GATTO v. CITY OF STATESBORO ( 2021 )

In the Supreme Court of Georgia
Decided: June 21, 2021
S20G0651. GATTO et al. v. CITY OF STATESBORO et al.
LAGRUA, Justice.
Michael and Katherine Gatto filed suit against the City of
Statesboro and City Clerk Sue Starling, alleging negligence and
maintenance of a nuisance, after their son, Michael, died following
an altercation at a bar in the University Plaza area of the City. The
trial court granted summary judgment to both defendants, based in
part on sovereign immunity. The Court of Appeals affirmed as to
the City, solely on the ground of sovereign immunity. See Gatto v.
City of Statesboro, 353 Ga. App. 178 (1), (2) (834 SE2d 623) (2019).
This Court granted certiorari to consider the contours of municipal
immunity 1 with respect to nuisance claims. We hold that the City
1 Although the trial court and the Court of Appeals used the term
“sovereign immunity” to describe the City’s immunity, we will generally use
is immune from liability for the conduct alleged here, because
municipalities have never faced liability for a nuisance claim based
on alleged conduct related to property they neither own nor control,
and nothing in our Constitution alters that principle. Accordingly,
we affirm.
Viewing the evidence in favor of the Gattos as the parties
opposing summary judgment, the Court of Appeals summarized the
relevant facts as follows:
[O]n the evening of August 27, 2014, and early morning
hours of August 28, 2014, eighteen-year-old Michael, an
incoming freshman at Georgia Southern University, was
at Rude Rudy’s, a bar located in University Plaza,
drinking with friends. In addition to Rude Rudy’s,
University Plaza was home to several other businesses
that served alcohol, including Retrievers, Rusty’s Tavern,
and Rum Runners, and was within walking distance of
the campus of Georgia Southern University. Told by a
bartender that Michael was stealing money from the tip
jar, Grant James Spencer (“Spencer”), a bouncer at Rude
Rudy’s, went to remove Michael from the bar. Spencer
struck Michael five times in the head/face, until he was
limp and unconscious, and then dropped him on the floor
of the bar. After Spencer heard Michael’s head hit the
floor of the bar, he dragged him outside and left him.
Michael was discovered by emergency personnel and
the term “municipal immunity” to refer to the governmental immunity
afforded specifically to cities.
2
airlifted to a hospital in Savannah, where he died on the
afternoon of August 28, 2014. Spencer pled guilty to
voluntary manslaughter, and was sentenced to 20 years
in prison.
Gatto, 353 Ga. App. at 179 (footnotes omitted). It is undisputed that,
at the time of the altercation leading to Michael’s death, Rude
Rudy’s was a privately owned business operating out of retail
premises leased from a separate, privately owned corporation. As
such, the City had no ownership interest in Rude Rudy’s or in any
of the property comprising University Plaza.
Nonetheless, based on evidence that the establishments in
University Plaza routinely admitted and served alcohol to underage
patrons, that violence in the Plaza was common, and that the City
had knowingly failed to address these issues, the Gattos asserted
that the City and Starling had acted negligently and that the City
was maintaining a nuisance, which proximately caused Michael’s
death. Specifically, the Gattos alleged that Starling had negligently
breached a ministerial duty to set due process hearings upon her
receipt of notices of ordinance violations by University Plaza
3
establishments; that the City was vicariously liable for these
breaches by Starling; that the City’s renewal of business and alcohol
licenses for Plaza establishments without regard to the pattern of
illegal and dangerous activities at the Plaza constituted a breach of
its duty of ordinary care; and that the defendants’ history of acts and
omissions in allowing the Plaza’s establishments to remain in
operation despite the dangerous pattern of unlawful activities at the
Plaza constituted a continuing nuisance.
On the defendants’ motion, the trial court granted summary
judgment, holding that the claims against the City and Starling
were barred by sovereign immunity and, alternatively, that the
causal chain between the defendants’ acts and Michael’s injuries
and death was broken by intervening criminal acts of Michael and
Spencer. On appeal, the Court of Appeals, in pertinent part,
affirmed the trial court’s holding that the Gattos’ claims against the
City were barred by sovereign immunity. See Gatto, 353 Ga. App.
4
at 183 (1).2 As to this issue, the Court of Appeals rejected the Gattos’
contention that the City’s conduct here fell within a so-called
“nuisance exception” to sovereign immunity. See City of
Thomasville v. Shank, 263 Ga. 624, 625 (1) (437 SE2d 306) (1993)
(explaining that “a municipality is liable for creating or maintaining
a nuisance which constitutes either a danger to life and health or a
taking of property”). This Court granted certiorari to address that
holding.
1. Municipalities performing their governmental functions
have long been afforded immunity from civil liability akin to the
immunity afforded to the State. As early as 1880, this Court held
that municipalities enjoyed “the same immunity” as the State in
their performance of “acts which are legislative or judicial in their
nature,” on the ground that such acts “are deemed to be but the
2 The Court of Appeals also held that the City had not waived its
sovereign immunity by its purchase of liability insurance. See Gatto, 353 Ga.
App. at 184-185 (2). We did not grant certiorari to review this issue and
express no opinion on it here. We likewise express no opinion on the Court of
Appeals’ holding that the trial court erred in sua sponte granting summary
judgment on the Gattos’ negligence claim against Starling based on sovereign
immunity. See id. at 186-187 (4).
5
exercise of a part of the state’s power.” Rivers v. City Council of
Augusta, 65 Ga. 376, 378 (1) (1880); see also Mayor & Aldermen of
City of Savannah v. Jordan, 142 Ga. 409, 409 (83 SE 109) (1914) (a
municipality is exempt from liability where it “undertakes to
perform for the state duties which the state itself might perform”).
Though originating in the common law, the doctrine of municipal
immunity now enjoys constitutional status. See Ga. Const. of 1983,
Art. IX, Sec. II, Par. IX (recognizing “the immunity of counties,
municipalities, and school districts”); see also OCGA § 36-33-1 (a)
(citing this constitutional provision and declaring municipal
immunity to be “the public policy of the State of Georgia”); City of
Atlanta v. Mitcham, 296 Ga. 576, 577 (1) (769 SE2d 320) (2015)
(discussing constitutional basis for municipal immunity). 3 Under
3Our precedent used to hold that municipal immunity was additionally
grounded in Article I, Section II, Paragraph IX of our Constitution, which
confers sovereign immunity upon “the state and all of its departments and
agencies.” See Hiers v. City of Barwick, 262 Ga. 129, 131 (2) (414 SE2d 647)
(1992) (holding that the 1983 predecessor to current Article I, Section II,
Paragraph IX applied to municipalities); see also Lathrop v. Deal, 301 Ga. 408,
421-422 (II) (B) (801 SE2d 867) (2017) (citing Hiers in noting that sovereign
immunity under the 1983 version of Article I, Section II, Paragraph IX was
construed “to extend not only to the State itself, but also . . . to municipalities”).
6
our current Constitution, municipal immunity may be waived only
by the General Assembly. See Ga. Const. of 1983, Art. IX, Sec. II,
Par. IX (“The General Assembly may waive the immunity of
counties, municipalities, and school districts by law.”).
With regard to the operation of municipal immunity, Georgia
courts have traditionally distinguished “governmental” acts, as to
which such immunity applies, from acts that are “ministerial,” as to
which it does not. See, e.g., Cornelisen v. City of Atlanta, 146 Ga.
416, 416-417 (1) (91 SE 415) (1917); Rivers, 65 Ga. at 378-379 (1).
This distinction is codified as follows:
Municipal corporations shall not be liable for failure to
perform or for errors in performing their legislative or
judicial powers. For neglect to perform or improper or
unskillful performance of their ministerial duties, they
shall be liable.
OCGA § 36-33-1 (b); see also Mitcham, 296 Ga. at 577-578 (1)
However, we have held squarely that the current version of Article I, Section
II, Paragraph IX does not apply to municipalities. See City of Thomaston v.
Bridges, 264 Ga. 4, 7 (439 SE2d 906) (1994) (“[W]e conclude that municipalities
do not come within the ambit of the 1991 amendment [to Article I, Section II,
Paragraph IX.]”).
7
(“[M]unicipal corporations are immune from liability for acts taken
in performance of a governmental function but may be liable for the
negligent performance of their ministerial duties.”). In this context,
“governmental” functions are those that are “intended for the benefit
of the public at large,” while “ministerial” functions are those
involving the exercise of some private franchise, or some
franchise . . . exercise[d] for the private profit or
convenience of the [municipal] corporation or for the
convenience of its citizens alone, in which the general
public has no interest.
Mitcham, 296 Ga. at 578 (2) (citation and punctuation omitted); see
also Cornelisen, 146 Ga. at 416. Compare, e.g., Jordan, 142 Ga. at
409 (public sanitation is a governmental function); Calloway v. City
of Warner Robins, 336 Ga. App. 714, 715 (1) (a) (783 SE2d 175)
(2016) (issuance of a business license is a governmental function),
with, e.g., City Council of Augusta v. Owens, 111 Ga. 464, 477 (7) (36
SE 830) (1900) (operation of city-owned rock quarry is a ministerial
function). 4 Thus, where a municipality performs the functions of a
4 Somewhat incongruously, Georgia courts have long held that the duty
to maintain streets and sidewalks free from obstructions and other dangers is
8
sovereign, it enjoys immunity for injuries resulting from the
improper or negligent performance, or the failure to perform, those
functions. See Mitcham, 296 Ga. at 579 (2).5
2. Even in the exercise of its governmental functions, however,
a municipality does not enjoy immunity from all liability. This
Court has held that, although protected from liability as to
negligence actions,
[a] municipality[,] like any other individual or private
corporation[,] may be liable for damages it causes to a
third party from the operation or maintenance of a
nuisance, irrespective of whether it is exercising a
governmental or ministerial function. This exception to
sovereign immunity is based on the principle that a
municipal corporation can not, under the guise of
performing a governmental function, create a nuisance
dangerous to life and health or take or damage private
property for public purpose, without just and adequate
a ministerial duty. See Mayor, etc., of Dalton v. Wilson, 118 Ga. 100, 111 (44
SE 830) (1903) (noting “the well-established rule in this state that a municipal
corporation is bound to keep its streets and sidewalks in a reasonably safe
condition, and that the failure to perform this duty constitutes a breach of a
ministerial duty[.]”) (emphasis added); Mayor & Aldermen of City of Savannah
v. Herrera, 343 Ga. App. 424, 428 (1) (808 SE2d 416) (2017) (noting that “the
duty to maintain city streets in a reasonably safe condition for travel” has been
recognized as a ministerial duty “for more than a century”).
5 The General Assembly has provided for a limited waiver of municipal
immunity, in certain contexts, where a municipality has purchased liability
insurance, see OCGA § 36-33-1 (a), but this waiver does not bear on the issue
before us here. See footnote 2 above.
9
compensation being first paid.
Shank, 263 Ga. at 624-625 (1) (emphasis added; citations and
punctuation omitted). Though denominated an “exception” to
sovereign immunity in Shank and some other cases, see, e.g.,
Atkinson v. City of Atlanta, 325 Ga. App. 70, 70 (752 SE2d 130)
(2013) (“[A]s an exception to its immunity, a municipality is liable
for damages resulting from operating or maintaining a nuisance.”),
the principle that municipalities may be liable for creating or
maintaining a nuisance is actually “not an exception at all, but
instead, a proper recognition that the Constitution itself requires
just compensation for takings and cannot, therefore, be understood
to afford immunity” for such conduct. Georgia Dept. of Nat.
Resources v. Center for a Sustainable Coast, Inc., 294 Ga. 593, 600
(2) (755 SE2d 184) (2014). See also Ga. Const. of 1983, Art. I, Sec.
III, Par. I (a) (“Except as otherwise provided in this Paragraph,
private property shall not be taken or damaged for public purposes
without just and adequate compensation being first paid.”); Long v.
City of Elberton, 109 Ga. 28, 29-30 (34 SE 333) (1899) (noting that
10
plaintiff’s municipal nuisance claim was rooted in the Georgia
Constitution’s takings clause). As we made clear in Sustainable
Coast, because only the General Assembly has the authority to enact
a waiver of sovereign immunity, judge-made “exceptions” are
unauthorized and have no validity. Sustainable Coast, 294 Ga. at
599-600 (2). Thus, the moniker “nuisance exception” is a misnomer,
and it is more apt to refer to the “nuisance doctrine” when evaluating
whether municipal liability may be imposed in a given case.
In applying the nuisance doctrine, the challenge is
“determining what conduct or act on the part of the municipality will
result in the creation or maintenance of a nuisance, as opposed to an
action in negligence.” Hibbs v. City of Riverdale, 267 Ga. 337, 338
(478 SE2d 121) (1996). See also City of Bowman v. Gunnells, 243
Ga. 809, 810-811 (2) (256 SE2d 782) (1979) (“Neither this court, nor
any other court to our knowledge, has been able to give a precise
legal definition of nuisance that would apply to all situations.”).
Perhaps the most common municipal nuisance scenario is that
involving damage to property caused by the construction or
11
maintenance of municipal sewer and drainage systems. See R.
Perry Sentell, Jr., THE LAW OF MUNICIPAL TORT LIABILITY IN
GEORGIA, 117 (4th ed. 1988) (“MUNICIPAL TORT LIABILITY”)
(observing that the municipal nuisance doctrine “has received its
greatest application” in the sewer and drainage context). See also,
e.g., City of Columbus v. Myszka, 246 Ga. 571, 571-572 (1) (272 SE2d
302) (1980) (affirming nuisance judgment against city for damage to
property caused by leaking municipal sewer and insufficient
drainage system); Bass Canning Co. v. MacDougald Constr. Co., 174
Ga. 222, 227 (1) (162 SE 687) (1932) (city could be held liable for
nuisance damage caused by faulty municipal drainage system);
Langley v. City of Augusta, 118 Ga. 590, 592-593 (8) (45 SE 486)
(1903) (city could be held liable in nuisance for damage caused by
overflow from drainage ditch); Reid v. City of Atlanta, 73 Ga. 523,
524-525 (1884) (city could be held liable in nuisance for damage
caused by failure to maintain sewer). Municipalities have also been
held subject to liability in nuisance for injuries resulting from the
construction or operation of other types of physical structures. See,
12
e.g., Delta Air Corp. v. Kersey, 193 Ga. 862, 871-872 (3) (20 SE2d
245) (1942) (city could be held liable for constructing and operating
an airport in such a way to endanger the life and health of adjoining
landowners); Mayor & Council of Washington v. Harris, 144 Ga. 102,
103 (86 SE 220) (1915) (city could be held liable in connection with
operation of power plant city constructed on lot adjacent to plaintiff’s
property); Bentley v. City of Atlanta, 92 Ga. 623, 628 (18 SE 1013)
(1893) (city could be held liable in connection with its maintenance
of a bridge adjacent to plaintiff’s property).
Traditionally, a municipality’s liability in nuisance was limited
to situations where the alleged injury related to the physical
condition of the plaintiff’s property or the plaintiff’s use and
enjoyment thereof. See, e.g., Bass Canning Co., 174 Ga. at 224 (1)
(city may be liable for a nuisance “where the effect of the nuisance
is specially injurious to an individual by reason of its proximity to
his home”); Stanley v. City of Macon, 95 Ga. App. 108, 112 (2) (b) (97
SE2d 330) (1957) (to recover against city for nuisance, plaintiff must
show that the condition of which he complains “is injurious by
13
reason of its relationship to his home or property”). Thus, in the
sewer and drainage cases, the plaintiffs were owners or occupiers of
land that was affected by the sewer or drainage systems owned,
constructed, or maintained by the defendant cities. See, e.g.,
Myszka, 246 Ga. at 571-572 (1); Bass Canning Co., 174 Ga. at 222(1); Langley, 118 Ga. at 592-593 (8). So, too, with respect to cases
involving airports, power plants, and bridges. See Delta Air Corp.,
193 Ga. at 871-872 (3); Harris, 144 Ga. at 102; Bentley, 92 Ga. at
623. This limitation reflected the municipal nuisance doctrine’s
roots in our Constitution’s Takings Clause. See, e.g., Delta Air
Corp., 193 Ga. at 870 (3) (municipality cannot create nuisance or
damage private property “for public purposes without just and
adequate compensation first being paid”); Long, 109 Ga. at 29-30(noting that the plaintiff’s municipal nuisance claim was based on
“the provision of the constitution which declares that private
property shall not be taken or damaged for public purposes without
just and adequate compensation being first paid”).
This limitation on the nuisance doctrine was, however,
14
apparently abandoned in the case of Town of Fort Oglethorpe v.
Phillips, 224 Ga. 834 (165 SE2d 141) (1968), which one commentator
has described as “legendary” because of its expansive effect on the
municipal nuisance doctrine. See Sentell, MUNICIPAL TORT
LIABILITY, at 125. In Phillips, this Court ruled on the sufficiency of
a complaint alleging that the municipality had maintained a
nuisance by knowingly failing to repair a malfunctioning traffic light
– for more than two weeks and despite its knowledge of six accidents
at the affected intersection – which allegedly caused a collision that
injured the plaintiff’s ward. See 224 Ga. at 838. We concluded that
the complaint should have survived a general demurrer because it
“state[d] facts sufficient to show the active operation and
maintenance of a dangerous condition and knowingly allowing such
condition to continue to the injury of the plaintiff.” Id. By extending
the nuisance doctrine to include personal injuries beyond those tied
to the plaintiff’s property, Phillips enlarged the scope of
municipalities’ potential liability in nuisance. See Sentell,
MUNICIPAL TORT LIABILITY, at 125; see also Mayor & City of
15
Savannah v. Palmerio, 242 Ga. 419, 428 (249 SE2d 419) (1978) (Hall,
J., concurring specially) (opining that this Court should re-examine
Phillips because it “‘appears to open a Pandora’s box for the
nuisance concept in municipal liability’”).6
Since Phillips, this Court has attempted to elucidate
parameters for this more expansive notion of municipal liability. In
Palmerio, in connection with our consideration of jury instructions
on the subject, we provided the following guidance:
To be held liable for maintenance of a nuisance, the
municipality must be chargeable with performing a
continuous or regularly repetitious act, or creating a
continuous or regularly repetitious condition, which
causes the hurt, inconvenience or injury; the municipality
must have knowledge or be chargeable with notice of the
dangerous condition; and, if the municipality did not
perform an act creating the dangerous condition . . . the
failure of the municipality to rectify the dangerous
condition must be in violation of a duty to act.
6 Some of us have doubts about the legal foundations of Phillips, which
also divorced municipal nuisance liability from its basis in our Constitution’s
Takings Clause. How Phillips relates to the subsequent constitutionalization
of sovereign immunity raises complicated questions. See Bd. of Commrs. of
Lowndes County v. Mayor & Council of City of Valdosta, 309 Ga. 899, 902-904
(2) (a) (848 SE2d 857) (2020) (discussing effect of 1974 constitutionalization of
sovereign immunity on the authority of courts to modify the doctrine).
However, we need not address these doubts and questions to resolve the case
before us, because, as we will explain, the Gattos’ nuisance claim against the
City goes beyond even Phillips’ expansion of the nuisance doctrine.
16
242 Ga. at 427 (3). Similarly, in City of Bowman v. Gunnells, 243
Ga. 809 (256 SE2d 782) (1979), we set forth three “guidelines” for
identifying an actionable municipal nuisance: (1) “[t]he defect or
degree of misfeasance must be to such a degree as would exceed the
concept of mere negligence”; (2) “[t]he act must be of some duration”;
and (3) the municipality failed to act “within a reasonable time after
knowledge of the defect or dangerous condition[.]” Id. at 811 (2).
While not explicitly stated, implicit in all of these formulations
is the notion that a municipality’s liability is grounded in its exercise
of some degree of dominion or control over the property giving rise
to the alleged nuisance, whether by virtue of ownership or the
assumption of responsibility for its maintenance or operation. Thus,
as to a nuisance claim against a city based on a subdivision’s
inadequate drainage system, we have held that liability could lie
only if “the City’s actions in regard to the storm drainage system
constituted such exercise of control or acceptance so as to establish
a duty on the part of the City to adequately maintain it.” Hibbs, 267
17
Ga. at 338. In another drainage case, we held similarly that “in
order to become responsible, a municipality must actively take
control over the property in question or accept a dedication of that
property.” City of Atlanta v. Kleber, 285 Ga. 413, 419 (3) (677 SE2d
134) (2009). See also Merlino v. City of Atlanta, 283 Ga. 186, 189 (2)
(657 SE2d 859) (2008) (city entitled to summary judgment on
nuisance claim where “there [was] no evidence that the City owned
the [source of the nuisance] or exercised direct dominion or control
over it”); City of Atlanta v. Demita, 329 Ga. App. 33, 37 (1) (762 SE2d
436) (2014) (reversing jury verdict for plaintiff on the ground that
there was “no evidence that the City negligently constructed or
maintained a sewer or drainage system under its control which
caused the repeated flooding of [the plaintiff’s] property”).
A corollary to the principle that a municipality must exercise
some control over property in order to be subject to liability for harm
it has caused is the longstanding rule that municipalities will not be
held liable for the mere failure to abate a nuisance maintained on or
with respect to another’s property. See, e.g., Wilson, 118 Ga. at 101
18
(“[T]here can be no action for damages [against a municipality]
where the nuisance is maintained by a private individual on private
property.”); Head v. City Council of Augusta, 46 Ga. App. 705, 705
(1) (169 SE 48) (1933) (“A municipality is not liable for injuries
resulting from a nuisance maintained by individuals on their own
property, notwithstanding such a nuisance might be abated or
removed[.]”). And it is clear that Phillips did not alter this rule.
In Hancock v. City of Dalton, 131 Ga. App. 178 (205 SE2d 470)
(1974), the Court of Appeals, expressly distinguishing Phillips, held
that the city could not be held liable for its failure to enforce an
ordinance requiring the erection of railroad crossing signals by
railroads. See 131 Ga. App. at 180-181. Phillips was different, the
Court of Appeals explained, because there, the source of the
nuisance was a traffic light operated by the municipality, as opposed
to the situation presented in Hancock, where the alleged nuisance
arose from the absence of traffic signals. See id. Because there was
no property over which the city had undertaken to exercise control,
there was no basis for holding the city liable in nuisance. The same
19
result obtained in Bowen v. Little, 139 Ga. App. 176 (228 SE2d 159)
(1976), in which the Court of Appeals affirmed the dismissal of the
city from an action alleging nuisance for its failure to install a traffic
light at a particular intersection. See id. at 176. Citing Bowen and
Hancock with approval, we have applied the same principle and
noted “a clear line . . . between a discretionary nonfeasance and the
negligent maintenance of something erected by the city in its
discretion in such manner as to create a dangerous nuisance[.]”
Tamas v. Columbus, 244 Ga. 200, 201-202 (259 SE2d 457) (1979)
(emphasis added). Stated simply, where there is no property over
which the municipality exercises dominion or control, there can be
no municipal nuisance liability.
Thus, while Phillips and cases following it may have expanded
municipal nuisance liability beyond circumstances where the injury
bears some connection to the plaintiff’s property, no case has
expanded the realm of municipal liability to cover injuries caused by
property over which the municipality does not exercise dominion or
control in some manner. The Gattos have cited no Georgia case, and
20
we have found none, in which a municipality has been subjected to
liability in nuisance for acts originating on, or the failure to act with
regard to, property the municipality neither owned nor controlled in
some manner at the time of the alleged injury. See City of Albany v.
Stanford, 347 Ga. App. 95, 103 n.3 (815 SE2d 322) (2018) (Gobeil,
J., concurring specially) (“There is no case law indicating that a
municipality may be held liable for creating or maintaining a
nuisance on private property held by another.”). 7
3. This Court now has no authority to alter these outer limits
of municipal nuisance liability. Once the doctrine of sovereign
immunity attained constitutional status in 1974, “courts no longer
had the authority to abrogate or modify the doctrine.” Sustainable
7 In addition to Phillips, the Gattos rely heavily on a trio of other cases
to support their claims. In none of these cases, however, was a municipality
subjected to liability for injuries caused by property owned or controlled
exclusively by another party. See Myszka, 246 Ga. at 571-572 (1) (liability
imposed in part based on leakage from city’s sewerage system); City of
Waycross v. Houk, 113 Ga. 963, 966 (2) (39 SE 577) (1901) (affirming the grant
of an injunction against city for its role in maintaining a sewer system that
discharged near the plaintiff’s property); City of Gainesville v. Pritchett, 129
Ga. App. 475, 476 (1) (199 SE2d 889) (1973) (city could be held liable for
injuries resulting when plaintiffs collided with a ski-jump barge placed in the
channel of a lake in connection with a city-sponsored holiday event).
21
Coast, 294 Ga. at 597 (2). As we recently noted, the
constitutionalization of the sovereign immunity doctrine preserved
the scope of the doctrine as it existed at common law and rendered
it unmodifiable by the courts. See Bd. of Commrs. of Lowndes
County v. Mayor & Council of City of Valdosta, 309 Ga. 899, 904 (2)
(a), (b) & n.2 (848 SE2d 857) (2020). Now, absent a waiver by the
Georgia Constitution itself, only the General Assembly has the
authority to abrogate or modify the scope of sovereign immunity.
See Ga. Const. of 1983, Art. IX, Sec. II, Par. IX; see also Art. I, Sec.
II, Par. IX (a), (e). Thus, unless and until the General Assembly sees
fit to reduce the scope of municipalities’ immunity and thereby allow
liability for claims of the type the Gattos have asserted, we are
bound to enforce the limits of liability that currently exist.
4. Here, the Gattos seek to impose liability on the City for
failing to enforce its ordinances or take other steps to compel private
businesses operating on private property to comply with their legal
obligations. It is undisputed that the altercation between Michael
and Spencer occurred on private property that was controlled by a
22
privately owned business. Even to the extent the environment at
University Plaza may accurately be characterized as having
constituted a nuisance – a matter on which we express no opinion –
the law is clear that the City cannot be held liable for its
discretionary decision not to act to abate a nuisance caused by a
private party and maintained on private property. Accordingly, we
conclude that the City was correctly held to be immune from liability
as to the Gattos’ nuisance claim.
Judgment affirmed. All the Justices concur, except Ellington,
J., who concurs in the judgment only, and Peterson, J., disqualified.
23