Truelove v. Wilson
| Decision Date | 17 September 1981 |
| Docket Number | 61881 and 61882,Nos. 61880,s. 61880 |
| Citation | 285 S.E.2d 556,159 Ga.App. 906 |
| Parties | , 1 Ed. Law Rep. 1349 TRUELOVE et al. v. WILSON et al. DeKALB COUNTY BOARD OF EDUCATION et al. v. WILSON et al. WILSON et al. v. DeKALB COUNTY BOARD OF EDUCATION et al. |
| Court | Georgia Court of Appeals |
Glenn Frick, Robert P. Bleiberg, R. Daniel McGinnis, Atlanta, for appellants in no. 61880.
Lawrence S. Burnat, Atlanta, Gary M. Sams, Decatur, for appellees.
Gary M. Sams, Decatur, for appellants in no. 61881.
Lawrence S. Burnat, Glenn Frick, Robert P. Bleiberg, R. Daniel McGinnis, Atlanta, for appellees.
Lawrence S. Burnat, Atlanta, for appellants in no. 61882.
Gary M. Sams, Decatur, Glenn Frick, Robert P. Bleiberg, R. Daniel McGinnis, Atlanta, for appellees.
On September 19, 1979, Laura Wilson was fatally injured when a metal soccer goal fell and struck her as she knelt to tie her shoe during a physical education class at Chestnut Elementary School in DeKalb County. These appeals arise from the wrongful death action her parents brought against 15 defendants: the DeKalb County School District; the DeKalb County Board of Education; James Hinson, Superintendent of the DeKalb County School District; Harold Dennis, Assistant Superintendent of the DeKalb County School District; Wilburn Adams, Associate Superintendent of Business for the DeKalb County School District; Elmer Morrow, Director of Physical Education and Athletics of the DeKalb County School District's secondary school program; John W. Truelove, Frank B. Jernigan, Elizabeth Andrews, Ray Jackson, John I. Ramsey, David Williamson, and Joe Willingham, members of the DeKalb County Board of Education; Gerald Williams, Principal of Chestnut Elementary School; and Charles H. Henderson, physical education teacher at Chestnut Elementary School.
In their amended complaint the Wilsons sought recovery for wrongful death as well as punitive damages and damages for maintenance of a nuisance (the soccer goal). All the defendants answered the complaint and filed various defensive motions. Following a hearing, the trial court granted summary judgment to defendant Morrow as to the whole case, granted summary judgment to all defendants as to the nuisance and punitive damages claims, and denied all the remaining motions to dismiss and motions for summary judgment. In Case No. 61880, defendants Truelove, Jernigan, Andrews, Jackson, Ramsey, Williamson, Willingham, Hinson, Adams, Henderson, Williams, and Dennis appeal the denial of their motions for summary judgment. In Case No. 61881, the DeKalb County School District and the DeKalb County Board of Education appeal the denial of their motions to dismiss. In Case No. 61882, the Wilsons appeal the grant of summary judgment to all defendants on their nuisance and punitive damages claims.
1. The Wilsons' claim based on a nuisance theory is foreclosed by the Supreme Court's decision in Williams v. Ga. Power Co., 233 Ga. 517, 212 S.E.2d 348. The grant of summary judgment against the Wilsons on that count was not error.
2. The trial court was also correct in granting judgment against the Wilsons' claim for punitive damages. Such damages are not available in a wrongful death action. Roescher v. Lehigh Acres Dev., Inc., 125 Ga.App. 420, 188 S.E.2d 154.
3. The trial court's refusal to grant summary judgment to the DeKalb County Board of Education and the DeKalb County School District was error. Those defendants are entitled to the defense of sovereign immunity. Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878. The fact that plaintiffs alleged wilful and wanton negligence does not deprive those two defendants of that defense. Sheley v. Board of Public Ed. etc., of Savannah, 132 Ga.App. 314, 208 S.E.2d 126.
4. All the individual defendants in this case have pleaded the defense of sovereign immunity. It is apparent from the record that they all occupy the same position with regard to that defense as did the defendants in Hennessy v. Webb, supra; and Holloway v. Dougherty County School System, 157 Ga.App. 251, 277 S.E.2d 251: the acts or omissions complained of were discretionary and were in the defendants' official capacities. That being so, the defendants are immune so long as their acts were within the scope of their authority and were done without "wilfulness, malice, or corruption." Hennessy, supra.
The Supreme Court held in Hennessy that the plaintiffs failed to state a claim against the defendant because there was "no allegation that he acted wilfully, wantonly or outside the scope of his authority." Id., 245 Ga. p. 332, 264 S.E.2d 878. Following Hennessy, this court ruled in Holloway that the plaintiff there had stated a claim by alleging that the injurious conduct was "wilful and intentional." In their amended complaint, the plaintiffs in the present action have attempted to bring their case within the rulings above mentioned by employing, in various combinations, the words and phrases "wilful," "wanton," "reckless disregard," and "gross, wilful, wanton and reckless negligence." We do not find that effort to have been successful.
Once again, as this court did in Central of Ga. R. Co. v. Moore, 5 Ga.App. 562, 564, 63 S.E. 642, "we disapprove the use of the expression [wilful and wanton negligence]; for wilfulness and wantonness are so far the opposites of negligence as to make the expression 'wilful and wanton negligence' misleading ..." Notwithstanding this court's disapproval of the expression it has cropped up repeatedly. It was defined in Frye v. Pyron, 51 Ga.App. 613(3), 181 S.E. 142, as " 'that entire absence of care which would raise the presumption of conscious indifference,' or that It may be seen that, regardless of the use of the words "wilful and wanton," the concept being described in Frye is still negligence: it concerns a degree of care or absence thereof. Wilful and wanton conduct, on the other hand, has a different meaning: it is conduct "such as to evidence a wilful intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences ... as to justify the jury in finding a wantonness equivalent in spirit to actual intent." Hawes v. Central of Ga. R. Co., 117 Ga.App. 771, 772, 162 S.E.2d 14. The distinction between...
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