Weaver v. City of Statesboro, A07A2066.

• Decision Date: 24 October 2007
• Docket Number: No. A07A2066.,A07A2066.
• Citation: 653 S.E.2d 765,288 Ga. App. 32
• Parties: WEAVER et al. v. CITY OF STATESBORO et al.
• Court: Georgia Court of Appeals

288 Ga. App. 32

653 S.E.2d 765

WEAVER et al. v. CITY OF STATESBORO et al.

No. A07A2066.

Court of Appeals of Georgia.

October 24, 2007.

Jones & Smith, Julian B. Smith Jr., Brent C. Carter, Metter, for appellants.

Oliver, Maner & Gray, Patrick T. O'Connor, Savannah, Sam L. Brannen, Statesboro, for appellees.

BLACKBURN, Presiding Judge.

In this tort action for personal injuries and property damage arising from an auto collision, plaintiffs Lora Weaver, Richard Weaver, and Deal's Heating and Air appeal the grant of summary judgment to the defendants City of Statesboro (the City) and its police officer Richard Saxon, arguing that sovereign and official immunity did not bar their actions against the defendants. We hold that as to the action against the City, its purchase of liability insurance covering the incident waived its sovereign immunity for the officer's alleged negligence in running his patrol car into the plaintiffs' vehicle to the extent of its liability insurance coverage as authorized by OCGA § 33-24-51. Accordingly, we reverse the grant of summary judgment to the City. As to the action against the officer personally, we hold that official immunity barred that action because the undisputed evidence showed that he was exercising a discretionary function when he decided to rush to a congested intersection to direct traffic. Accordingly, we affirm the grant of summary judgment to the officer.

Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp.¹

So viewed, the evidence shows that on September 29, 2003, pursuant to an assignment received from his superiors, Officer Saxon (employed by the City) was driving his patrol car to a downtown intersection near a parade route to direct traffic. As he was about a mile from the intersection, the traffic on the road approaching the intersection was already backed up to where the officer was in his vehicle. Deciding that he needed to rush to the intersection to alleviate the obvious traffic problem and to prevent possible accidents that could arise from such traffic congestion, Officer Saxon pulled into the empty left lane (designed for traffic heading away from the downtown intersection) and accelerated toward the intersection at a speed of 45 mph, which exceeded the posted speed limit of 35 mph. Some evidence showed that he failed to activate his emergency lights and siren, as required by OCGA § 40-6-6(c).

At this point, Richard Weaver, who was on a cross street driving a van owned by Deal's Heating and Air (and in which his wife Lora Weaver was a passenger), stopped at a stop sign and then proceeded carefully from the cross street to make a left hand turn through a gap in the heavy traffic into the empty lane leading away from the downtown intersection. He looked in both directions, focusing particularly to his right to discern any traffic coming from the direction from which any traffic should have been coming in that lane. Neither he nor his wife saw or heard any traffic in the lane, and therefore Mr. Weaver proceeded into the lane, only to be struck by Officer Saxon's vehicle from the left, whose vehicle was traveling in the wrong direction in that lane.

The Weavers and the van owner sued the City and Officer Saxon for injuries and personal property damage caused by the collision. Citing sovereign and official immunity, the City and Officer Saxon moved for summary judgment, which the trial court granted. Plaintiffs appeal.

1. Sovereign immunity. We first address the summary judgment granted to the City. "The doctrine of sovereign immunity, also known as governmental immunity, protects all levels of governments from legal action unless they have waived their immunity from suit." Cameron v. Lang.² The Georgia Constitution provides that only the General Assembly may waive the immunity of municipalities by law, which has been interpreted to require a specific statute from the legislature in which that immunity is expressly waived. Ga. Const. of 1983, Art. IX, Sec. II, Par. IX. See Cameron, supra, 274 Ga. at 126(3), 549 S.E.2d 341; CSX Transp v. City of Garden City³ (cities enjoy sovereign immunity except to the extent such is expressly waived by the Georgia legislature via statute).

Pursuant to this constitutional provision, the General Assembly enacted OCGA § 36-33-1, which provides:

(a) Pursuant to Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia, the General Assembly, except as provided in this Code section and in Chapter 92 of this title, declares it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages. A municipal corporation shall not waive its immunity by the purchase of liability insurance, except as provided in Code Section 33-24-51 or 36-92-2, or unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy. This subsection shall not be construed to affect any litigation pending on July 1, 1986.

(b) 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.

Two of the waivers of a municipality's sovereign immunity as set forth in the statute (and in the statutes referenced therein) possibly apply here.⁴ They include the waiver of immunity to the extent that: (a) a city is negligent or performs other improper actions in the carrying out of its ministerial duties, which generally refer to proprietary functions as opposed to governmental functions (see Rutherford v. DeKalb County)⁵ (a city can be liable for functions that are "nongovernmental, i.e., within the proprietary or ministerial (rather than legislative or judicial) realm of a municipal corporation's powers"); and (b) a city purchases motor vehicle liability insurance as provided in OCGA § 33-24-51(a), with the city's being liable only to the extent of that insurance. Cameron, supra, 274 Ga. at 126(3), 549 S.E.2d 341.

(a) Governmental vs. ministerial distinction. With regard to the waiver of sovereign immunity as to ministerial functions (OCGA § 36-33-1(b)), a city "`is not liable for the negligence or misconduct of its officers in the performance of governmental functions,'" City of Atlanta v. Fry,⁶ but may be liable for negligence or misconduct of its officers in the performance of proprietary or ministerial functions. Rutherford, supra, 287 Ga.App. 366(1)(a), 651 S.E.2d 771(1)(a). In this regard, it is well-established that city police officers engaged in city police work are performing a governmental function to which this waiver of a city's sovereign immunity does not apply. See OCGA § 36-33-3 ("[a] municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law"); Fry v. City of Atlanta⁷ (the operation of a police department is function "governmental in nature"); Carter v. Glenn⁸ ("[t]he operation of a police department . . . is a discretionary governmental function of the municipality as opposed to a ministerial, proprietary, or administratively routine function") (punctuation omitted). Accordingly, regardless of whether Officer Saxon acted negligently or recklessly or for that matter with actual malice, the City has sovereign immunity as to Officer Saxon's actions in carrying out his police duties unless some other waiver applies. See Williams v. Solomon⁹ (regarding governmental functions, "the City would not be liable even if [the police officer] had committed an intentional tort").

(b) Liability insurance under OCGA § 33-24-51. A second waiver does apply here so as to waive the City's sovereign immunity to a certain extent. OCGA § 33-24-51(b) provides a waiver of a city's immunity even when the city is performing governmental or police functions. "That immunity may be waived . . . to the extent the City has purchased liability insurance to cover [Officer Saxon's] actions in operating his police car. OCGA § 33-24-51(b); City of Thomaston v. Bridges.¹⁰" Williams, supra, 242 Ga.App. at 810(3), 531 S.E.2d 734. See McLemore v. City Council of Augusta;¹¹ Ekarika v. City of East Point¹² (OCGA § 33-24-51(b) waives immunity even for police functions of city). Thus, the City "may be liable for [Officer Saxon's] negligence in performing [his] job to the extent the [C]ity has waived its governmental immunity through the purchase of liability insurance." Cameron, supra, 274 Ga. at 127(3), 549 S.E.2d 341. Notably, this waiver applies even if Officer Saxon acted only negligently (id.; cf. OCGA § 33-24-51(b)), and further applies even if Officer Saxon personally may be immune from liability under the doctrine of official immunity. Gilbert v. Richardson.¹³

OCGA § 33-24-51(a) authorizes a city to purchase liability insurance for personal injury or property damage arising by reason of the city's ownership, maintenance, operation, or use of any motor vehicle. It is undisputed that the City purchased motor vehicle liability insurance in the amount of $1 million through the Georgia Interlocal Risk Management Agency (GIRMA), which policy covered the collision here. Cf. OCGA § 36-85-1 et seq. The Supreme Court of Georgia has held that such insurance waives a city's sovereign immunity to the extent of the insurance (despite the provisions of OCGA § 36-85-20, which st...