One question that comes to mind is whether the government or local municipality is immune from legal actions when they were the ones who caused the wreck.
- What is immunity?
An immunity is a defense that applies to an entire class of persons on their relationship with the prospective injured party (plaintiff). More specifically, this special relationship could be the nature of their occupation, their status as a government or charitable entity, etc.
- What is Government immunity?
At English common law, “sovereign immunity,” i.e., immunity of the king, developed. The doctrine, which was connected to the divine right of the kings, was sometimes expressed by saying that “the king can do no wrong.”
Early American courts applied the English rule to hold that the United States could not be sued without its consent. The first major and meaningful consent by the United States to tort claims was embodied in the 1946 Federal Tort Claims Act (FTCA). Because this Act continues today to be dispositive of almost all possible tort claims against the government, its provisions are worth looking at in detail.
- General provision: The FTCA generally provides that money damages may be recovered against the United States “… for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while action within the scope of his office or employment,” if the claim is such that the U.S. could be sued if it were a private person. This means that in any situation in which the doctrine of respondeat superior would apply if the tortfeasor were a private employee, the U.S. may be sued by use of that same doctrine. 28 U.S.C.A. §1346(b).
- Exceptions. There are several exceptions to this rule that is not relevant to our discussion.
- Georgia Law.
Under the provisions of O.C.G.A. § 36-92-3, a local government officer or employee who commits a tort while using a government vehicle to perform his official duties for the local government is not subject to a lawsuit or liability. The Code section reads as follows:
Any local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefor. Nothing in this chapter, however, shall be construed to give the local government officer or employee immunity from suit and liability if it is proved that the local government officer’s or employee’s conduct was not within the performance of his or her official duties.
What does this mean? This means if a police officer is driving his vehicle while in pursuit of another car and crashes into another uninvolved vehicle cannot be held liable. However, under subsection 3(b), the local government and not the police officer involved in the wreck would be the only responsible party. Suppose the police officer is named in the lawsuit. In that case, they are immediately dismissed as a party involved as a matter of law because they were performing their official duties. Furthermore, subsection (d) states the following:
… a settlement or judgment in an action or settlement on a claim brought pursuant to this chapter constitutes a complete bar to any further action by the claimant against a local government officer or employee or the local government entity by reason of the same occurrence.
[sovereign] immunity may be waived by the purchase of liability insurance in only three situations: (1) as provided in OCGA § 33-24-51 — where the insurance covers “the negligence of any duly authorized officer, agent, servant, attorney, or employee” that causes damages “arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation”; (2) as provided in OCGA § 36-92-2 — where the insurance covers losses arising from “the negligent use of a covered motor vehicle”; or (3) where “the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy.” OCGA § 36-33-1(a).
As of January 1, 2008, the statutory waiver subjected a local government entity to liability for negligent operation of a motor vehicle of up to “$500,000.00 because of bodily injury or death of any one person in any one occurrence, an aggregate amount of $700,000.00 because of bodily injury or death of two or more persons in any one occurrence, and $50,000.00 because of injury to or destruction of property in any one occurrence.” This statutory waiver applies to the liability of a local government entity even if the local government does not obtain motor vehicle insurance covering its motor vehicles. Additionally, any action against any government entity must be brought in the Superior Court of the County where the government entity is located.
- Is the government liable in cases where a police officer is in pursuit of a suspect and the suspect causes a crash?
O.C.G.A. § 40-6-6(d)(2) provides that
[w]hen a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. Where such reckless disregard exists, the pursuit may be found to constitute a proximate cause of the damage, injury, or death caused by the fleeing suspect, but the existence of such reckless disregard shall not in and of itself establish causation.
- The Georgia Tort Claims Act (GTCA)
The Georgia Tort Claims Act constitutes the exclusive remedy for any tort committed by a state officer or employee. O.C.G.A. § 50-21-25(a). Additionally, under GTCA anyone who wishes to bring a claim against the State needs to follow under the requirements of O.C.G.A. § 50-21-26(a) certain statutory provisions:
- Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered;
- Notice of a claim shall be given in writing and shall be mailed by certified mail or statutory overnight delivery, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services;
- In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim. Each state government entity may designate an office or officer within that state government entity to whom a notice of claim is to be delivered or mailed;
- Any complaint filed pursuant to this article must have a copy of the notice of claim presented to the Department of Administrative Services together with the certified mail or statutory overnight delivery receipt or receipt for other delivery attached as exhibits. If failure to attach such exhibits to the complaint is not cured within 30 days after the state raises such issue by motion, then the complaint shall be dismissed without prejudice; and
- A notice of claim under this Code section shall state, to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following:
- The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim;
- The time of the transaction or occurrence out of which the loss arose;
- The place of the transaction or occurrence;
- The nature of the loss suffered;
- The amount of the loss claimed; and
- The acts or omissions which caused the loss.
- No action may be commenced under this article following presentation of a notice of claim until either the Department of Administrative Services has denied the claim or more than 90 days have elapsed after the presentation of the notice of claim without action by the Department of Administrative Services, whichever occurs first.
Have you been injured in an accident?
If you or a loved one has recently been injured in a Georgia accident that you believe was due to the negligence of a government employee or entity, you may be entitled to monetary compensation.
AJ Law Practice can help with your car wreck case to obtain the compensation you deserve.