Waiver of Sovereign Immunity: an Analysis of Gilbert v. Richardson - Susan Hurt

• Publication year: 1996

Waiver of Sovereign Immunity: An Analysis of Gilbert v. Richardson

In Gilbert v. Richardson,¹ the Georgia Supreme Court addressed the issue of whether a county waives its sovereign immunity by purchasing liability insurance.² On September 1, 1991, Deputy Kathy Richardson responded to an emergency call and collided with Emma and Tommy Gilbert's vehicle. Both Gilberts were injured. The Gilberts brought suit against the Walker County Sheriff's Department, the sheriff, and a deputy sheriff. Plaintiffs alleged that Sheriff Millard, as the employer of the deputy sheriff, was liable for the acts of the deputy while she was acting within the course of her employment.³ Walker County's Georgia Interlocal Risk Management Association ("GIRMA") coverage agreement protected the county against motor vehicle liability.⁴ Through GIRMA, participating counties jointly purchase general liability, motor vehicle liability, or property damage insurance.⁵ The trial court granted Richardson's and Millard's motion for summary judgment. The court held that Walker County's participation in GIRMA did not waive the sheriff's sovereign immunity or the deputy sheriff's official immunity.⁶ The court of appeals affirmed.⁷ The Georgia Supreme Court granted certiorari to determine if the doctrines of sovereign and official immunity barred the action against two Walker County officials.⁸ The court held that official immunity barred the claims against Deputy Richardson but that the county and Sheriff Millard were liable to the extent of insurance.⁹

At the time of the American Revolution, sovereign immunity was a well-established doctrine in England's common law.¹⁰ By an act of the General Assembly on February 25, 1784, Georgia adopted England's common law, including its doctrine of sovereign immunity.¹¹ A 1974 amendment to the Georgia Constitution authorized the General Assembly to create a state court of claims to exercise jurisdiction over personal injury or property damage claims against the State of Georgia.¹² The provision for a state court of claims did not constitute a waiver of sovereign immunity; therefore, the doctrine of sovereign immunity continued to protect the state and its entities.¹³ In the 1980 case fof Hennessy v. Webb,¹ * the court held there was no question that sovereign immunity extended to the governmental unity itself: "The issue in this case was whether this immunity extended to an agent of the board carrying out its duties to provide public education by exercising custody and control over the school premises."¹⁵ In Hennessy a student slipped on a rug; the school principal was allegedly negligent for allowing a rug and mat to be in front of the door.¹⁶ The court upheld the common law rule that the nature of the public officials' acts determine whether an official is personally liable.¹⁷ The court explained that officials, "invested with discretion and . . . empowered to exercise [their] judgment" to perform their duties, are immune from liability provided the officers acted within the scope of their authority and "without willfulness, malice, or corruption."¹⁸ However, public officials are not immune when they fail to perform purely ministerial duties required by law.¹⁹ According to the facts, "[djefendant [was] alleged to have allowed a condition to exist which he knew or should have known was hazardous. This ... is an allegation that he negligently exercised his authorized discretion."²⁰ Plaintiffs did not allege the defendant acted wilfully or outside the scope of his authority.²¹ Therefore, the court held that the board of education and the school principal were protected from liability under the doctrine of governmental immunity.²² The General Assembly finally modified sovereign immunity in 1982.²³ Under the constitutional amendment, the state and the departments and agencies of the state waive sovereign immunity to the extent of liability insurance.²⁴ In Martin v. Georgia Department of Public Safety,²⁵ the supreme court construed the amendment and held that the police department and its officers were liable to the extent of liability insurance.²⁶ The insurance waived the officers' official immunity and the police department's sovereign immunity against vicarious liability for the acts of its employees.²⁷ In 1987, the General Assembly proposed another amendment "provid[ing] for the purchase of liability insurance protection for state officers and employees to protect them from personal liability arising from the performance of the duties of their office or employment . . . [without] waiv[ing] the defense of sovereign immunity or the defense of official immunity."²⁸ Voters defeated the amendment; thus, state officers and employees could not assert their official immunity against claims that were covered under liability insurance.²⁹ In 1990, voters ratified an amendment that vested the General Assembly with the exclusive right to waive sovereign immunity by an act specifically providing for waiver and the extent of such waiver.³⁰ The General Assembly exercised its right and waived the state's sovereign immunity against the tort actions specified in the Georgia Torts Claim Act.³¹ The Act lists twelve exceptions to state liability.³² Among these exceptions, the state shall not be liable for the acts or omissions of its employees while performing discretionary functions.³³ The Act contains a detailed statement of legislative intent.³⁴ The General Assembly explained that, unlike private entrepreneurs who voluntarily engage in activities, the state must provide certain services to the public.³⁵ Consequently, the state involuntarily faces certain liability exposures.³⁶ The General Assembly further explained that "state officers and employees [must] be free to act and to make decisions, in good faith, without fear of thereby exposing themselves to lawsuits and without fear of the loss of their personal assets."³⁷ Therefore, sovereign immunity was the general rule and state liability became a limited exception.

In Gilbert v. Richardson,™ the supreme court affirmed the trial court's ruling that official immunity barred all claims against Deputy Richardson, but the court reversed the trial court's ruling that sovereign immunity barred claims against the sheriff.³⁹ The court explained that official immunity protects governmental officers and employees.⁴⁰ The court interpreted the 1991 amendment to provide governmental officers and employees with immunity from personal liability when they negligently perform discretionary acts.⁴¹ Such employees work in positions that require them to make policy decisions or exercise discretion.⁴² The employees are not, however, immune from "ministerial [nondiscretionary] acts negligently performed...