Robinson v. City of Decatur
325 S.E.2d 752
Ga.
1985
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41397. ROBINSON v. CITY OF DECATUR.

41397

Supreme Court of Georgia

DECIDED FEBRUARY 13, 1985.

325 SE2d 752

MARSHALL, Presiding Justice.

lan, Edward M. Joffe, for appellees.

MARSHALL, Presiding Justice.

This is an action by a minor, by next friend, against the City of Decatur, to recover damages for injuries sustained by her, at the age of six years, in her near drowning in the Glenn Lake swimming pool, which was owned and operated by the defendant municipality. The complaint was based on the theories of negligence and nuisance. The plaintiff appeals from the grant of the defendant‘s motion for summary judgment. We affirm.

1. OCGA § 36-33-1 provides: “Municipal corporations shall not be liаble for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful pеrformance of their ministerial duties, they shall be liable.” It has been held uniformly in this state that the operation of public recreational swimming facilities, primarily for public benefit rather than for revenue producing, is a governmental function, so that the city is shielded from negligence claims by the doctrine оf governmental immunity.

and cits. The appellant contends that this Code section is unconstitutional on its face and as applied, in that it violates the appellant‘s federal and state rights to equal protection of the law and due process of law, and enables a city to escapе liability by merely passing an ordinance authorizing the operation of a swimming pool and declaring that it is for the benefit of the public at large, henсe is a governmental function. However, it has been held that the statutory bar of sovereign immunity to suit in tort is not a deprivation of property without just comрensation, nor a denial of either equal protection or due process under the federal or state constitutions.
;
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2. The evidence herе was that the operation of the swimming pool was primarily for public benefit, thus making it a governmental function, so that the city is shielded from negligence claims by the doctrine of governmental immunity. The grant of summary judgment was correct with respect to the negligence claim.

3. The grant of summary judgment was corrеct as to the nuisance claim, because the factors set out in

, did not exist here. The doc-trine of attractive nuisance, discussed in
, is not applicable, because that provides a standard of care of negligence, ‍​​​‌‌​‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​‌‌‌‌​‌‌‌​‌‌‌​​​​​​​​​‌​‍which does not apply in this sovereign immunity situation.

4. The purchase of general liability insurance by the municipality does not waive sovеreign immunity.

.

The grant of summary judgment in favor of the defendant municipality was not error.

Judgment affirmed. All the Justices concur, except Hill, C. J., Smith and Weltner, JJ., who dissent. Clarke, J., сoncurs specially.

DECIDED FEBRUARY 13, 1985.

Teddy R. Price, for appellant.

Theodore Freeman, G. Randall Moody, for appellee.

CLARKE, Justice, concurring specially.

I concur in the result reached by the majority because it is mandated by the laws of this state in effect at the time the cause of action arose, July 31, 1980. In my view the result would have to be different had the injury occurred on or after January 1, 1983, when Art. I, Sec. II, Par. IX, as designated in the 1983 Constitution, went into effect.

The sovereign immunity of municipal corporations, OCGA § 36-33-1, is a codification of the holding of this court in

. See History Section, OCGA § 36-33-1; Vol. I, Preface, Code of Georgia, 1895; Sentell, Statutes ‍​​​‌‌​‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​‌‌‌‌​‌‌‌​‌‌‌​​​​​​​​​‌​‍of Nonstatutory Origin, 14 Ga.L. Rev. 239 (1980). In
, this court held that a city was not liable in performing acts of a legislative or judiсial nature “for they are deemed to be a part of the state‘s power, and, therefore, under the same immunity.”
.

The Georgia Constitution as voted on and ratified by the citizens now provides a waiver of sovereign immunity of the state and its departments and agencies for claims covered by liability insurance. 1983 Constitution, Art. I, Sec. II, Par. IX. Constitutional principles and public policy would dictate that this waiver be applied to all sovereign immunity cases arising after the effeсtive date of this amendment. However, the application of these principles and policies must wait until the proper case.

HILL, Chief Justice, dissenting.

On Thursday, July 31, 1980, six-yeаr-old Cassandra Robinson was found in seven feet of water at the bottom of Glenn Lake swim-ming pool which is owned and operated by the defendant, City of Decatur. As a result of being submerged for approximately three minutes, Cassandra suffered brain damage and permanent loss of mental capaсity. Due to her learning disability, Cassandra is unable to participate in the normal education program and she is enrolled in a special disabilities lеarning program. Although not required to be alleged, it is undoubtedly true that her father has incurred medical and other expenses as a result of her injuries.

The City оf Decatur charges an admission fee and provides life guards at its pool. It is alleged that the life guards employed ‍​​​‌‌​‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​‌‌‌‌​‌‌‌​‌‌‌​​​​​​​​​‌​‍on the day of this event were inаdequately trained in their duties and were themselves inattentive to their responsibilities.

In my view, by application of the doctrine of sovereign immunity Cassandra and her father have been deprived of life, liberty and property without compensation, and thus have been denied due process of law in viоlation of the 14th Amendment. For me, this inhumane result is compounded by the defendant‘s apparent use of public funds to purchase liability insurance covering this tragiс occurrence. I therefore dissent.

I am authorized to state that Justice Smith joins in this dissent.

WELTNER, Justice, dissenting.

It is a wise axiom that a hard case can make bad law. The сonverse of that is equally true — hard law can make a bad case.

The tragedy here reflected came about because the City of Decatur undertook to operate a public swimming pool, which is doubtless a worthwhile endeavor. The record reflects that the city charged admissiоn to those using the swimming pool. It does not reflect whether or not the city, at the time of the little girl‘s injury, had obtained a policy of liability insurance which would bе applicable to claims arising out of the operation of the pool.

Yet, that factor should be determinative ‍​​​‌‌​‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​‌‌‌‌​‌‌‌​‌‌‌​​​​​​​​​‌​‍of the outcome оf this case.

The purpose of sovereign immunity is, of course, to protect the public body. Somewhere in the distant past, after we departed from the concept that the King can do no wrong, a public judgment was made (and has endured) that, as between an individual injured by the negligence of public agents and the members of the public body, it is better that the single citizen bear the injury than that its burden be cast upon the citizenry as a whole.

But the realities of modern life have intruded into this sovereign preserve. OCGA § 33-24-51 (a) authorizes a municipal corporation to secure and provide insurance to cover liability for damages “arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation. . . .” OCGA § 33-24-51 (c) provides that the municipal corporation shall be liable “only for damages suffered while the insurance is in force but in no case in an amount exceeding the limits or the coverage of the insurance policy.”

Admittedly, this record is silent as to the existence of insurance, and the claim before us does not arise out of the operation of a motor vehicle. Yet, the statute can only be expressive of the policy that, where the reason for the rule terminates (that is, where there is insurance ‍​​​‌‌​‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​‌‌‌‌​‌‌‌​‌‌‌​​​​​​​​​‌​‍to cover liability), the rule itself (sovereign immunity) should terminate. Stated otherwise, when there is no jeopardy to the public treasury, the traditional choice — either unrequited damage to an individual or reparations from the public trеasury — no longer need be made.

In my opinion, we would preserve both the public interest and the critical needs of this child by remanding the case to the trial court to determine whether or not there was in effect at the time of the injury a policy of liability insurance, and, given an affirmative answer, fix the extent of any liability of the city not to exceed the policy limit.

MARSHALL

Presiding Justice