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SOVEREIGN IMMUNITY IN GEORGIA: STRIKING A BALANCE

Posted by Susan J. Levy

Since 1992, the State of Georgia, including all State agencies like the State Department of Human Resources or Department of Transportation, is entitled to sovereign immunity except to the extent sovereign immunity has been waived by the provisions of the Georgia Tort Claims Act (“GTCA”). [See also A Practitioner’s View of the Georgia Tort Claims Act, Georgia State Bar Journal (1992)]

The Georgia General Assembly recognized that because of the scope of the State government’s responsibilities, it could potentially face tremendous financial exposure if subjected to unlimited tort liability. However, it also understood the harsh consequences to citizens injured by State employees’ negligence if the rule of law was complete sovereign immunity. Consequently, the General Assembly enacted the GTCA which struck a balance between the two: a limited waiver of sovereign immunity.

The GTCA provides that the exclusive remedy for torts committed by a State employee is an action against the agency, not against the employee personally. O.C.G.A. § 50-21-20 et seq. Under the GTCA, the State has agreed to waive sovereign immunity for the torts of State officials and employees subject to certain exceptions and limitations. O.C.G.A. § 50-21-24 enumerates 13 exceptions to the State’s waiver of sovereign immunity.

The GTCA also limits the type and amount of damages recoverable from the State. “No award for damages under this article shall include punitive or exemplary damages or interest prior to judgment.” O.C.G.A. § 50-21-30. Moreover, there is a cap: “no person shall recover a sum exceeding $1 million because of loss arising from a single occurrence, regardless of the number of state government entities involved; and the state’s aggregate liability per occurrence shall not exceed $3 million.” O.C.G.A. § 50-21-29. (The GTCA also contains special provisions regarding ante litem notice, venue, service, etc. O.C.G.A. § 50-21-20 et seq.)

On March 2, 2007, I received a telephone call early in the morning telling me to immediately go to the scene of a serious bus crash on I-75 South, under the overpass at Northside Drive, just north of downtown Atlanta. Upon arriving, I found my client, a representative from the insurance company for Executive Coach Luxury Travel, Inc., standing next to the bus that had plunged over the bridge and landed on its side in the middle of I-75 while carrying the Bluffton University Baseball Team. It was a horrific sight and one I will never forget.

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But, I gathered evidence, spoke to the responding officers, and helped the owners of Executive Coach deal with the media and interact with the NTSB investigators. As the claims began to be filed, however, it became evident that a possible conflict might arise between Executive Coach and the Georgia Department of Transportation, which I have represented since the early ’90s. The Executive Coach driver had mistakenly exited I-75, traveled up an exit ramp past a stop sign and, in a last ditch effort to turn onto Northside Drive, crashed through the concrete barrier wall and landed on the interstate below. When a question of whether I-75 had been properly signed became a central issue in the cases, I withdrew from representing the bus company, but have continued to follow the cases with interest.

Last week, the State of Georgia settled the case for the limit under GTCA: $3 million. Seven were killed and 28 injured (some more seriously than others) and the State of Georgia, by statute, could be liable for no more than $3 million dollars.

This settlement demonstrates the harsh, but necessary, reality of at least limited sovereign immunity. The Georgia Legislature recognized that the doctrine of sovereign immunity can be draconian and even unfair. That is why it crafted the GTCA as a limited waiver of sovereign immunity. O.C.G.A. § 50-21-20 et seq. It provides for the award of damages that in the majority of cases will fairly compensate victims of a State employee’s negligence. The GTCA strikes a balance between the State’s ability to govern without bankrupting the State and the need to compensate injured individuals for wrong done in the process of governing. O.C.G.A. § 50-21-21(a).

In this case, the scope of the tragedy is incomprehensible. There are other defendants from whom the families may also collect, but no amount of money will bring their sons back. Yet, thankfully, the State of Georgia will still be able to function and to provide all of us with the essential governmental services we depend on every day.