BOARD OF COM'RS OF GLYNN COUNTY v. Johnson
311 Ga. App. 867
| Ga. Ct. App. | 2011Background
- Glynn County operates helicopters for mosquito control within Glynn County; a county helicopter sprayed in a St. Simons Island neighborhood in May 2005.
- Rodger M. Johnson alleged personal injuries and nuisance from inhaling sprayed chemicals; Pamela Johnson asserted loss of consortium.
- Plaintiffs sued the Glynn County Board of Commissioners in their official capacities; they argued the county’s sovereign immunity was waived by various means.
- The trial court denied the Board’s motion to dismiss; the Board appealed, arguing sovereign immunity barred the claims.
- The appellate court held the county’s sovereign immunity was not waived and the plaintiffs’ claims against the Board in official capacities must be dismissed.
- The court clarified there were no individual-capacity claims against Tony Thaw because he was not named as a party and no leave to amend was obtained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sovereign immunity bars the claims | Johnson contends waiver under insurance or other theory. | Glynn County immunity not waived; helicopter not a motor vehicle; ultra vires/abnormal danger do not waive immunity. | Sovereign immunity bars the claims; no waiver. |
| Whether OCGA § 33-24-51 waives immunity for a county helicopter | Insurance coverage should waive immunity. | Helicopter not a motor vehicle; statute does not apply; no waiver. | No waiver under OCGA § 33-24-51. |
| Whether the operation of the helicopter constitutes abnormally dangerous activity | Operation was reckless/ultra vires and should overcome immunity. | Immunity not waived by such arguments; constitutional requirement for a specific waiver. | No waiver via abnormally dangerous activity. |
| Whether nuisance claim survives sovereign immunity | Inverse condemnation nuisance exception allows recovery. | Personal injury due to nuisance barred by immunity. | Nuisance claim barred by sovereign immunity. |
| Whether Thaw was improperly considered an individual defendant | Thaw should be treated as individual-capacity defendant. | No named individual defendant; amendment lacking leave of court; claims against Thaw not permitted. | No individual-capacity claims against Thaw; no amendment. |
Key Cases Cited
- Gilbert v. Richardson, 264 Ga. 744 (1994) (official-capacity suits tantamount to against county; immunity applies)
- Lincoln County v. Edmond, 231 Ga. App. 871 (1998) (claims against boards barred by sovereign immunity)
- McCobb v. Clayton County, 309 Ga. App. 217 (2011) (waiver of immunity requires specific statute; strict standard for waiver)
- Glass v. Gates, 311 Ga. App. 563 (2011) (any motor vehicle for waiver requires roadworthy vehicle; helicopter not a motor vehicle)
- Pate v. Turner County, 162 Ga. App. 463 (1982) (motor-vehicle definition for immunity waiver; not applicable to non-road vehicles)
- Howard v. Gourmet Concepts Intl., 242 Ga. App. 521 (2000) (inverse condemnation and nuisance; sovereign immunity limits)
- Rutherford v. DeKalb County, 287 Ga. App. 366 (2007) (nuisance/inverse condemnation barred by immunity for personal injuries)
- Tolbert v. Crisp County Power Comm., 176 Ga. App. 856 (1985) (ultra vires acts pre-1991 constitutional limits; no immunity waiver)
- Ward v. Dodson, 256 Ga. App. 660 (2002) (official vs. individual capacity distinctions; pleading requirements)
- Valdosta Hotel Properties v. White, 278 Ga. App. 206 (2006) (amendment of parties requires leave of court; misnomer not sufficient)