Gatto v. City of Statesboro

312 Ga. 164

860 S.E.2d 713

GATTO et al.

v.CITY OF STATESBORO et al.

S20G0651

Supreme Court of Georgia.

Decided: June 21, 2021

Reconsideration Dismissed July 15, 2021

Michael Brian Terry, Naveen Ramachandrappa, Amanda Kay Seals, Bondurant, Mixson & Elmore, LLP, 1201 West Peachtree Street, N.W., Suite 3900, Atlanta, Georgia 30309-3417, Gilbert H. Deitch, Kara Elizabeth Phillips, William Michael D'Antignac, Andrew Timothy Rogers, Deitch & Rogers, LLC, 5881 Glenridge Drive, Plaza 400, Suite 160, Atlanta, Georgia 30328, George Brian Spears, G. Brian Spears, P.C., 1126 Ponce de Leon Avenue, N.E., Atlanta, Georgia 30306, Charles Edwin Johnson, III, Foy & Associates, 3343 Peachtree Rd NE, Ste 350, Atlanta, Georgia 30326, for Appellant.

Craig T. Jones, Craig T. Jones, PC, PO Box 129, Washington, Georgia 30673, for Amicus Appellant.

Richard Read Gignilliat, John Campbell Stivarius, Jr., Tracy Lynn Glanton, Elarbee, Thompson, Sapp & Wilson, LLP, 229 Peachtree Street, NE, 800 International Tower, Atlanta, Georgia 30303, for Appellee.

Seth Michael Friedman, Lewis Brisbois Bisgaard and Smith, 600 Peachtree Street, NE, Suite 4700, Atlanta, Georgia 30308, Rusi Chandrashkhar Patel, Emily Clare Hirst, Georgia Municipal Association, Inc., 201 Pryor Street, SW, Atlanta, Georgia 30303, for Amicus Appellee.

LaGrua, Justice.

Michael and Katherine Gatto filed suit against the City of Statesboro and City Clerk Sue Starling, alleging negligence and maintenance of a nuisance, after their son, Michael, died following an altercation at a bar in the University Plaza area of the City. The trial court granted summary judgment to both defendants, based in part on sovereign immunity. The Court of Appeals affirmed as to the City, solely on the ground of sovereign immunity. See Gatto v. City of Statesboro , 353 Ga. App. 178 (1), (2), 834 S.E.2d 623 (2019). This Court granted certiorari to consider the contours of municipal immunity¹ with respect to nuisance claims. We hold that the City is immune from liability for the conduct alleged here, because municipalities have never faced liability for a nuisance claim based on alleged conduct related to property they neither own nor control, and nothing in our Constitution alters that principle. Accordingly, we affirm.

Viewing the evidence in favor of the Gattos as the parties opposing summary judgment, the Court of Appeals summarized the relevant facts as follows:

[O]n the evening of August 27, 2014, and early morning hours of August 28, 2014, eighteen-year-old Michael, an incoming freshman at Georgia Southern University, was at Rude Rudy's, a bar located in University Plaza, drinking with friends. In addition to Rude Rudy's, University Plaza was home to several other businesses that served alcohol, including Retrievers, Rusty's Tavern, and Rum Runners, and was within walking distance of the campus of Georgia Southern University. Told by a bartender that Michael was stealing money from the tip jar, Grant James Spencer ("Spencer"), a bouncer at Rude Rudy's, went to remove Michael from the bar. Spencer struck Michael five times in the head/face, until he was limp and unconscious, and then dropped him on the floor of the bar. After Spencer heard Michael's head hit the floor of the bar, he dragged him outside and left him. Michael was discovered by emergency personnel and airlifted to a hospital in Savannah, where he died on the afternoon of August 28, 2014. Spencer pled guilty to voluntary manslaughter, and was sentenced to 20 years in prison.

Gatto , 353 Ga. App. at 178-179, 834 S.E.2d 623 (footnotes omitted). It is undisputed that, at the time of the altercation leading to Michael's death, Rude Rudy's was a privately owned business operating out of retail premises leased from a separate, privately owned corporation. As such, the City had no ownership interest in Rude Rudy's or in any of the property comprising University Plaza.

Nonetheless, based on evidence that the establishments in University Plaza routinely admitted and served alcohol to underage patrons, that violence in the Plaza was common, and that the City had knowingly failed to address these issues, the Gattos asserted that the City and Starling had acted negligently and that the City was maintaining a nuisance, which proximately caused Michael's death. Specifically, the Gattos alleged that Starling had negligently breached a ministerial duty to set due process hearings upon her receipt of notices of ordinance violations by University Plaza establishments; that the City was vicariously liable for these breaches by Starling; that the City's renewal of business and alcohol licenses for Plaza establishments without regard to the pattern of illegal and dangerous activities at the Plaza constituted a breach of its duty of ordinary care; and that the defendants’ history of acts and omissions in allowing the Plaza's establishments to remain in operation despite the dangerous pattern of unlawful activities at the Plaza constituted a continuing nuisance.

On the defendants’ motion, the trial court granted summary judgment, holding that the claims against the City and Starling were barred by sovereign immunity and, alternatively, that the causal chain between the defendants’ acts and Michael's injuries and death was broken by intervening criminal acts of Michael and Spencer. On appeal, the Court of Appeals, in pertinent part, affirmed the trial court's holding that the Gattos’ claims against the City were barred by sovereign immunity. See Gatto , 353 Ga. App. at 183 (1), 834 S.E.2d 623.² As to this issue, the Court of Appeals rejected the Gattos’ contention that the City's conduct here fell within a so-called "nuisance exception" to sovereign immunity. See City of Thomasville v. Shank , 263 Ga. 624, 625 (1), 437 S.E.2d 306 (1993) (explaining that "a municipality is liable for creating or maintaining a nuisance which constitutes either a danger to life and health or a taking of property"). This Court granted certiorari to address that holding.

1. Municipalities performing their governmental functions have long been afforded immunity from civil liability akin to the immunity afforded to the State. As early as 1880, this Court held that municipalities enjoyed "the same immunity" as the State in their performance of "acts which are legislative or judicial in their nature," on the ground that such acts "are deemed to be but the exercise of a part of the state's power." Rivers v. City Council of Augusta , 65 Ga. 376, 378 (1880) ; see also Mayor & Aldermen of City of Savannah v. Jordan , 142 Ga. 409, 409, 83 S.E. 109 (1914) (a municipality is exempt from liability where it "undertakes to perform for the [s]tate duties which the [s]tate itself might perform"). Though originating in the common law, the doctrine of municipal immunity now enjoys constitutional status. See Ga. Const. of 1983, Art. IX, Sec. II, Par. IX (recognizing "the immunity of counties, municipalities, and school districts"); see also OCGA § 36-33-1 (a) (citing this constitutional provision and declaring municipal immunity to be "the public policy of the State of Georgia"); City of Atlanta v. Mitcham , 296 Ga. 576, 577 (1), 769 S.E.2d 320 (2015) (discussing constitutional basis for municipal immunity).³ Under our current Constitution, municipal immunity may be waived only by the General Assembly. See Ga. Const. of 1983, Art. IX, Sec. II, Par. IX ("The General Assembly may waive the immunity of counties, municipalities, and school districts by law.").

With regard to the operation of municipal immunity, Georgia courts have traditionally distinguished "governmental" acts, as to which such immunity applies, from acts that are "ministerial," as to which it does not. See, e.g., Cornelisen v. City of Atlanta , 146 Ga. 416, 416-417 (1), 91 S.E. 415 (1917) ; Rivers , 65 Ga. at 378-379. This distinction is codified as follows:

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.

OCGA § 36-33-1 (b) ; see also Mitcham , 296 Ga. at 577-578 (1), 769 S.E.2d 320 ("[M]unicipal corporations are immune from liability for acts taken in performance of a governmental function but may be liable for the negligent performance of their ministerial duties."). In this context, "governmental" functions are those that are "intended for the benefit of the public at large," while "ministerial" functions are those

involving the exercise of some private franchise, or some franchise ... exercise[d] for the private profit or convenience of the [municipal] corporation or for the convenience of its citizens alone, in which the general public has no interest.

Mitcham , 296 Ga. at 578 (2), 769 S.E.2d 320 (citation and punctuation omitted); see also Cornelisen , 146 Ga. at 416, 91 S.E. 415. Compare, e.g., Jordan , 142 Ga. at 409, 83 S.E. 109 (public sanitation is a governmental function); Calloway v. City of Warner Robins , 336 Ga. App. 714, 715 (1) (a), 783 S.E.2d 175 (2016) (issuance of a business license is a governmental function), with, e.g., City Council of Augusta v. Owens , 111 Ga. 464, 477 (7), 36 S.E. 830 (1900) (operation of city-owned rock quarry is a ministerial function).⁴ Thus, where a municipality performs the functions of a sovereign, it enjoys immunity for injuries resulting from the improper or negligent performance, or the failure to perform, those functions. See Mitcham , 296 Ga. at 579 (2), 769 S.E.2d 320.⁵

2. Even in the exercise of its governmental functions, however, a municipality does not enjoy immunity from all liability. This Court has held that, although protected from liability as to negligence actions,

[a] municipality[,] like any other individual or private corporation[,] may be liable for damages it causes to a third party from the operation or maintenance of a nuisance , irrespective of whether it is exercising a

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