SOVEREIGN IMMUNITY: Suits against Governments and Their Employees

The general rule in Georgia is that municipal, county and state government bodies enjoy sovereign immunity. This means that a party may not prevail against a municipal, county and state government on claims for injury or damages unless the party can establish that the government's right to such immunity has been waived. The dominating question thus becomes: what actions constitute a waiver? In a technical sense, sovereign immunity is waived in Georgia only where it is expressly done so by an act of the state legislature.

The legislature has established that sovereign immunity is waived for most claims against municipalities, counties and the state which are contractual in nature. The legislature has further waived sovereign immunity as follows:

Extension of Sovereign Immunity to Public Employees Sued in their Official Capacities

Public employees are often sued in their official capacities. For purposes of liability, any cause of action alleged against a public employee in his official capacity is in reality a suit against the involved government. Because of this capsule in the law, often when there is little or no evidence establishing wrongdoing by the government, a party will elect to sue the employee in his official capacity in an attempt to gain access to the purse of the government employer. Fortunately, the law provides that public employees are entitled to the benefit of their employer's sovereign immunity when sued in their official capacities. As such, the suing party must still establish that sovereign immunity was waived by the involved government in order to recover against the employee in his official capacity.

Public Employees Sued in their Individual Capacities

A public employee is often sued in his individual capacity in addition to his official capacity. Many times this is done to ensure that the employee's personal assets remain within reach should the parties' claims against the employer succumb to sovereign immunity. However, public employees enjoy an additional recourse should the defense of sovereign immunity fail: a public employee is immune from personal liability should he qualify under the doctrine of "official immunity."

In Georgia, the doctrine of official immunity governs public officials and employees sued in their individual capacities (also referred to sometimes as "personal" capacity). The doctrine provides that public employees may be held personally liable when they negligently perform or fail to perform their ministerial functions or when they act with actual malice or intent to cause injury in the performance of their official functions. A "ministerial" wrongdoing in this context is defined as negligence or error in the execution of plans or specifications, adopted or prescribed by the government. The phrase "official function" is defined as any act performed within the officer's or employee's scope of authority. A finding of actual malice requires a showing of a deliberate intention to do wrong.

Please be advised that the law in Georgia governing sovereign immunity is very complex. For example, sovereign immunity does not bar actions against a government body for violating a person's civil rights, nor does it prevent legal actions against a municipality for maintaining a nuisance. In addition, the law is constantly being modified and interpreted by the Georgia legislature and courts.

We encourage you to seek advice from our experienced attorneys at FDW, or outside counsel for specific questions you may have concerning you or your organization's entitlement under the law to sovereign or qualified immunity. Contact us at 770-478-9950 or by email at sfincher@fdwlaw.com.

Disclaimer: This article is designed to provide general information only. The information presented here is not intended to constitute formal legal advice nor is the provision of the same meant to result in the formation of a lawyer/client relationship.