Wilcox v. Fenn, 289 Ga. 750

On April 3, 2007, Wilcox and his son Milton were eastbound on Interstate 16 when Dougherty County police officers Fenn and Gilliam, driving separate police vehicles, rear-ended Wilcox causing loss of control and a crash that injured Wilcox and killed Milton.
Fenn and Gilliam were acting within the course and scope of their employment as Dougherty County police officers at the time of the collision.
Wilcox sued Fenn and Gilliam in their individual capacities for negligent operation of a vehicle.
On November 25, 2009, Wilcox moved for partial summary judgment on Fenn/Gilliam’s individual liability and on the constitutionality of OCGA § 36-92-3; Fenn and Gilliam separately moved for summary judgment based on immunity under OCGA § 36-92-3(a).
The superior court denied Wilcox’s motions, granted Fenn and Gilliam immunity, and held OCGA § 36-92-3 constitutional; Wilcox appealed arguing the statute is unconstitutional because it is outside the GTCA.
The Georgia Supreme Court held that OCGA § 36-92-3 is constitutional and that the legislature may waive sovereign immunity through statutes beyond the GTCA, citing Gilbert v. Richardson and upholding the trial court’s grant of summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OCGA § 36-92-3(a) is constitutional.	Wilcox asserts immunity must come only via the GTCA.	Fenn and Gilliam contend immunity is valid under the 1991 amendment and applicable beyond the GTCA.	Constitutional; immunity may be waived by non-GTCA statutes.
Whether the legislature could extend sovereign immunity to county officers outside the GTCA.	Gilbert limits immunity waiver to GTCA.	Legislature may waive immunity through any act clearly providing waiver and extent.	Authorized; 1991 amendment permits broader waivers including counties.
Whether the immunities apply to Fenn and Gilliam in this case.	Immunity should not bar Wilcox’s individual claims.	Immunity applies since officers were acting within official duties.	Immunity under OCGA § 36-92-3 applies.

Gilbert v. Richardson, 264 Ga. 744 (1994) (sovereign immunity may be waived by legislative acts beyond the GTCA)