S90G0231. LOGUE v. WRIGHT.
S90G0231
Supreme Court of Georgia
April 20, 1990
Rehearing Denied May 31, 1990
392 SE2d 235
Sutherland, Asbill & Brennan, Kimberly Logue Woodland, John H. Fleming, for appellee.
CLARKE, Chief Justice.
Wright sued Richmond County and Logue, a Richmond County deputy. Wright alleged that Logue caused a collision with Wright through negligent operation of his patrol car. It is undisputed that the county carried no liability insurance covering the incident. The trial court granted summary judgment to Richmond County but denied Logue‘s motion for summary judgment. Logue sought to appeal the denial of his motion for summary judgment. This appeal did not involve the grant of summary judgment to the county. The Court of Appeals granted an application for interlocutory review and then dismissed the appeal. Logue v. Wright, 193 Ga. App. XXX (1989). We accepted certiorari to decide the following questions:
A) In light of this court‘s decisions in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987), cert. denied 484 U.S. 998 (1988), and Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987), does the applicability of sovereign immunity still turn on the distinction between ministerial and discretionary acts of public officials?
B) Is a county required by
C) Is the Department of Risk Management of Richmond County, which is budgeted to compensate “claims against the county and its employees for which the county or its employees are legally responsible,” a self-insurance fund within the meaning of
1. Under this court‘s decisions in Martin and Price, supra, where there is a formal self-insurance plan or a policy covering official acts of a public official, sovereign immunity is waived. However, where there is no self-insurance fund, the distinction between ministerial and discretionary acts is still viable in ruling on immunity for public officials for liability for their negligent acts. It is important to keep in mind that the immunity is for negligent acts, not for malicious acts, acts of corruption, wilful acts, or acts involving reckless disregard for
Under Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), if Logue was acting in his official capacity he is immune from liability for negligent acts which were discretionary rather than ministerial. Logue argues that he was acting in his official capacity in responding to an emergency and that his actions were discretionary in nature. Logue insists that since he is being sued in his official capacity and since the complaint alleges mere negligence, he is entitled to summary judgment on the basis of sovereign immunity.
Appellee Wright relies upon the case of Crews v. McQueen, 192 Ga. App. 560 (385 SE2d 712) (1989), in which the Court of Appeals considered the question of sovereign immunity in the case of a child whose arm was broken during a paddling by a school principal. The majority held that summary judgment in favor of the principal was not appropriate in that case because a question of fact remained as to whether the punishment was within the sound discretion of the principal. The case is distinguishable from the present case because Crews was decided according to the provisions of
In the present case there was no dispute that Logue was answering a call regarding a fight when the accident occurred. He was not using his blue light or siren when he failed to yield the right-of-way to Mrs. Wright and caused the collision in question. Under
We agree that under the facts of this case the defendant had no discretion to violate the law by failing to activate his blue light and siren. In fact, we would subscribe to the proposition that the law does
2. Construing together
From the statutes construed, it is apparent that the legislature intended to require the state to purchase liability insurance to insure against liability for damages arising out of the operation of state vehicles. The state and its agencies are authorized to purchase insurance or formulate self insurance plans to insure officers and employees against liability for damages arising out of the performance of their duties. Counties and municipalities are authorized to procure insurance to insure officers and employees against liability for damages arising out of the performance of their duties. It is apparent that the statute authorizing this purchase does not require it. Toombs County v. O‘Neal, 254 Ga., supra, holds that under
The foregoing discussion leads us to the following analysis:
(1) OCGA § 45-9-40 requires the state to secure a blanket or group liability insurance policy covering its employees during the operation of any state owned motor vehicle. Thereis no corresponding requirement for counties. (2) OCGA § 45-9-1 authorizes the state or any of its agencies, boards, bureaus, commissions, departments or authorities to purchase policies of liability insurance or contracts of indemnity or to formulate sound programs of self-insurance as additional compensation for its employees. Subparagraph (c) of that section specifically excludes counties and municipalities from the section.(3) OCGA § 45-9-20 allows counties to purchase liability insurance covering their employees as additional compensation but grants no authority to provide a self-insurance plan.(4) OCGA § 45-9-21 allows counties to provide a legal defense to employees for certain legal actions but again makes no mention of a self-insurance program or any waiver of sovereign immunity.
From this, we can only conclude that the legislature has not empowered the counties to establish a self-insurance program.
3. Since the defense of sovereign immunity is available to Logue in the absence of liability insurance, and since the purchase of such insurance was discretionary, Logue is entitled to summary judgment unless Richmond County had liability insurance protecting him against liability. It is undisputed that Richmond County did not purchase a policy which would protect him. However, Wright contends that the Department of Risk Management of Richmond County, budgeted to compensate claims against the county and its employees, constitutes a self-insurance program which waives sovereign immunity. Logue insists that this fund cannot constitute a self-insurance fund which would waive immunity because
We hold that under the statutes dealing with liability insurance for government employees and officials, only state self-insurance plans will waive sovereign immunity. There is no provision for a county to set up a self-insurance plan. Therefore the fund established by Richmond County is not a self-insurance plan which will waive sovereign immunity.
Judgment reversed. All the Justices concur, except Smith, P. J., who dissents.
SMITH, Presiding Justice, dissenting.
The General Rule
1. As the majority acknowledges, Officer Logue had no discretion
Ministerial v. Discretionary Duties
2. I believe that duties can be discretional in nature and have within them ministerial duties that must be performed. I also believe that once an officer goes outside of the scope of his authority he has exceeded his discretion. In either case the officer should be held personally liable for his acts. The following from Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980), and Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 915) (1982), leads me to that conclusion. As this Court stated in Hennessy, supra, 245 Ga. at 330-31:
“It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that ‘where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous decision; provided
the acts complained of are done within the scope of the officer‘s authority, and without wilfulness, malice, or corruption.’ ” (Emphasis omitted.)
Only when an official is “invested with discretion and is empowered to exercise his judgment in matters brought before him[,]” is the official ”sometimes called a quasi-judicial officer. . . .” (Emphasis supplied.) Id. The officer in this case was not so “invested” or “empowered.” I can find no authority that would “invest” or “empower” any officer with discretion to disobey the law. While there are certain aspects of answering a call that may require discretion, no officer is “empowered” to disobey the law.
The decision as to whether duties are discretionary or ministerial is determined by the facts of the case. Nelson, supra, 249 Ga. at 336. Ministerial duties are those which must be performed without regard to the official‘s own judgment and must be performed in obedience to some specific external mandate. They are duties which the officer has no power or discretion to deviate from and they must be performed in the manner prescribed. Discretionary duties are those in which there are no specific mandates and in which the officer has power or discretion to interpret and judge the manner in which he will perform in a certain situation. Adherence to the law does not involve the exercise of discretion. Adherence to the law is a ministerial duty of the highest order.
Furthermore, the opinions of this Court indicate that the characterization of a duty must be determined by the nature of the act to be performed and not by the title of the official who is performing it. Not all of the acts of an official vested with discretionary powers are discretionary. In Nelson, id., Mr. York, Warden of the Spalding County Correctional Institute, had a duty to maintain and replace traffic control devices. Of course as Warden, Mr. York had broad discretion in many areas, just as an officer has broad discretion in many areas. That discretion, however, is properly limited by the ministerial duties that must be performed. Justice Clarke, writing for the majority in Nelson, id., stated:
The act of replacing and repairing signs is ministerial and not discretionary in its nature. Once York is notified that a sign is missing his duty is to replace it; this duty does not involve the exercise of a discretion on his part. The performance of this duty is, therefore, a ministerial act.
Mr. York may have had the discretion to decide who he would send out to replace the sign, however, it was not within his discretion to fail to replace it. Likewise, Officer Logue could exercise his discretion
Officer Logue, like all citizens, must obey the law. Nothing relieves “the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons.”
When Does An Issue of Fact Arise?
3. This opinion reverses the trial court‘s denial of Officer Logue‘s motion for summary judgment. However, in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 303-04 (357 SE2d 569) (1987), this Court refused to uphold the trial court‘s grant of summary judgment to a police officer who was answering a bona fide emergency call when he lost control of his car and crashed into another vehicle. The Court stated that
In construing
This Code section is but a modern expression of the doctrine . . . that arresting officers . . . have a broad scope of authority and freedom of action while in the performance of their very responsible functions.
We now refer to another doctrine of our law. That doctrine is that the protection of the person and property of the citizen is the paramount purpose of government. “Protection to person and property is the paramount duty of government and shall be impartial and complete.”
. . .
The legislature intended by the act to do two things: first, to give drivers of certain authorized emergency vehicles the right to travel when occasion required it at a speed in excess of the limit fixed by the statute applicable to motor vehicles generally; secondly, to protect the public on highways, and even those riding in the vehicles thus favored, from reckless disregard of their safety by drivers of these privileged vehicles.
. . .
It is desirable that the ambulance reach the stricken patient, that the fire engine proceed to and quench the fire, that the officer overtake and apprehend the criminal, but it is equally as important that innocent persons, whether or not connected with the emergency to be met, not be maimed or killed in the operation.
The statute was designed to give emergency vehicle drivers privileges when answering emergency calls, but it was also designed to protect the citizens of this state in the exercise of their rights to reasonable safety while traveling on the roads. The officer in this non-emergency situation knowingly ignored the law and caused a citizen personal injury and property damage that now she alone will have to bear.
The majority of this Court had decided that Officer Logue was merely negligently performing his duty. This decision has denied Ms. Wright her right to have a jury decide questions of fact; a role that is properly reserved for juries in our system of justice. Summary judgment was not appropriate in Crews v. McQueen, 192 Ga. App. 560 (385 SE2d 712) (1989) because a question of fact remained; likewise, summary judgment is not appropriate in this case. The question of fact in Crews was whether or not the principal was acting within the exercise of sound discretion as required by
Self-Insurance
4. The majority concludes that counties are forbidden from creating self-insurance funds because there is nothing in the statutes it cites that grants the power to create self-insurance and that
I believe this result is unconstitutional. It is generally known that commercial insurance rates have been soaring and that there are certain liabilities that commercial insurance will not cover. As a result counties and other governmental bodies have already diverted tax dollars into less expensive self-insurance. Today‘s holding denies the counties a valuable right that other governmental bodies, state agencies, are granted, i.e., the opportunity to elect to protect its employees with self-insurance. County taxpayers are now denied the right to elect to spend their tax dollars in a less expensive manner — self-insurance. County taxpayers whose tax dollars have already gone into a self-insurance plan are now denied the right to sue for individual redress if they are injured by county employees — sovereign immunity.
More importantly, neither this Court nor the General Assembly can constitutionally forbid individual counties from determining the form of insurance coverage they wish to provide for their employees. The counties have been authorized by a higher power — the 1983 Georgia Constitution — to establish any form of insurance they wish to establish. Each county has been granted, pursuant to the Home Rule for Counties and Municipalities provision of the Georgia Constitution, the “powers and limitations as are provided in this Constitution and as provided by law.”
The 1983 Georgia Constitution,
5. If county taxpayers are going to be denied the opportunity to adopt a self-insurance plan, and since without insurance there is no waiver of sovereign immunity, then we should not grant immunity to county officials who drive motor vehicles in a negligent manner. The burden of damage resulting from the negligent acts of county officials should not be imposed totally upon the innocent citizen who was wrongfully injured.
County taxpayers must pay into the county coffers, but when the same county taxpayers are injured by a county official, the official can answer: “negligence,” and the county can respond: “The King can do no wrong.” The wrongfully injured taxpayer is left to bear the burden alone. For this reason and those stated above, I respectfully dissent.
DECIDED APRIL 20, 1990 —
RECONSIDERATION DENIED MAY 31, 1990.