Archive for June, 2011

Entry of Default Judgment Does Not Bar Assertion of Official Immunity

In Cosby v. Lewis, 2011 WL 1018996 (Ga.App., 2011), the parents of a high school student who drowned in a hotel pool during a class trip brought a wrongful death action against the school district and several of its employees. The defendants, who were employees of the high school, served as chaperones for the trip and had left the hotel shortly after checking in to get something to eat. Meanwhile, several students decided to go swimming and one of the students drowned. The student’s parents sued the defendants in their official and individual capacities. As a result of some confusion regarding whether they had been served, the defendants failed to timely file answers. The defendants thereafter filed a motion to dismiss based upon sovereign and official immunity. The trial court dismissed the claims in their official capacities but granted a default judgment against them in their personal capacities, holding that they were not entitled to the “defense” of official immunity.

On appeal, the defendants argued the trial court lacked jurisdiction to enter a default judgment because they were entitled to official immunity. The doctrine of official immunity, also known as qualified immunity, shields public employees from suit when they negligently perform discretionary acts. Official immunity is not a mere defense but rather an entitlement not to be sued that must be addressed as a threshold matter before a lawsuit may proceed. In reversing the trial court, the Georgia Court of Appeals held that because the lawsuit arose from actions the defendants took in their official capacities as employees of the school, the entry of default judgment did not bar the defendants from asserting official immunity. The Court remanded the case back to the trial court to determine whether the defendants’ acts were ministerial or discretionary in nature.

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


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