dissenting.
The majority opinion holds that in performing his official duties and in exercising his discretion a school principal is immune from suit. I dissent.
While the notion of governmental immunity is now preserved and frozen in our state constitution (Code Ann. § 2-3401), I do not believe that governmental immunity should be extended to provide absolute protection to any action of a public official. Clark v. State of Ga., 240 Ga. 188 (240 SE2d 5) (1977). Here the principal’s act of allowing a rug and mat to be placed near a glass door, through which the plaintiff fell, is considered by the majority as discretionary. If this act is discretionary, then there are few others which will fall outside such classification. In effect, the broad protection of governmental or sovereign immunity is being substantially extended by the court. I see no limits to this expansion.
At best, the use of the discretionary function test to establish immunity results in a case by case determination of which officials will be immune from suit, leaving them, as well as the public, uncertain about who will be held responsible for non-discretionary official action injurious to the public. At worst, use of this test sets up "a finespun and more or less unworkable distinction between acts which are regarded as 'discretionary’... and those which are merely 'ministerial’...” Prosser, Law of Torts 987, 988, § 132 (4th Ed. 1971).
While this court is hamstrung by Code Ann. § 2-3401 and cannot abrogate the doctrine of sovereign immunity for local government entities as a majority of states have done (see Restatement of Torts Second, § 895 C, comment f.), I see no reason to further extend this archaic and unsound legal doctrine. The unfairness to a possible innocent victim of a principle of complete tort immunity is self-evident. "It is doubtful whether the purposes of tort law are well served by the immunity rule.” Brinkman v. City of Indianapolis 231 NE2d 169 (1967); Hargrove v. Town of Cocoa Beach, 96 S2d 130 (1957).
I would adhere to a rule that requires a school principal to answer for his possible negligence. Of course, to impose liability would require a showing of the principal’s negligence as proximate cause of the injury. *33457 AmJur2d 107, Municipal, Etc., Tort Liability, § 95. See generally 32 ALR2d 1163.1 note, too, that our legislature has authorized school boards to purchase liability insurance. Code Ann. § 32-850. I believe this insurance coverage should be utilized, and that this legislative provision should be deemed a waiver of immunity up to the limits of the insurance coverage.
In short, if a principal is completely immune from liability, then no one is ultimately responsible for any breach of duty owed to our state’s school children. When one of them is injured, there can be no suit despite the harm done or the egregious character of the wrong. Few acts, if any, will fall outside the "discretionary test” as applied by the court today. Therefore, I must respectfully dissent.