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Elarbee Thompson Prevails in Significant Sovereign Immunity Wrongful Death Case Before Georgia Supreme Court

     In a much anticipated decision on the applicability and scope of sovereign immunity to Georgia municipalities, the Georgia Supreme Court has reaffirmed the public policy of the State that municipalities are immune from liability for damages, absent a waiver by the General Assembly.  In Gatto v. City of Statesboro, the parents of a college student filed suit against the City of Statesboro and the City Clerk alleging claims for negligence and nuisance after the student was killed during an altercation with a bouncer at a bar.  The parents sought to hold the City liable for their son’s death by arguing that the City knowingly failed to address issues of underage drinking and violence in the Plaza and, therefore, acted negligently and maintained a nuisance, which proximately caused the death.  The plaintiffs argued that the City should have exercised its governmental powers to abate the alleged nuisance by revoking the alcohol and business licenses of the University Plaza bars that were allegedly in violation of City ordinances, which, in turn would have resulted in the closure of the bars and ultimately, prevented their son’s death.


     The trial court granted summary judgment to the defendants, and the Court of Appeals affirmed summary judgment in favor of the City on sovereign immunity grounds.  The sole issue on appeal to the Supreme Court was whether the City’s alleged conduct fell within the so-called “nuisance exception” to sovereign immunity, which applies when a municipality creates or maintains a nuisance which constitutes either a danger to life and health or a taking of property, a concept rooted in the Takings Clause of the Georgia Constitution.  The Supreme Court held that a municipality is entitled to immunity for nuisance claims resulting in personal injuries or death based on conduct related to property that the City neither owns nor controls, including any alleged failure to abate a nuisance maintained on, or with respect to another’s property.  In other words, a municipality does not have a duty to exercise their governmental powers to abate a nuisance created by private individuals, on private property that the City neither owns nor controls.


     It is important to note that the General Assembly has enacted legislation to allow a municipality to waive its immunity from liability for damages through the purchase of liability insurance, if the policy “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.”  O.C.G.A. § 36-33-1.  In this case, the City’s insurance policy contained an endorsement that expressly excluded from coverage any claims for which sovereign immunity would apply.  While the Supreme Court did not address the issue, the lower courts held that the City’s insurance policy did not cover the nuisance and negligence claims and, therefore, the City’s immunity had not been waived.


     This is an important case for Georgia municipalities because it avoids the slippery slope that could have resulted with a contrary ruling, and reaffirms that municipalities have discretion in determining when, how, and to what extent, to exercise its governmental powers to abate a private nuisance, on private property, if at all.  


     Below is a link to the full opinion.


     The briefing and oral argument were handled by Partners John C. Stivarius, Jr. and Tracy L. Glanton.


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