Local Government
| Publication year | 2022 |
Local Government
Russell A. Britt
Jennifer D. Herzog
Nick Kinsley
Jacob Stalvey O'Neal
Pearson K. Cunningham
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Local Government
Authors
Russell A. Britt, Jennifer D. Herzog, Nick Kinsley, Jacob Stalvey O'Neal, Pearson K. Cunningham, Stuart Sumner, Rebekah Ditto, and Philip E. Friduss
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In Gatto v. City of Statesboro,2 the Supreme Court of Georgia affirmed the Georgia Court of Appeals holding that municipalities are immune from liability for nuisance claims "based on alleged conduct related to property they neither own nor control."3 Sovereign immunity,4 therefore, applied to the plaintiffs' nuisance claim against the City of Statesboro for injuries and the alleged wrongful death of their son following his altercation with a bouncer at a bar on private property within the city.5
In reaching its conclusion, the supreme court recognized that its prior ruling in Town of Fort Oglethorpe v. Phillips6 "extend[ed] the nuisance doctrine to include personal injuries beyond those tied to the plaintiff's property," thereby enlarging the scope of municipalities' potential liability for nuisance.7 It nevertheless found that "no case has expanded the realm of municipal liability to cover injuries caused by property over which the municipality does not exercise dominion or control in some manner."8 The supreme court, therefore, held that the city "cannot be held liable for its discretionary decision not to act to abate a nuisance caused by a private party and maintained on private property."9
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Accordingly, the city was immune from liability as to the plaintiffs' nuisance claim.10
The supreme court also expressed some of its justices' "doubts about the legal foundations of Phillips, which also divorced municipal nuisance liability from its basis in [the Georgia] Constitution's Takings Clause."11 While it did not address these doubts and questions to resolve this case, the dicta signals that the court may have an interest in overturning Phillips in the future.12
While Phillips remains binding precedent for now, the court of appeals nevertheless distinguished it in City of Alpharetta v. Vlass.13 The case involved a nuisance claim against the city for injuries received in a motor vehicle collision.14 The complaint, as amended, alleged that the plaintiff was driving a school bus when a pickup truck turned left into the path of the school bus, causing a "t-bone" collision.15 The plaintiff argued that, because the city failed to prohibit left-hand turns at the subject intersection, "despite actual and/or constructive knowledge of the hazardous condition this created," the city permitted and maintained a nuisance.16
The court of appeals determined that the failure to prohibit left turns at the subject intersection "falls squarely within the line of cases in which our appellate courts have refused to further extend the expansion of Phillips,"17 involving the installation and then failure to maintain a defective traffic device.18 In contrast to Phillips and other similar
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precedent, it was not alleged in Vlass that the city had taken any action that created a nuisance at the intersection.19 Rather, it was only alleged that the city permitted a nuisance to exist by failing to prohibit left turns; there were no allegations that the city previously took "any action or asserted control of the intersection such that it had created a dangerous condition."20 Accordingly, the city could not be liable for a nuisance, and the court of appeals reversed the State Court of Fulton County's denial of the city's motion to dismiss.21 This result is consistent with state law providing that municipalities cannot be held liable for exercising their discretion in failing to perform an act where they are not required by statute to perform such an act.22
The holding in Atlantic Specialty Insurance Co. v. City of College Park23 resolved a long-standing dispute over whether insurance endorsements limiting coverage up to the statutory waiver cap, where sovereign immunity is found to apply, contravenes public policy.24 The supreme court held that they do not.25
The facts of the case involve individuals who were killed when their vehicle was struck by a stolen vehicle being chased by city police officers.26 At the time of the incident, the city had an insurance policy that provided coverage for negligent acts involving city motor vehicles up to $5,000,000 but also included immunity endorsements stating that the insurer had no duty to pay damages "unless the defenses of sovereign and governmental immunity are inapplicable."27 The parties agreed that Official Annotated Code of Georgia section 36-92-2(a)(3)28 automatically waives the city's sovereign immunity up to $700,000, regardless of whether the city has liability insurance. The plaintiffs asserted that the insurance policy limit was $5,000,000 for the three deaths involved, while the insurance company maintained that the policy limit was capped at $700,000 under the statutory scheme and terms of the city's policy.29
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The supreme court reversed the court of appeals in rejecting the plaintiffs' arguments.30 It held that "it is not against public policy for local government entities to decline to purchase liability insurance or to purchase liability insurance that does not cover any and all losses resulting from the use of their motor vehicles."31 The court further held that the insurance policy purchased by the city in this case did not apply above the $700,000 statutory waiver of immunity under a plain reading of the policy endorsements.32 Accordingly, the city had not purchased coverage above the automatic statutory waiver of sovereign immunity, and any liability was capped at $700,000.33 This holding enables local governments to continue purchasing insurance policies at a discounted premium by limiting coverage to incidents where immunity does not apply.
The consequences of the holding in Lathrop v. Deal34 continued with the supreme court's ruling in Riley v. Georgia Association of Club Executives.35 Since Gilbert v. Richardson,36 the court has held that claims against government officials in their official capacities are, in reality, claims against the government itself, which implicates sovereign immunity.37 The viability of official capacity claims was further limited in Lathrop where the court held that sovereign immunity bars declaratory and injunctive relief claims against the state, including challenges to a law's constitutionality under the Georgia Constitution.38 The court, however, determined that official immunity did not bar claims against government officials in their individual capacities for injunctive and declaratory relief.39 Individual capacity claims against government officials for declaratory and injunctive relief, therefore, became more prevalent as plaintiffs attempted to circumvent sovereign immunity.40
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In Riley, the plaintiff sued the State Revenue Commissioner in her individual capacity over the constitutionality of statutory provisions imposing an annual assessment on adult entertainment establishments.41 During the pendency of the case, the State Revenue Commissioner left her position for another role in state government.42 The supreme court held that because the defendant was no longer State Revenue Commissioner at the time the Superior Court of Fulton County entered its summary judgment order and final judgment, an injunction against her in her individual capacity could not give the plaintiff the relief sought.43 Plaintiff's claims against the former State Revenue Commissioner in her individual capacity therefore were moot.44 The holding in Riley reminds litigants that, where declaratory and injunctive relief is sought from a government official in his or her official capacity, the official's successor must be substituted as the defendant when the official leaves office during the pendency of the case.45 This result also highlights one of the challenges in bringing individual capacity claims for such relief.
While official immunity46 remains a viable defense for government officials and employees when sued in their individual capacities for personal injury claims, the fact-intensive inquiry on whether such immunity applies continues to be a challenge for disposing of claims at the pleading stage in state court.47 This remains challenging in light of the fact that "official immunity is not a mere defense but rather an entitlement not to be sued which must be addressed as a threshold matter before a lawsuit may proceed."48
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A wrongful death action was brought against the City of Monroe and a city police officer who shot the decedent in Summerour v. City of Monroe.49 The officer filed a motion for judgment on the pleadings contemporaneously with his answer, asserting official immunity based on the attached recording of aspects of the police encounter as captured by a second officer's body camera.50 The officer claimed that he was entitled to official immunity because "an injurious work-related act committed by an officer, but justified by self-defense, comes within the scope of official immunity," and under state law "a person who has committed a battery may assert [self] defense in a civil suit [against] the battery."51 The officer further contended that the recording attached to his motion established a reasonable belief a fake gun was real, among other things.52
The Superior Court of Walton County granted the officer's motion, but "[o]n appeal, [the plaintiff] contend[ed] that the grant of judgment on the pleadings was impermissibly based on factual determinations that the trial court derived from the...
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