State immunity and exceptions in Georgia truck injury claims

Scope of the waiver in O.C.G.A. 50-21-23

Section 50-21-23(a) provides that the state "waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment". The same subsection makes the state liable for such torts as a private individual or entity would be liable under like circumstances. That liability comes with a proviso: the state's sovereign immunity is waived "subject to all exceptions and limitations set forth in this article." The official code hierarchy places Section 50-21-24, which lists exceptions to state liability, and Section 50-21-29, which limits damages, in the same Article 2 as Section 50-21-23. Subsection (a) names state officers and employees, so a truck driver holding such a position comes under its terms when acting within that scope. For truck drivers employed by the state, the same proviso makes the waiver subject to the exceptions in Section 50-21-24 and the limitations in Section 50-21-29.^[1][2][3]

Subsection (a) of Section 50-21-23 also provides that the state "shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment". Applied to a truck crash, that sentence leaves the state with no liability for losses resulting from a state employee's conduct that was not within that scope. For truck crashes, the dividing line in Section 50-21-23(a) is whether the state officer or employee acted within the scope of official duties or employment. Section 50-21-23(a) does not itself define when particular conduct was within the scope of duties, and this entry does not cover other provisions of Article 2, State Tort Claims (Sections 50-21-20 to 50-21-37), or court decisions on that question.^[1]

Section 50-21-23(b) provides that the state waives its sovereign immunity "only to the extent and in the manner provided in this article and only with respect to actions brought in the courts of the State of Georgia". The subsection continues: "The state does not waive any immunity with respect to actions brought in the courts of the United States." For a truck accident claim against the state, subsection (b) draws its line by court system, with no immunity waived for actions in the courts of the United States. For truck crashes, subsection (b) limits the waiver to actions in Georgia state courts, to the extent and in the manner the article provides.^[1]

The history line on the official code page for Section 50-21-23 lists it as Code 1981, Section 50-21-23, enacted by Ga. L. 1992, p. 1883, section 1.^[1]

Exceptions for statutory execution, discretionary functions and governmental action

O.C.G.A. 50-21-24 states that "The state shall have no liability for losses resulting from" each matter set out in its numbered paragraphs. Paragraph (1) covers "An act or omission by a state officer or employee exercising due care in the execution of a statute, regulation, rule, or ordinance", whether or not that statute, regulation, rule or ordinance is valid. When a loss in a truck accident resulted from such an act or omission and due care was exercised, paragraph (1) states that the state has no liability for that loss. For truck drivers who are state officers or employees, paragraph (1) names an act or omission made while exercising due care in carrying out a statute, regulation, rule or ordinance.^[2]

Paragraph (2) of Section 50-21-24 covers "The exercise or performance of or the failure to exercise or perform a discretionary function or duty" on the part of a state officer or employee, "whether or not the discretion involved is abused". The paragraph applies to a failure to exercise or perform such a function or duty as well as to its exercise or performance. In a truck crash claim against the state, the exception reaches losses resulting from a discretionary function or duty performed, or not performed, by a state officer or employee. Paragraph (2) does not itself define a discretionary function or duty, and this entry does not cover other provisions of Article 2 or court decisions on how the discretionary function exception applies to particular facts.^[2]

Paragraph (4) of Section 50-21-24 covers "Legislative, judicial, quasi-judicial, or prosecutorial action or inaction". Paragraph (5) covers "Administrative action or inaction of a legislative, quasi-legislative, judicial, or quasi-judicial nature". Under each of these paragraphs, the state has no liability for losses resulting from the described action or inaction, including in a truck crash claim against the state where the loss resulted from that action or inaction. Where a loss arising from truck crashes resulted from legislative, judicial, quasi-judicial or prosecutorial action or inaction, paragraph (4) applies by its terms.^[2]

Exceptions for highway design, inspections, licensing and Guard activities

Paragraph (10) of Section 50-21-24 covers "The plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works". That exception applies where such plan or design "is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design". For a truck crash on a highway, road, street or bridge, paragraph (10) concerns losses resulting from the plan or design, and it is tied to that substantial compliance condition. Paragraph (10) also names other public works, and it applies to truck accidents tied to the plan or design of such works on the same substantial compliance condition.^[2]

Paragraph (8) of Section 50-21-24 covers "Inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state". The inspections it describes are those made to determine whether the property complies with or violates any law, regulation, code or ordinance, or contains a hazard to health or safety. In a truck accident claim against the state that involves such an inspection, paragraph (8) by its terms reaches inspections of property other than property owned by the state. Paragraph (8) names both the failure to make an inspection and an inadequate or negligent inspection, and in truck crashes each applies to property other than property owned by the state.^[2]

Paragraph (9) of Section 50-21-24 covers "Licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of" any permit, license, certificate, approval, order or similar authorization. It also covers the failure or refusal to issue, deny, suspend or revoke such an authorization. Where the loss in a truck accident resulted from a licensing power or function of that kind, such as the issuance of a license, paragraph (9) states that the state has no liability. For truck drivers, paragraph (9) names the issuance, denial, suspension or revocation of a license, along with a failure or refusal to act on one.^[2]

Paragraph (12) of Section 50-21-24 covers "Activities of the Georgia National Guard or organized militia as defined in Code Section 38-2-2 when engaged in state or federal training or duty". The paragraph then states "but this exception does not apply to vehicular accidents". When a truck crash is a vehicular accident involving those Guard or militia activities, the paragraph (12) exception does not apply by its own terms. That proviso is part of paragraph (12) and is not attached to the other numbered paragraphs of Section 50-21-24.^[2]

Tax, law enforcement, intentional tort, financial oversight and date-processing exceptions

Paragraph (3) of Section 50-21-24 covers "The assessment or collection of any tax or the detention of any goods or merchandise by any law enforcement officer". Paragraph (6) covers civil disturbance, riot, insurrection or rebellion, along with the failure to provide, or the method of providing, "law enforcement, police, or fire protection". In a truck crash claim against the state, these paragraphs apply where the loss resulted from one of the matters they list. Where goods or merchandise carried by a truck driver are detained by a law enforcement officer, paragraph (3) names that detention among the matters for which the state has no liability for resulting losses.^[2]

Paragraph (7) of Section 50-21-24 covers losses resulting from assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander or interference with contractual rights. Under paragraph (7), the state has no liability for losses resulting from those torts, including in a truck accident claim against the state that is based on one of them. Paragraph (11) covers financing regulatory activities, including, but not limited to, examinations, inspections, audits or other financial oversight activities. Paragraph (11) applies to truck accidents involving the state where the loss resulted from financing regulatory activities of that kind.^[2]

Paragraph (13) of Section 50-21-24 covers "Any failure or malfunction occurring before December 31, 2005, which is caused directly or indirectly by the failure of computer software or any device containing a computer processor" to accurately or properly recognize, calculate, display, sort or otherwise process dates or times. That exception applies if the failure or malfunction causing the loss was unforeseeable. It also applies if the failure or malfunction was foreseeable but the plan or design for identifying and preventing it was prepared in substantial compliance with generally accepted computer and information system design standards in effect when the plan or design was prepared. For truck crashes, paragraph (13) concerns computer or processor failures in processing dates or times that occurred before December 31, 2005.^[2]

The history line on the official code page for Section 50-21-24 lists enactment by Ga. L. 1992, p. 1883, section 1, followed by Ga. L. 1998, p. 850, section 2, and Ga. L. 2018, p. 161, section 1 (HB 309).^[2]

Trial and damages caps under O.C.G.A. 50-21-29

Section 50-21-29(a) provides that trial of tort actions against the state under the article "shall be conducted by a judge with a jury". The same subsection adds that "the parties may agree that the same be tried by a judge without a jury". Under subsection (a), a truck accident action against the state brought under the article goes to a jury unless the parties agree to a trial by a judge without a jury.^[3]

Except as provided in paragraph (2) of subsection (b), Section 50-21-29(b)(1) provides that in any action or claim for damages brought under the article, no person may obtain a sum exceeding $1 million because of loss arising from a single occurrence, regardless of the number of state government entities involved. Subject to the same exception for paragraph (2), the paragraph provides that "the state's aggregate liability per occurrence shall not exceed $3 million". It also provides that "The existence of these caps on liability shall not be disclosed or suggested to the jury during the trial of any action brought under this article". In a truck crash that injures several people, the $1 million figure applies to each person for loss from that single occurrence, and the $3 million figure is the state's aggregate limit per occurrence, both subject to paragraph (2). For truck accidents involving more than one state government entity, the per-person figure under paragraph (1) does not change with the number of entities involved.^[3]

Section 50-21-29(b)(2) applies to any action or claim for damages brought under the article "pursuant to Article 8 of Chapter 8 of Title 31". In such an action, "any caps specified under Code Section 51-13-1, notwithstanding any applicability limitations specified in such Code section, shall serve as a total cap of all damages", regardless of the type of damages claimed. Paragraph (2) also provides that in no event shall the state's liability exceed the limits provided for in paragraph (1) of subsection (b), which are the $1 million figure per person for loss arising from a single occurrence and the $3 million aggregate figure per occurrence. The existence of this cap on liability also may not be disclosed or suggested to the jury during the trial of any action brought under the article. Paragraph (2) applies to truck accidents against the state when the action under the article is brought pursuant to Article 8 of Chapter 8 of Title 31.^[3]

The history line on the official code page for Section 50-21-29 lists enactment by Ga. L. 1992, p. 1883, section 1, followed by Ga. L. 2005, p. 1493, section 6 (HB 166).^[3]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)