Hiers v. City of Barwick ( 1992 )

Hunt, Justice,

dissenting in part and concurring specially in part.

I disagree with the holding of Division 2 of the opinion that “the constitutional provision which waives immunity to the extent of insurance applies to municipalities.” Therefore, I would disagree that both the City of Barwick and the chief of police waive immunity in this case because of the existence of liability insurance under GIRMA. However, because I would hold that the actions of the chief of police were of a ministerial nature, I would agree with the majority opinion that the judgment as to him should be reversed. That is, the claim against the chief should proceed, notwithstanding the absence of waiver of immunity by insurance.

1. The majority errs in including cities under Art. I, Sec. II, Par. IX. The error is important because of the difference in liability for negligence by cities and the state and its subdivisions, including counties.

A county is protected by sovereign immunity, except where immunity has specifically been waived or where a nuisance, which amounts to a taking of property without compensation, has been created. Duffield v. DeKalb County, 242 Ga. 432 (249 SE2d 235) (1978). On the other hand, while cities are immune in carrying out their governmental functions, they may be liable for negligence in their ministerial functions, as set out in OCGA § 36-33-1 (b):

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.

Furthermore, unlike a county, which is a subdivision of the state, Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95) (1985); Hines v. Etheridge, 173 Ga. 870, 875 (162 SE 113) (1931), a municipality is a public corporation and a creature of the legislature. See Miree v. United States, 242 Ga. 126, 133 (249 SE2d 573) (1978), quoting Troup County EMC v. Ga. Power Co., 229 Ga. 348, 352 (191 SE2d 33) (1972). See 22 EGL 12, Municipal Corporations, § 4. Thus, cities should not be lumped along with counties into Art. I, Sec. II, Par. IX. While the majority protests in a footnote that it does not intend to do away with the traditional differences between county and municipal liability, that may well be the inadvertent result. Also raised are questions whether cities should properly be included under any state tort claims act that may be enacted.

However, under Art. IX, Sec. II, Par. IX, “the General Assembly may waive the immunity of counties, municipalities, and school districts by law.” In 1986, the legislature did just that by enacting OCGA § 36-33-1 (a):

there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages. A municipal corporation shall not waive its immunity by the purchase of liability insurance, . . . unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy.

(Emphasis supplied.) Thus, insofar as a municipality is immune from suit, OCGA § 36-33-1 (b), the defense is waived if insurance is provided.

The City contends, however, that the act creating the GIRMA specifically provides “[t]he participation by a municipality . . . shall not constitute the obtaining of liability insurance and no sovereign immunity shall be waived on account of such participation.” OCGA § 36-85-20. While we held that the state employees’ self-insurance fund was “insurance” for purposes of waiver in Martin v. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987), and Price v. Dept. of Transp., 257 Ga. 535, 536 (361 SE2d 146) (1987), despite a similar provision attempting to preserve immunity in OCGA § 45-9-5, the result was dependent on the conflict between that statute and the waiver in Art. I, Sec. II, Par. IX of the 1983 Constitution. Price v. Dept. of Transp., supra, 257 Ga. 536, n. 1. Here, both the insurance waiver and the preservation of immunity are found in separate statutes. Thus, participation in the GIRMA, OCGA § 36-85-1 et seq., is not in conflict with a constitutional provision and there is no waiver of the city’s immunity.³

2. The result of Division 1, above, is that the City of Barwick may rely upon its defense of sovereign immunity because there is no liability insurance as contemplated by the constitutional authority provided in Art. IX, Sec. II, Par. IX. I disagree, however, that the chief of police is entitled to similar immunity. Without insurance, the inquiry as to the chief of police involves whether his conduct with respect to this occurrence was discretionary or ministerial. Under Logue, supra, it would appear his acts were discretionary, but I think we were wrong in Logue. There we held that because some judgment was involved in the determination by the patrolman whether to engage in a high-speed approach to the scene of an incident, that his actions were necessarily discretionary. I disagree with that proposition.

Whether the act of an official is discretionary or ministerial is a question of law and is not necessarily resolved by deciding whether the official had some discretion or judgment. Otherwise, every function would be immune from legal action because virtually all human endeavors involve some type of discretion. Even where an official’s duties involve primarily discretionary acts, if the particular act in question is more properly characterized as ministerial, qualified immunity does not apply. Cooper v. Swofford, 184 Ga. App. 50, 52 (360 SE2d 624) (1987). To be sure, the distinction between discretionary and ministerial is often hazy and the fact-sensitive, case-by-case approach taken by our appellate courts has led to results which often appear inconsistent. But, the proper test is whether the reasonableness of the official’s acts or policies are in question. If the latter, the official is beyond the reach of the courts under separation of powers principles and is protected by immunity. Acts performed without such reasoned judgment or discretion as to the propriety of the action taken are ministerial:

If there is a readily ascertainable standard by which the action of the government servant may be measured, whether that standard is written or the product of experience, it is not within the discretionary function exception.

57 AmJur2d 132, Municipal, County, School and State Tort Liability, § 120 (1988).⁴ See generally 5 Harper, James & Gray, The Law of Torts, § 29.11 at pp. 693-695 (2d ed. 1986); Restatement 2d Torts, § 895 D.

The conduct of the chief of police of the City of Barwick did not involve policymaking nor planning. It involved the implementation of policy and planning and, notwithstanding the exercise of some judgment on his part, it was ministerial as opposed to discretionary. Therefore, I would reverse the Court of Appeals and the trial court and permit the claim against the chief of police.

3 In Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990), the self-insurance fund was held to be unauthorized and thus could not have waived the sovereign immunity of the participating counties. Here, the risk fund is authorized.

4 This distinction is referred to by a majority of the states as the planning versus operational test. Judicial review of the former would appear to violate the doctrine of separation of powers. Operational decisions do not involve the same policy considerations and can be reviewed under “judicially manageable tort standards of due care and reasonableness.” 57 AmJur2d 133, Municipal, County, School and State Tort Liability, § 121.