunity, and Rogers appeals.

1. The trial court held that the negligent acts alleged in the complaint were discretionary activities and thus appellees were entitled to the defense of official immunity. See Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980). Appellant contends the question whether the acts were discretionary or ministerial is irrelevant because appellees waived their immunity to the extent of the liability coverage provided to them by the Department of Corrections. See Logue v. Wright, 260 Ga. 206(1), 392 S.E.2d 235 (1990). We agree and reverse.

Prior to a 1991 amendment, the Georgia Constitution provided that sovereign immunity of the State and its agencies and employees was waived to the extent of available liability insurance coverage. Ga. Const., Art. I, Sec. II, Par. IX (1983); see Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301-303(2), 357 S.E.2d 569 (1987). In response to appellant's requests for admission, appellees admitted that on the date of appellant's injury they "were afforded insurance coverage as employees of the [Department of Corrections] under DOAS FY91 State Employee Liability Policy." Contrary to appellees' contentions, the former insurance waiver provision of the Constitution, not the 1991 amendment, applies because appellant's claim arose on August 23, 1990, prior to the January 1, 1991, effective date of the 1991 amendment. Curtis v. Bd. of Regents, 262 Ga. 226, 416 S.E.2d 510 (1992). Accordingly, appellees' immunity was waived to the extent their insurance covers appellant's claim, Martin, supra, and this waiver was not withdrawn by the passage of the 1991 constitutional amendment. Curtis, supra at 228, 416 S.E.2d 510.

2. Appellant also contends the trial court erred in an earlier order by denying his motion for sanctions for appellees' failure to respond to his request for production of documents or to produce the documents in response to his motion to compel. In an order entered on December 19, 1991, the trial court denied appellant's motion to compel on the ground that appellees complied with the discovery before the hearing scheduled on the motion and denied his motion for sanctions on the basis that as a pro se litigant he had not incurred any fees or expenses.

The record reveals that appellant served a request for production of documents upon appellees on May 18, 1991, a motion to compel on June 24, and a motion for sanctions on October 31. Appellees did not respond to the document production request until December 13, five days prior to the scheduled hearing on appellant's motions. OCGA § 9-11-37(d)(1) authorizes the imposition of sanctions for the failure of a party to respond to a request for production of documents, and sanctions may be entered under this provision without the prior filing of a motion to compel. Bryant v. Nationwide Ins. Co., 183 Ga.App. 577, 578, 359 S.E.2d 441 (1987). As appellant correctly notes, " '[o]nce a motion...