On August 2, 2007, Waynesboro police officer Jonathan Elliott, while conducting a routine patrol, drove his police cruiser into the back of an automobile being driven by Irenе
1. Appellant contends that the tort immunity for local government employees for situations covered by OCGA § 36-92-3 (a) is limited to only those covered situations in which the local government entity remains liable. Appellant claims that the phrase in OCGA § 36-92-3 (b) requiring that the government entity be substituted as the рarty defendant in a suit involving “an act for which the local government entity is liable” means that if the local government entity does not remain liable for the suit, or is adjudged to have a viable defense, then the local government entity no longer must be substituted as the defendant. As the City is no longer liable in the present case due to Appellant’s fаilure to send the requisite ante litem notice, she argues that substitution is no longer required and she should be able to bring suit against Elliott in his individual capacity.
However, the plain language of OCGA § 36-92-3 (a) states unequivocally that “[a]ny local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefor.” (Emphasis supplied.) The language in OCGA § 36-92-3 (b) parsed out by Appellant does not limit this immunity. The entire sentence in subsection (b) reads as follows:
In the event that the local government officer or employee is individually named for an act for which the local government entity is liable under this chapter, the local government entity for which the local government officer or employee was acting shall be substituted as the party defendant.
Once thе phrase pointed out by Appellant is read in context, the intent of subsection (b) becomes clear, which is that the government entity should be substituted as a party to a suit whenever one of its employees has committed “an act for which the local government entity is liable under this chapter.” The selected phrase is merely a description of when the government entity should replace the employee. If the government entity would not be liable under OCGA § 36-92-1 et seq., as where the employee cоmmitted the tort using an uncovered motor vehicle, then the government entity is not “liable under this chapter” and need not be substituted. There is nothing in OCGA § 36-92-3 (b) that purports to state that if a government entity is initially liable for the tort committed by its employee, but the plaintiffs suit against the government entity fails for any reason, the plaintiff can then bring suit against the individual employee. If this were true, then OCGA § 36-92-3 would provide no immunity at all for the employee, because any plaintiff could circumvent subsection (a) and bring a claim against the employee by intentionally failing in his claim against the government entity. Moreover, a plaintiff would always be allowed two attempts to prosecute the action succеssfully, as he could first sue the government entity and then could sue the employee if the first suit fails.
a settlement or judgment in an action or settlement on a claim brought pursuant to this chapter constitutes a complete bar to any further action by thе claimant against a local government officer or employee or the local government entity by reason of the same occurrence.
In the prеsent case, Appellant brought a claim pursuant to OCGA § 36-92-3, and the trial court granted summary judgment to the City. As Appellant has not enumerated this decision, it is final and provides a “complete bar” to any future suit brought by Appellant against the City or the employee and involving the tortious act at issue in this case. OCGA § 36-92-3 (d).
Finally, we can analogize OCGA § 36-92-3 to OCGA § 50-21-25, the tort immunity statute for state employees. Although this statute provides state employees with immunity from all torts committed during the course of employment as opposed to оnly torts involving the use of a covered motor vehicle, the language of the two statutes is remarkably similar. In cases involving tortious acts covered by OCGA § 50-21-25, this Court and the Court of Appeals have held that state employees cannot be sued individually. See
Harry v. Glynn County,
2. Appellant next contends that the construction of the statute applied by the trial court renders the statute unconstitutional because it violates the Georgia Constitution’s guaranty of the right to trial by jury by foreclosing entirely any remedy for Apрellant for her injuries arising out of the underlying tort. However, the General Assembly in OCGA § 36-92-3 did not eliminate the ability of Appellant to recover for her injuries but simply shifted the responsibility to рay damages in certain situations from the individual employee to the local government entity, which comports with the General Assembly’s general authority to modify common law rights of action.
Teasley v. Mathis,
Appellant also contends that OCGA § 36-92-3 as applied by the trial court is unconstitutional because, she alleges, it expands the personal immunity of governmental officers and employees in violation of the constitutional right to trial by jury. However, as discussed above, the statute at issue merely modifies the cause of action by shifting liability from the individual employee to the City. Therefore, the issue of immunity for the individual governmental employee is moot as Appellant’s constitutional right to a jury trial is satisfied by her ability to seek redress and recover from the City. That her ability to recover from the City is now foreclosed is due to her own failure to follow the requisite procedural rules and thus does not raise a constitutional issue.
Appellant’s final constitutional аrgument is that OCGA § 36-92-3
violates the right to trial by jury because recovery is limited to
Accordingly, we find that OCGA § 36-92-3 as applied by the trial court in the present case is constitutional.
Judgment affirmed.