Archive for April, 2009

County Immunity Not Waived by Community Service Act

The sovereign immunity doctrine provides that a sovereign or state cannot commit a legal wrong and thus is immune from civil suit or criminal prosecution. For some situations, however, governments have waived its immunity to allow for suits. Recently, the Supreme Court of Georgia clarified that O.C.G.A. § 42-8-71, also known as the “Community Service Act,” does not waive a county’s sovereign immunity. Currid v. Dekalb State Court Probation Department, — S.E.2d —-, 2009 WL 735641 (Ga. 2009).

In Currid, Vincent Currid was ordered to perform community service based on a DUI plea deal. While performing this community service, Currid fell off a DeKalb County sanitation truck and eventually died from the resulting injuries. DeKalb County relied on the Community Service Act to claim that it was immune from liability. The Community Service Act specifically provides that:
“No agency or community service officer shall be liable at law as a result of any of his acts performed while participating in a community service program. This limitation of liability does not apply to actions on the part of any agency or community service officer which constitute gross negligence, recklessness, or willful misconduct.”

O.C.G.A. § 42-8-71(d).
The Trial Court agreed with Dekalb County because there was no showing of gross negligence concerning Currid’s assignment. The Court of Appeals reversed, holding that whether Currid’s assignment to a sanitation truck was gross negligence was a jury question. Currid v. Dekalb State Court Probation Department, 274 Ga.App. 704, 618 S.E. 2d 90 (2005). Upon remand, the trial court denied DeKalb County’s motion to limit damages based on sovereign immunity and OCGA § 33-24-51. On appeal, the Court of Appeals reversed and held that the language of the Community Service Act barred the claims against DeKalb County.

The Supreme Court of Georgia affirmed. In doing so, it explained that implied waivers of sovereign immunity are not favored. For a waiver of sovereign immunity to be shown, the statutory language must state: (1) a waiver of sovereign immunity; and (2) the extent to which the immunity is waived. The Court held that the Community Service Act did neither of these things. Instead, the statute limits the liability of those partaking in community service programs that typically would not be immune from legal action. It does not state that those who are immune from lawsuit have waived that immunity by participating in a community service program. Therefore, DeKalb County’s sovereign immunity was not waived by the Community Service Act.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

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