Note: GSBA eLaw goes into much greater depth on the subject of liability and immunity. As always, GSBA recommends that boards and superintendents work with legal counsel to determine the best course of action in any legal or policy matter.
Attempts to sue the government are as old as government itself. The English common law, developed by appointees of the Crown, created a doctrine that made it illegal to sue the King, the doctrine known to this day as sovereign immunity. That doctrine was continued in the common law of this country and of Georgia. With the development and subsequent widespread availability of liability insurance, recent years have seen Georgia courts and the General Assembly modify the blanket application of the doctrine to allow claims where insurance existed, at least to the limits of the insurance available. However, in the 1990 general election, the Georgia voters amended the state constitution to make sovereign immunity available to state and local governmental entities without regard to insurance unless the General Assembly passed a specific law waiving the sovereign immunity. Other immunity doctrines have developed, primarily to protect governmental officials and employees in the performance of their duties. Over the last 50 years, litigation against school districts, board members and administrators has often taken place in federal court where constitutional claims, allegations of civil rights violations and complaints of violation of federal statutes can be brought, avoiding the state-created protection of sovereign immunity.
The following are points to consider regarding immunity:
- Each county in the state comprises a school district and it is the school district that is the corporate, legal entity governed by a board of education, much as a corporation is governed by a board of directors. The Georgia Supreme Court has held that a local board of education, the governing body of the school district, is not a legal entity capable of being sued under Georgia law.
- Sovereign immunity is a principle of law that protects a governmental entity against awards of damages in litigation. When applicable, it provides total protection against a judgment, regardless of the nature of the negligent or wrongful act that led to the loss. Georgia’s constitution extends sovereign immunity to the “state and all of its departments and agencies,” except to the extent that the immunity is specifically and expressly waived by an act of the General Assembly. Georgia’s appellate courts have held on numerous occasions that this constitutional protection includes county school districts. Independent school districts are also entitled to the full protection of sovereign immunity granted to county school districts. Where a school district is entitled to the protection of sovereign immunity, the court of appeals has held that to pay a claim “in settlement of a supposed tort liability of the board would be a gratuity which is forbidden.”
- In 1992, the General Assembly passed the Georgia Tort Claims Act that allows lawsuits for personal injuries to be filed against the state, but provides a cap for damages and a shortened statute of limitations. This Act specifically exempts and does not include local governmental entities, including school districts.
In the early 1970s, the General Assembly determined that “an urgent crisis confronts public education in Georgia.” This crisis was the proliferation of litigation against school districts and school officials. Based on this crisis, the General Assembly specifically authorized boards of education to use school funds to purchase liability insurance to cover the school district, members of the local board, the superintendent and employees of the board. This insurance may provide indemnification against damages for any type of litigation filed.
The following are just a few of the highlights regarding liability insurance:
- Georgia law specifically states that the statute authorizing the purchase of insurance is not intended and shall not be read to waive any immunity or privilege available to the school district or its employees.
- The Georgia General Assembly specifically authorizes school boards to purchase liability insurance to cover school buses and other vehicles owned by the board as a part of the mandated accident insurance to cover school children riding on the bus. More broadly, authority is granted to all local governmental entities to purchase fleet insurance and, to the extent that such insurance has been purchased and is available, Georgia law waives the school district’s sovereign immunity up to the limits of that insurance. Thus, bus accidents or other incidents involving vehicles owned by the school district where insurance is provided can result in litigation and damages against the school district. The Georgia Court of Appeals has read these authorizing statutes broadly to include a waiver of sovereign immunity where a student was injured while riding in an automobile being test driven by another student as part of an automobile repair course in a vocational department of the high school; in that case, there was an allegation that the teacher’s negligence had caused the injury. Even though the vehicle was not owned by the school district and was not being driven by a school district employee, the court held that if the fleet policy provided coverage, the claim fell within the immunity waiver of the statute. Boards of education will want to carefully examine insurance policies to determine the scope of coverage provided.
- By executing an intergovernmental contract among themselves, a group of boards is authorized by Georgia law to form an interlocal risk management agency, such as the GSBA Risk Management Fund. Such a fund is allowed to pool its liability risks, its property risks and its fleet risks or purchase insurance on a group basis to protect against some or all of these risks.
- School districts are required to pay workers’ compensation benefits to covered employees. Districts must make arrangements to meet their potential obligations through insurance by a commercial insurance company, through self-insurance or a group self-insurance plan like the GSBA Workers’ Compensation Fund. If a board fails to procure worker’s compensation insurance, it will be required to pay these benefits from local funds.
- Collectively, the GSBA Risk Management Fund and Workers’ Compensation Fund offer members property, liability, workers’ compensation coverages, loss control services, claims management and other programs specifically tailored to serve Georgia’s public schools.