Files v. Hous. Auth. of Douglas

368 Ga.App. 455

890 S.E.2d 356

FILES v. The HOUSING AUTHORITY OF the CITY OF DOUGLAS.

A23A0506

Court of Appeals of Georgia.

June 27, 2023

James Everett Shipley Jr., John Bell Manly, Savannah, for Appellant.

Steven Gary Blackerby, Brunswick, for Appellee.

Hodges, Judge.

Charles W. Files sued The Housing Authority of the City of Douglas (the "Housing Authority") and its employee, Michael W. Thomas, asserting claims of negligence and vicarious liability resulting from a traffic accident in which Files was injured when his vehicle and a city vehicle driven by Thomas collided. The Housing Authority moved for summary judgment, asserting that it was protected by sovereign immunity under the Georgia Constitution. The trial court granted that motion and dismissed all of Files’ claims. Files appeals, arguing that the trial court erred in finding that the Housing Authority was entitled to sovereign immunity, and in finding that it had not waived sovereign immunity up to $500,000. For the reasons that follow, we reverse.

In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) English v. Fulton County Bldg. Auth. , 266 Ga. App. 583, 597 S.E.2d 626 (2004).

So viewed, the record shows that Files and Thomas were driving on President Street in Savannah in September 2019 when the Housing Authority vehicle, which was registered to the City of Douglas, collided with the vehicle Files was driving. Files sued the Housing Authority, alleging that he had been seriously injured. The Housing Authority answered and moved for summary judgment. The trial court granted the motion without a hearing, finding that the Housing Authority was "an arm of the state" pursuant to Ga. Const. Art. I, Sec. II, Para. IX entitled to sovereign immunity and that it had not waived that immunity.

[S]overeign immunity was initially incorporated into the Georgia Constitution of 1945 by an amendment ratified in 1974. Our Constitution did not create sovereign immunity; instead, it incorporated sovereign immunity from the common law.... [T]hough the relevant text of our State Constitution regarding sovereign immunity has undergone certain revisions leading up to its current form in the Georgia Constitution of 1983 as amended in 1991, those provisions generally address only the waiver of sovereign immunity.

City of College Park v. Clayton County , 306 Ga. 301, 305 (1) (a), 830 S.E.2d 179 (2019). Further, "we have consistently recognized that sovereign immunity, as it exists in Georgia, is a continuation of English common law as it was understood in Georgia at the time it became part of our State Constitution." Id. at 307 (1) (b), 830 S.E.2d 179.

The current version of Ga. Const. Art. I, Sec. II, Para. IX (e), as amended in 1991, provides that

Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

"The doctrine of sovereign immunity, also known as governmental immunity, protects all levels of governments from legal action unless they have waived their immunity from suit." Cameron v. Lang , 274 Ga. 122, 126 (3), 549 S.E.2d 341 (2001). In addition to the State's departments and agencies, "[s]overeign immunity applies to state instrumentalities[.]" Kyle v. Georgia Lottery Corp. , 290 Ga. 87, 88 (1), 718 S.E.2d 801 (2011). Although our Constitution does not define the "departments and agencies" of the State, and our judicial understanding of "state instrumentalities" has shifted over time, ¹ as will be discussed more fully below, sovereign immunity in those contexts has been applied to a lottery corporation, the Georgia Ports Authority, a charter school corporation, a multi-county community service board, and a single-county building authority, among others. The question before us is whether a city housing authority is a State agency, department or instrumentality. ²

The Housing Authority argues that it is inherently entitled to immunity under common law, that Georgia's current constitution delineates how sovereign immunity may be waived, and that we "should hold that housing authorities are, by default, protected by immunity and that Files must therefore establish a statutory waiver of immunity." In support of this contention, the Housing Authority points to Lathrop v. Deal , 301 Ga. 408, 422-424, 801 S.E.2d 867 2017, which finds that the 1991 constitutional amendment to Ga. Const. Art. I, Sec. II, Par. IX "carried forward the constitutional reservation of sovereign immunity at common law as it was understood in Georgia," that "the doctrine of sovereign immunity was born at common law, and it was that doctrine – sovereign immunity at common law as understood traditionally by the Georgia courts – that had been reserved constitutionally," and that "the sweep of sovereign immunity under the Georgia Constitution is broad[.]" (Citations, punctuation, and emphasis omitted.) Id. It is true that our courts have recognized that

[t]he common law doctrine of sovereign immunity, adopted by this state in 1784, protected governments at all levels from unconsented to legal actions. A 1991 amendment to the Georgia Constitution reiterates that "sovereign immunity extends to the state and all its departments and agencies." Ga. Const. of 1991, Art. I, Sec. II, Par. IX (e).

Dollar v. Olmstead , 232 Ga. App. 520, 522 (2), 502 S.E.2d 472 (1998). But, contrary to the Housing Authority's contention, we still must determine – as our Supreme Court and this Court have consistently done over the course of many years – what entities, in particular, constitute State departments, agencies, or instrumentalities. Were we to fail to make such a determination, and simply find without analysis that housing authorities were State agencies, instrumentalities, or departments, we would in effect be saying that the prior case law by our appellate courts engaging in just such an analysis was merely superfluous. This we will not do.

As noted above, our Constitution does not define what entities constitute "the state and all of its departments and agencies," nor does it define state "instrumentalities." ³

To determine whether an entity is an instrumentality, department, or agency of the State for sovereign immunity purposes, the Supreme Court of Georgia has established various standards over time. In Miller v. Georgia Ports Auth. , 266 Ga. 586, 587-588, 470 S.E.2d 426 (1996), the Court examined primarily two factors: the legislation creating the Georgia Ports Authority and the public purposes for which it was created. The Miller Court, however, also referenced the ports authority's geographic scope, finding that its authorizing legislation charged it with the "power to develop, improve, and maintain the harbors and seaports of the state. " (Emphasis supplied.) Id. On those bases, the Court concluded that the ports authority was entitled to sovereign immunity because it was a State administrative unit responsible for the State's docks. In Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd. , 273 Ga. 715, 545 S.E.2d 875 (2001), the Supreme Court found that a community service board was entitled to sovereign immunity as a "state department or agency." As in Miller , the Youngblood Court examined "the law creating and defining community service boards" and the "public purpose" such boards serve by providing mental health care and services to Georgia citizens. Id. at 716 (1), 545 S.E.2d 875. The Supreme Court additionally examined the board's geographic service area – "multi-county" – and noted that it was "publicly funded" but did not address what entity provided the funding. Id.

In Kyle , the Supreme Court determined that the Georgia Lottery Corporation was entitled to assert the defense of sovereign immunity, again examining the legislation that created the corporation and its purpose of marketing and selling lottery tickets to benefit the State's educational system. 290 Ga. at 91 (1), 718 S.E.2d 801. The Court then continued to expand its analytical methodology by examining Code sections related to the corporation regarding its economics and its governance and management. The Court found that the corporation was governed by a board of directors appointed by the governor, that its net proceeds were distributed to the State treasury, and that it was "accountable to the General Assembly and the public through a system of audits and reports." Id. As a result, the Kyle Court found, "the purpose, function and management of the [Georgia Lottery Corporation] are indelibly intertwined with the State in a manner that qualifies it for the protection of sovereign immunity as a State instrumentality. Miller , supra." Id.

More recently, relying on both Miller and Kyle , this Court in Campbell v. Cirrus Education, Inc. , 355 Ga. App. 637, 845 S.E.2d 384 (2020) examined whether a charter school corporation was entitled to sovereign immunity. Campbell looked at the Miller factors, finding that the charter school corporation was regulated by and "operates as a public school under a charter that was approved by the State Charter Schools Commission...." Id. at 638, 642 (2), 845 S.E.2d 384. Campbell additionally discussed the charter school's geographic service area, noting that it had a "state-wide attendance zone." Id. at 638, 845 S.E.2d 384. It further examined how the charter school was financed, noting that its funding was "subject to appropriations from the General Assembly." Id....