Webb v. Hennessy, 57673

• Decision Date: 04 September 1979
• Docket Number: No. 57673,57673
• Citation: 257 S.E.2d 315,150 Ga.App. 326
• Parties: WEBB et al. v. HENNESSY.
• Court: Georgia Court of Appeals

Page 315

257 S.E.2d 315

150 Ga.App. 326

WEBB et al. v. HENNESSY.

No. 57673.

Court of Appeals of Georgia.

Argued April 10, 1979.

Decided May 29, 1979.

Rehearing Denied June 19, 1979.

Certiorari Denied Sept. 4, 1979.

Barnes & Browning, Roy E. Barnes, Marietta, Gregory C. Chastain, Smyrna, Thomas J. Browning, Marietta, for appellants.

Lokey & Bowden, Charles M. Lokey, Glenn Frick, Atlanta, I. J. Parkerson, Decatur, for appellee.

UNDERWOOD, Judge.

These damage actions arise out of an occurrence at Southwest DeKalb High School in which Curtis Webb, a minor, was injured due to the alleged negligence of Kenneth Hennessy, principal of the school and sole defendant, in allowing a dangerous condition to exist at the school under his direct supervision and control. The trial court granted his motion to dismiss, holding that the mantle of governmental immunity which shielded the Board of Education (Sheley v. Board of Public Education, 233 Ga. 487, 212 S.E.2d 627 (1975)) necessarily enveloped the board's agents and employees in its protective folds. ¹

We reverse. "At English common law public officials were routinely held personally liable for torts committed in the performance of their duty." McManis, Personal Liability of State Officials Under State and Federal Law, 9 Ga.L.Rev. 821 (1975). Whatever rules may have developed with respect to those functions variously called "quasi-judicial," "legislative," "discretionary," etc. (see Vickers v. Motte, 109 Ga.App. 615, 136 S.E.2d 77 (1964); Partain v. Maddox, 131 Ga.App. 778, 206 S.E.2d 618 (1974)), and whatever may be the rule with respect to those lawsuits against public officers in their official capacities which so unduly interfere with the sovereign functions of the state that they are deemed to be, in reality, suits against the state itself (Roberts v. Barwick, 187 Ga. 691(2), 1 S.E.2d 173 (1939)), "(a) suit against a State officer or agent as an individual is not one against the State. Consequently, where State officers or agents are sued personally, the suit is generally maintainable, whether it be at law or in equity, and whether it be to recover property wrongfully withheld from the true owner, or to recover damages for a breach of contract or in tort for an injury to person or property . . . This is true even though the State officers or agents, when thus sued personally, may seek to claim immunity from suit or an absence of liability because of alleged ownership by the State of the property involved, or because they may claim a performance of the questioned acts as officials acting under legal authority." Florida State Hospital v. Durham Iron Co., 194 Ga. 350, 353, 21 S.E.2d 216 (1942). Accord, Irwin v. Arrendale, 117 Ga.App. 1(2, 11), 159 S.E.2d 719 (1967) and cases collected; Perry v. Regents of University System, 127 Ga.App. 42, 43(2), 192 S.E.2d 518 (1972).

While we are cited no Georgia law on point, "(i)t appears to be the general rule that the immunity of school districts, school boards, or other agencies in charge of public schools ordinarily does not extend to their agents or employees, or other persons under contract with such public bodies, in the absence of a statute providing otherwise, at least in connection with ministerial matters." 57 Am.Jur.2d 107, Municipal,...