THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 16, 2016
In the Court of Appeals of Georgia
A15A2081. CALLOWAY et al. v. CITY OF WARNER ROBINS et
al.
MCFADDEN, Judge.
The appeal in this wrongful death action is from the grant of summary
judgment to a city and city clerk on sovereign immunity grounds. Because there exist
no genuine issues of material fact as to the applicability of the doctrine of sovereign
immunity, we affirm.
“Summary judgment is appropriate when no genuine issues of material fact
remain and the moving party is entitled to judgment as a matter of law.” Stennette v.
Miller, 316 Ga. App. 425, 426 (729 SE2d 559) (2012) (citation omitted). On appeal,
we review a trial court’s grant or denial of summary judgment de novo, construing
the evidence and all reasonable inferences therefrom in the light most favorable to the
nonmoving party. SKC, Inc. v. eMag Solutions, 326 Ga. App. 798 (755 SE2d 298)
(2014).
So viewed, the evidence shows that the City of Warner Robins issued a
business license/occupation tax permit to Sheila Henderson, authorizing her to
operate a child day care service. On July 31, 2011, three-year-old Andrew Calloway
was at the day care facility when he died of heat stroke. He had been left inside an
automobile for several hours. Andrew and Brittany Calloway, the child’s parents,
filed a wrongful death action against Henderson, and day care workers Martha
Andrews and Johnnie Mae Grayer - as well as the City of Warner Robins, and City
Clerk Alton Mattox.
With regard to the city and Mattox, the complaint alleged that they had
negligently issued the business license to Henderson without following certain
procedures. The city and the city clerk moved for summary judgment, and the trial
court granted the motion on the grounds that the claims against them are barred by the
doctrine of sovereign immunity and that their conduct did not proximately cause the
child’s death. The Calloways appeal.
1. Sovereign immunity.
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The Calloways contend that the trial court erred in finding that both the City
of Warner Robins and the city clerk are immune from suit under the doctrine of
sovereign immunity. We disagree.
As our Supreme Court has explained, the question of soverign immunity turns,
in this context, on the distinction between ministerial duties and governmental
functions.
Under Georgia law, municipal corporations are protected by
sovereign immunity pursuant not to Article I of the Constitution but
rather Article IX, Section II, Paragraph IX, unless that immunity is
waived by the General Assembly. With particular regard to municipal
corporations, our General Assembly has enacted OCGA § 36-33-1
which reiterates that ‘it is the public policy of the State of Georgia that
there is no waiver of the sovereign immunity of municipal corporations
of the state and such municipal corporations shall be immune from
liability from damages.’ OCGA § 36-33-1 (a). The same statute,
however, also provides for a narrow waiver of a municipal corporation’s
sovereign immunity, expressly providing in subsection (b) that
‘municipal corporations shall not be liable for failure to perform or for
errors in performing their legislative or judicial powers. For neglect to
perform or for improper or unskillful performance of their ministerial
duties, they shall be liable.’ OCGA § 36-33-1 (b). This provision has for
more than a century been interpreted to mean that municipal
corporations are immune from liability for acts taken in performance of
a governmental function but may be liable for the negligent performance
of their ministerial duties. The propriety of the trial court’s ruling on
[the] motion [for summary judgment] thus turns on whether [the city and
the clerk’s issuance of a business license] involved a governmental
function.”
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City of Atlanta v. Mitcham, 296 Ga. 576, 577-578 (1) (769 SE2d 320) (2015)
(citations and punctuation omitted).
a. City of Warner Robins.
As the trial court correctly found, a municipality’s “issuance of a permit or
license is a governmental function[.]” Boatwright v. Flemington, 189 Ga. App. 676,
677 (3) (377 SE2d 1) (1988), reversed on other grounds by Flemington v. Boatwright,
259 Ga. 175 (377 SE2d 843) (1989). See also City of Thomson v. Davis, 92 Ga. App.
216, 218-219 (1) (88 SE2d 300) (1955) (municipality’s act of granting or revoking
a business license constitutes a governmental function). Thus, even assuming, as
alleged in the complaint, that the City of Warner Robins negligently issued the
business license to Henderson, the city is still immune from suit for the negligent
exercise of that governmental function. Under the doctrine of sovereign immunity,
a “municipality is exempt from liability for an injury resulting from the failure to
exercise [governmental functions] or from their improper or negligent exercise.” City
of Atlanta, supra at 579 (2) (citation omitted). See also Hurley v. City of Atlanta, 208
Ga. 457, 458 (67 SE2d 571) (1951) (city not liable for negligent performance of
governmental function). And because there is no evidence of a “waiver of the [c]ity’s
sovereign immunity in this case, [the Calloways are] precluded from pursuing [their]
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negligence claims against . . . the City [of Warner Robins.]” City of Atlanta, supra at
583 (3) (citations omitted).
b. City Clerk Mattox.
The Calloways argue that City Clerk Mattox was sued in his individual
capacity and thus is not entitled to the protection of sovereign immunity. However,
a review of the complaint plainly contradicts the argument and reveals that Mattox
was sued only in his official capacity. The style of the complaint does not indicate,
as it did with other named defendants, that Mattox was being sued in his individual
capacity; rather, it named Mattox as a defendant only “in his Official Capacity as City
Clerk of City of Warner Robins, Georgia.” Moreover, the body of the complaint
identified Mattox as the city clerk and averred that he “served in this capacity at all
times relevant to the facts underlying this lawsuit.” Likewise, the complaint also
stated that “[a]t all times relevant to the facts set forth in this Complaint, Defendant
Mattox was acting under his authority as the City Clerk of Warner Robins and to
further the business of the City of Warner Robins.” Thus, it is clear that Mattox was
not sued in his individual capacity and was instead sued only in his official capacity.
See Board of Commissioners of Glynn County v. Johnson, 311 Ga. App. 867, 871-873
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(2) (717 SE2d 272) (2011) (complaint clearly showed that members of board of
commissioners were sued only in their official capacities).
“Suits against public employees in their official capacities are in reality suits
against the state and, therefore, involve sovereign immunity.” Cameron v. Lang, 274
Ga. 122, 126 (3) (549 SE2d 341) (2001) (citation and punctuation omitted). The
Calloways are therefore precluded from pursuing their negligence claims against
Mattox in his official capacity. See City of Atlanta, supra. Accordingly, “we affirm
the trial court’s [summary judgment] order as to [the] claims asserted against [Mattox]
in his official capacity.” Jobling v. Shelton, 334 Ga. App. 483, 486 (1) (779 SE2d
705) (2015). See also Campbell v. Goode, 304 Ga. App. 47, 50 (2) (695 SE2d 44)
(2010) (claim against a city police officer in his official capacity was, in reality, a suit
against the city and was thus barred by sovereign immunity).
2. Proximate cause.
Because of our holdings above affirming the grant of summary judgment to the
city and city clerk on sovereign immunity grounds, we need not address “the
alternative ground [of no proximate cause] relied upon by the trial court.” Gwinnett
Place Associates v. Pharr Engineering, 215 Ga. App. 53, 55 (2) (449 SE2d 889)
(1994).
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Judgment affirmed. Ellington, P. J., and Dillard, J., concur.
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