"official Immunity" in Local Government Law: a Quantifiable Confrontation

• Publication year: 2010

Georgia State University Law Review

Volume 22 j 5

Issue 3 Spring 2006

3-1-2006

"Official Immunity" in Local Government Law: A Quantifiable Confrontation

R. Perry Jr. Sentell

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Recommended Citation

Sentell, R. Perry Jr. (2005) ""Official Immunity" in Local Government Law: A Quantifiable Confrontation," Georgia State University Law Review: Vol. 22: Iss. 3, Article 5.

Available at: http://digitalarchive.gsu.edu/gsulr/vol22/iss3/5

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"OFFICIAL IMMUNITY" IN LOCAL GOVERNMENT LAW: A QUANTIFIABLE CONFRONTATION

R. Perry Sentell, Jr.*

Introduction

The local government can operate, of course, only through its officers, agents, and employees. Inevitably, negligence on the part of those actors occasionally results in injury or damage to others. When the disgruntled party seeks recovery from the local government itself, he frequently finds his effort thwarted by the ancient doctrine of "sovereign" (or "governmental") immunity.¹ In anticipation of that result, therefore, plaintiff may bring a complaint directly against the erring officer or employee, or at least may add that actor as an additional defendant. Plaintiffs obvious hope is that the negligent actor can be held liable, even when his principal or employer cannot.

In early English law that hope materialized: the officer or employee was forced to compensate for negligent acts done in the service of his governmental principal or employer.² That result, according to American scholars, was misguided: it operated as "an inverted pyramid" imposing liability upon "the financially weakest link in the chain," and "will often inhibit objective and fearless action

* Carter Professor of Law Emeritus, University of Georgia. Member, State Bar of Georgia.

1. For treatments of the local government's sovereign or governmental immunity, see R. perry Sentell, Jr., The Law of Municipal Tort Liability in Georgia (4th ed. 1988); R. Perry Sentell, Jr., Georgia Local Government Law's Assimilation of Monell: Section 1983 and the "New"

persons (1984); R. Perry Sentell, Jr., Claims Against Counties: The Difference a Year Makes, 36 mercer L. rev. 1 (1984); R. Perry Sentell, Jr., Georgia County Liability: Nuisance or Not?, 43 mercer L. Rev. 1 (1991); R. Perry Sentell, Jr., Georgia Municipal Tort Liability: Ante Litem Notice, 4 Ga. L. rev. 134 (1969); R. Perry Sentell, Jr., Local Government and Constitutional Torts: In the Georgia Courts, 49 mercer L. rev. 1 (1997); R. Perry Sentell, Jr., Local Government Liability: The "Crises" Conundrum, 2 Ga. St. U. L. Rev. 19 (1986); R. Perry Sentell, Jr., Local Government Tort Liability: The Summer of '92,9 Ga. St. U. L. Rev. 405 (1993).

2. For discussion, see R. Perry Sentell, Jr., Georgia Local Government Officers: Rights For Their Wrongs, 13 Ga. L. Rev. 747,747 (1979).

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and discourage responsible men from taking public employment." Reflecting such concerns, legal development eventually evolved various limitations upon the officer's personal liability. One of those limitations locked upon the concept of "official immunity," a concept rich in both semantics and substance.⁴

Official immunity reflects a somewhat ambiguous history, and its future, of course, bodes unforeseeable. Presently, however, the concept stands as a predominant confrontational issue in Georgia local government litigation. An effort at quantifying that litigation's inefficiency might prove beneficial to both bar and bench.

Part I of this Article provides a brief background of the evolution of official immunity law in Georgia.⁵ Part II examines the eight cases dealing with the concept of official immunity heard and decided by the Georgia Supreme Court from 1994 to 2004.⁶ Finally, Part m provides a survey of the official immunity cases heard by the Georgia Court of Appeals from 1994 to 2004, as well as a synopsis of the state of official immunity law based on those cases.⁷

I. Background

In early Georgia law, the local government officer's personal liability experienced a case-by-case evolution. Consequently, a patchwork of statutes and court decisions assured a sentiment for virtually every taste. This evolution combined with companion notions of liability insurance, indemnity, and the official bond to

Q

comprise an amorphous legal framework. The amalgamation served, nevertheless, as the law's erratic response to the issue for roughly a century.

3. Fleming James, Tort Liability of Governmental Units and Their Officers, 22 U. Chi. L. Rev. 610, 639 (1955).

4. For discussion, see R. Perry Sentell, Jr., Georgia Local Government Officers: Rights For Their Wrongs, 13 Ga. L. Rev. 747,747 (1979).

5. See infra Part 1.

6. See infra Part JJ.

7. See infra Part 111.

8. See Sentell, supra note 4, at 803.

2006] "OFFICIAL IMMUNITY" IN LOCAL GOVERNMENT LAW 599

In 1980 the Georgia Supreme Court seized undisputed control of the matter with its epic decision in Hennessy v. Webb.⁹ Under Hennessy, the officer's personal liability for negligence turned upon the complexion of his conduct.¹⁰ For "ministerial" functions, the officer's negligence yielded legal responsibility; for negligently performed "discretionary" functions, in contrast, the officer enjoyed immunity.¹¹ The appellate courts struck and re-struck this ministerial-discretionary balance with a confusing vengeance for roughly the next decade.¹² Indeed, perhaps it was the "hiatus of Hennessy" that posed the issue as an item for subsequent revisional reflection.

An amendment of January 1, 1991, rendered the official immunity concept a component of the Georgia Constitution:

[The local government officer] may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, [his] ministerial functions and may be liable for injuries and damages if [he] act[s] with actual malice or with actual intent to cause injury in the performance of [his] official functions.¹³

Thus, the amendment graphically evidenced the imprint of Hennessy's balancing approach to the subject—it appeared to divide the officer's conduct into "ministerial functions" and "official functions."¹⁴ For the former, the provision sanctioned negligence liability; for the latter, it did not.¹⁵ Rather, liability for official

9. 264 S.E.2d 878 (Ga. 1980). The case featured an injured high school student's action against the school principal for a fall allegedly caused by a rug and mat negligendy placed at the door of the building. Id. at 879.

10. Id. at 880.

11. Id. at 880. The court reasoned that the charged negligent activity was discretionary, not ministerial, on the part of the principal, and the defendant was entitled to immunity. Id at 880-81.

12. For discussion, see r. Perry Sentell, Jr., Individual Liability in Georgia Local Government Law: The Haunting Hiatus of Hennessy, 40 mercer L. rev. 27, 35 (1988).

13. Ga. Const, art. i, § 2, para. 9(d) (amended 1991). For treatment of this amendment in the context of both sovereign immunity for the local government and official immunity for the officer or employee, see r. Perry Sentell, Jr., Local Government Tort Liability: The Summer of '92, 9 Ga. St. U. l. rev. 405 (1993).

14. Id.

15. Id.

functions required "actual malice" or an "actual intent to cause injury.

Somewhat surprisingly, the constitution's new formulation languished tauntingly on the books, bereft of judicial consideration, for almost four years.¹⁷ Finally, in 1994 the Georgia Supreme Court decided Gilbert v. Richardson, a motorist's action for injuries suffered when colliding with a county deputy sheriff, alleging the deputy's negligence in responding to an emergency call. Taking explicit notice that it had "not previously considered the effect" of the 1991 amendment upon "official immunity,"¹⁹ the court proceeded to do so:²⁰ "[T]he 1991 amendment provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure. It

16. Id.

17. The Georgia Court of Appeals decided at least eight cases between the effective date of the 1991 amendment and the supreme court's first interpretation in 1994. Some of those cases arose before and some after the amendment, but none actually applied it. See Alford v. Osei-Kwasi, 418 S.E.2d 79, 85 (Ga. Ct. App. 1992) (holding official immunity prevailed where prison inmate sued law enforcement officer); McDay v. City of Atlanta, 420 S.E.2d 75, 77 (Ga. Ct. App. 1992) (finding official immunity prevailed in prisoner's action against police officers); City of Atlanta v. Chambers, 424 S.E.2d 19, 24 (Ga. Ct. App. 1992) (holding official immunity prevailed in injured party's action against public works commissioner); Parker v. Wynn, 438 S.E.2d 147, 149 (Ga. Ct. App. 1993) (finding official immunity prevailed in student's action against school teacher); Schmidt v. Adams, 438 S.E.2d 659, 660 (Ga. Ct. App. 1993) (holding official immunity prevailed in inmate's action against prison physician); Guthrie v. Irons, 439 S.E.2d 732, 736 (Ga. Ct. App. 1993) (finding official immunity prevailed in student's action against principal and teacher); Gilbert v. Richardson, 440 S.E.2d 684, 687 (Ga. Ct. App. 1994) (noting the new amendment but actually applying Hennessy and finding official immunity prevailed in motorist's action against a deputy sheriff); McLemore v. City Council of Augusta, 443 S.E.2d 505, 508 (Ga. Ct. App. 1994) (remanding motorist's action against police officer to determine whether the officer was performing a discretionary function).

18. 452 S.E.2d 476 (Ga. 1994)....