Overcoming Sovereign Immunity Defenses of Counties in Georgia

This past week we spoke at a State Bar seminar on the doctrine of Sovereign Immunity in Georgia. In Georgia, there are limited statutory waivers of sovereign immunity by state and local governments. One of the most frustrating areas is that of county immunity. Essentially, the only statutory waiver of county immunity is that which provides for liability for county vehicles. If a county agent or employee is operating a covered vehicle, there is a mandatory minimum waiver of $500,000.00 per accident/$700,000.00 per occurrence. If the county has greater liability insurance over and above these amounts, then the waiver is for the combined total. See O.C.G.A. § 36-92-2.
If the claim does not involve an automobile, the only possibility of a recovery against a county agent or employee is to sue the county agent or employee in his or her individual capacity. You cannot sue such an employee in their official capacity because a county employee’s official capacity immunity is coextensive with that of the county. Again, because a county cannot be sued for torts in Georgia except for automobile claims, the only way around this is to sue the county employee involved in their individual capacity; however, in order to be successful, you have to prove a breach of a ministerial duty.
In Georgia, all county employees sued in their individual capacities are entitled to the defense of official immunity. If they are sued for acts that they performed within their discretionary authority, they are absolutely immune and cannot be held legally liable. However, if they do not have discretion but instead have a simple ministerial duty to perform and fail to do so, they can be individually liable. If the employee acts totally outside the scope of their authority they can be held individually liable or if they act with actual malice or intent to cause injury they can also be held individually liable. Absent one of these basis for liability; however, both the county itself and the county employee will be immune from any legal liability for torts in Georgia, unless an automobile claim is involved.