The instant case arises out of Glynn County’s use of a helicopter for mosquito control. Rodger M. Johnson filed this personal injury and nuisance suit against the Board of Commissioners of Glynn County, alleging that he sustained personal injuries after breathing chemicals that were sprayed by thе helicopter. His wife, Pamela Johnson, asserted a claim for loss of consortium arising from her
“In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff.” (Citations, punctuation and footnote omitted.)
Roberson v. Northrup,
So viewed, the complaint shows that Glynn County operates helicopters that spray for insects and mosquitoes within the boundaries of the county. In the early morning hours of May 27, 2005, a county-operated helicopter was spraying chemicals in a neighborhood on the north end of St. Simons Island. Mr. Johnson was employed by a construction company and was working outside in the neighborhood at the time. According to Mr. Johnson, he attempted to warn the helicopter of his presence as it flew ovеrhead, but it nevertheless made several low passes over the area where he was working, where it sprayed “noxious and dangerous chemicals” down on him and others.
Mr. Johnson claims that as a result of his exposure to the chemicals, he suffered “severe and рermanent injuries to his lungs.” Consequently, he commenced this personal injury and nuisance action against the members of the Board of Commissioners of Glynn County in their official capacities, and his wife asserted a claim for loss of consortium. The plaintiffs alleged that the helicopter was being operated by an employee or agent of Glynn County and that they were entitled to damages for their injuries.
1. The Board of Commissioners contends that the trial court erred in failing to dismiss the complaint because the plaintiffs’ personal injury and nuisаnce claims were barred by sovereign immunity. We agree.
A suit against members of a county board of commissioners in their official capacities is tantamount to a suit against the county itself. See
Gilbert v. Richardson,
As provided in Georgia’s [Constitution, sovereign immunity extends to the counties, and a county’s sovereign immunity “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). See also OCGA § 36-1-4 (“A county is not liable to suit for any cause of action unless made so by statute.”). Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and, therеfore, whether a governmental defendant has waived its sovereign immunity is a threshold issue. A waiver of sovereign immunity must he established by the party seeking to benefit from that waiver.
(Citations, punctuation and footnotes omitted.)
McCobb v. Clayton County,
(a) In the trial court, the plaintiffs contended that Glynn County waived its sovereign immunity under OCGA § 33-24-51 by purchasing a liability insurance policy covering the mosquito control helicopter. We disagree.
A municipal corporation, a cоunty, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this state under its management, control, or supervision, whether in a governmental undertaking or not, and to pay premiums for the insurance coverage.
(Emphasis supplied.) In its current form, 2 subsection (b) of OCGA § 33-24-51 then provides that sovereign immunity is waived where a local government purchases insurance on “any motor vehicle” as authorized in subsection (a) of the statute, if the insurance covers “the negligencе of any duly authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties in an amount greater than the amount of immunity waived as in Code Section 36-92-2.” 3
Here, however, Glynn County’s purchase of liability insurance did not waive its sovereign immunity under OCGA § 33-24-51 because a helicopter is not a “motor vehicle” as that term is understood in the statute. As we recently held, “any motor vehicle” as used in the current version of OCGA § 33-24-51 refers to a vehicle that (1) is capable of being driven on the public roads and (2) is cоvered by a liability insurance policy purchased by the local government entity.
Glass v. Gates,
(b) The plaintiffs further contended that sovereign immunity did not bar their claims because operation of the mosquito control helicoptеr was an abnormally dangerous activity for which strict liability applied; Glynn County acted in reckless disregard for the safety of others in authorizing the helicopter to spray the neighborhood area; and Glynn County’s decision to authorize the operation of the helicopter was ultra vires. But none of these contentions provide a basis for waiving the sovereign immunity of a local government; rather, as previously noted, under the Georgia Constitution, immunity “can only be waived pursuant to a legislative act which specifically provides thаt sovereign immunity is waived and [describes] the extent of such waiver.” (Citation and punctuation omitted.)
Woodard v. Laurens County,
(c) Lastly, the plaintiffs contended in the trial court that sovereign immunity did not bar their nuisance claim. “A county may
For the reasons explained in Division 1 (a)-(c), the plaintiffs did not carry their burden of showing that Glynn County waived its sovereign immunity with regard to its operation of the mosquito control helicopter. It follows that the trial court erred in failing to dismiss the plaintiffs’ claims against the members of the Board of Commissioners in their official capacities on sovereign immunity grounds.
2. In their appellate brief, the plaintiffs proceed with their argument as if Tony Thaw, a former Glynn County Commissioner, is a party to this litigation in his individual capacity. According to the plaintiffs, Mr. Thaw acted in an ultra vires manner and for personal profit by ordering the use of the helicopter for mosquito control on the day in question. As such, the plaintiffs allege that he is not entitled to official immunity and that they should be permitted to proceed with their damages claims against him individually, even if their claims against members of the Board of Commissioners in their official capacities should have been dismissed. The plaintiffs’ assertions are without merit because the record shows that they never sued Mr. Thaw in his individual capacity.
We have stressed that there is a “big differencе” between an official capacity suit and an individual capacity suit. See
City of
Atlanta v. Harbor Grove Apts.,
In determining whether a defendant has been sued in his official or individual capacity, courts must look to the cоmplaint and the course of proceedings, mindful that “in general, plaintiffs have a duty to make plain who they are suing and to do so well before trial.” (Citation and punctuation omitted.)
Ward,
In reaching this conclusion, we note that the plaintiffs’ reference to Mr. Thaw as an individual defendant in their fifth brief in response tо the Board of Commissioners’s motion to dismiss did not serve to constructively amend their complaint to add him as a party to this litigation.
In order for an additional party to be added to an existing suit by amendment pursuant to OCGA § 9-11-15, leave of court must first be sought and obtained pursuant to OCGA § 9-11-21. The rеcord in this case makes it clear that leave of court to add a party to the existing case by amendment was never sought nor obtained.
(Punctuation and footnote omitted; emphasis in original.)
Valdosta Hotel Properties v. White,
Judgment reversed and case remanded with instruction.
Notes
Although interlocutory, the dismissal order is directly appealable under the collateral order doctrinе. See
Bd. of Regents &c. v. Canas,
OCGA § 33-24-51 was amended in 2002, and the amendments became effective on January 1, 2005. See Ga. L. 2002, p. 579, §§ 1, 5. Thus, the current version of the statute applies in the present case.
OCGA § 36-92-2 sets certain monetary limits for the mandatory waiver of sovereign immunity by local government entities fоr their operation of a “covered motor vehicle” as that term is defined in OCGA § 36-92-1.
The decision relied upon by the plaintiffs for the proposition that a county’s sovereign
immunity is waived for ultra vires acts,
Tolbert v. Crisp County Power Comm.,
We note that failing to name a defendant in his or her individual capacity is not a mere misnomer that can be corrected without leave of court under OCGA § 9-11-10 (a). “Correction of a misnomer . . . does not add a new and distinct party.” (Punctuаtion and footnote omitted.)
Valdosta Hotel Properties,