2020 Georgia Code
Title 36 - Local Government
Chapter 1 - General Provisions
§ 36-1-4. When County Liable to Be Sued

A county is not liable to suit for any cause of action unless made so by statute.

(Civil Code 1895, § 341; Civil Code 1910, § 384; Code 1933, § 23-1502.)

- For article, "Quasi-Municipal Tort Liability in Georgia," see 6 Mercer L. Rev. 287 (1955). For article, "Actions for Wrongful Death in Georgia: Parts Three and Four," see 21 Ga. B. J. 339 (1959). For article discussing necessity of liability insurance for Georgia counties and municipalities, and constitutional authority of the units to provide such insurance, see 25 Ga. B. J. 35 (1962). For article surveying tort liability insurance in Georgia local government law, see 24 Mercer L. Rev. 651 (1973). For article on insurance and indemnity for Georgia local government officers under Georgia law, see 13 Ga. L. Rev. 747 (1979). For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B. J. 24 (1985). For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986). For article, "Georgia Local Government Tort Liability: The 'Crisis' Conundrum," see 2 Ga. St. U. L. Rev. 19 (1986). For article, "Georgia County Liability: Nuisance or Not?," see 43 Mercer L. Rev. 1 (1991). For article, "Local Government Tort Liability: The Summer of '92," see 9 Ga. St. U. L. Rev. 405 (1993). For note discussing governmental immunity from tort liability in Georgia, see 5 Ga. St. B. J. 494 (1969). For note analyzing sovereign immunity in this state and proposing implementation of a waiver scheme and creation of a court of claims pursuant to Ga. Const. 1976, Art. VI, Sec. V, Para. I, see 27 Emory L.J. 717 (1978).

ANALYSIS

• General Consideration
• Violations of Constitutional Rights
• Taking of or Damage to Private Property
• Contracts
• Torts
• Pleading

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 543 and former Code 1933, § 95-1001, are included in the annotations for this Code section.

- This section does not violate the state and federal Constitutions. Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445 (1975).

This section does not violate U.S. Const., amend. 14 or Ga. Const. 1945, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I). Williams v. Georgia Power Co., 233 Ga. 517, 212 S.E.2d 348 (1975).

- This section is a codification of the principal rule in Hammond v. County of Richmond, 72 Ga. 188 (1883), and Smith v. Wilkes & McDuffie Counties, 79 Ga. 125, 4 S.E. 20 (1887). Lynch v. Harris County, 188 Ga. 651, 4 S.E.2d 573 (1939).

- Supreme Court of this state has so often affirmed and acknowledged that the doctrine of sovereign immunity prevents a suit by a citizen against the state, or a political subdivision thereof, until it is hardly necessary to again formally assert this rule. Haber v. Fulton County, 124 Ga. App. 789, 186 S.E.2d 152 (1971), overruled on other grounds, Cox v. Cox ex rel. State Dep't of Human Resources, 255 Ga. 6, 334 S.E.2d 683 (1985).

- Doctrine of sovereign immunity has been recognized in this state since the adoption of the common law. Hendon v. DeKalb County, 203 Ga. App. 750, 417 S.E.2d 705, cert. denied, 203 Ga. App. 906, 417 S.E.2d 705 (1992).

- In a suit by a city against a county, seeking a portion of tax revenue raised by the county from alcoholic beverage sales, there was a threshold question of whether sovereign immunity applied in suits between political subdivisions of the same sovereign (such as the city and the county), which the trial court had not addressed; therefore, remand was required. Clayton County v. City of College Park, 301 Ga. 653, 803 S.E.2d 63 (2017).

In a case involving taxation of alcoholic beverages, the city's claims against the county were not barred by sovereign immunity since the city and county were merely exercising their own respective home rule powers by collecting tax revenues for their own purposes, and neither was acting on behalf of the State of Georgia; thus, there was no sovereignty to be maintained. City of College Park v. Clayton County, 306 Ga. 301, 830 S.E.2d 179 (2019).

- Unlike the immunity of the state which had been judicially created, the immunity of a county from suit is found in statutory law. Nelson v. Spalding County, 249 Ga. 334, 290 S.E.2d 915 (1982).

Even if Ga. Const. 1976, Art. VI, Sec. V, Para. I (see now Ga. Const. 1983, Art. I, Sec. II, Para. IX) were not meant to reserve immunity for counties in all cases, such immunity has the additional support of O.C.G.A. § 36-1-4. Nelson v. Spalding County, 249 Ga. 334, 290 S.E.2d 915 (1982).

- Sovereign immunity enjoyed by a county extends to discretionary as well as ministerial functions and, indeed, even to personal injury claims based on nuisance. Early County v. Fincher, 184 Ga. App. 47, 360 S.E.2d 602, cert. denied, 184 Ga. App. 909, 360 S.E.2d 602 (1987).

Sovereign immunity barred the plaintiff's claims against the defendant county because, under O.C.G.A. § 36-1-4, a county was not liable to suit for any cause of action unless made so by statute, and the county's sovereign immunity had not been waived with respect to the claims asserted by the plaintiff. McRae v. Perry, F. Supp. 2d (S.D. Ga. Nov. 28, 2012).

O.C.G.A. § 36-1-4 includes actions brought under a theory of negligence. Schulze v. DeKalb County, 230 Ga. App. 305, 496 S.E.2d 273 (1998).

- Language could not be broader or more comprehensive, or more free from doubt, than the words of this section. When it says the county shall not be liable for any cause of action, the statute expressly negatives the idea of exceptions other than provided therein, to wit, "unless made so by statute." Wood v. Floyd County, 161 Ga. 743, 131 S.E. 882 (1926).

- Whenever a county is by statute made liable for a given demand, an action against the county will lie therefor, though the statute does not in express terms authorize or provide for the bringing of such an action. Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929, 137 S.E. 247 (1927).

- Neither negligent performance of duties which the county authorities are compelled to perform, nor the negligent discharge of duties voluntarily assumed, except in cases provided by statute, gives a cause of action against the county. Millwood v. DeKalb County, 106 Ga. 743, 32 S.E. 577 (1899); Mitchell County v. Dixon, 20 Ga. App. 21, 92 S.E. 405 (1917).

- This section has the effect of exempting a county from liability to suit in the absence of a statute authorizing a suit for the breach of duty alleged, though that duty is one imposed on the county by statute. Wolf v. Upson County, 44 F.2d 925 (5th Cir. 1930).

County is exempt from suit except when the suit is specifically authorized by the Constitution and statutes. Bibb County v. Green, 42 Ga. App. 552, 156 S.E. 745 (1931).

County is not liable to suit for any cause of action unless made so by statute. Hendon v. DeKalb County, 203 Ga. App. 750, 417 S.E.2d 705, cert. denied, 203 Ga. App. 906, 417 S.E.2d 705 (1992).

- Trial court correctly determined that the state law claims made against a county and against a sheriff and medical contract compliance administrator in their official capacities were barred because, although O.C.G.A. § 42-5-2(a) imposed upon the county the duty and cost of medical care for inmates in the county's custody, the statute did not waive sovereign immunity of the county or the county's agents or employees. Graham v. Cobb County, 316 Ga. App. 738, 730 S.E.2d 439 (2012).

Counties, as corporations, are mere subdivisions of state, and the state is never suable except by express enactment, and this is also true of subdivisions of the state. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285 (1935).

County, being a political division of the state, is not liable to be sued unless special authority can be shown; it is incumbent upon the person filing the suit to bring a case within the legislative authority upon which the person relies to bring the suit. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285 (1935).

County in virtue of being a subdivision of the sovereign state "is not liable to suit for any cause of action unless made so by statute." For similar reason the State Highway Board (now State Transportation Board) is not so liable unless made so by law. Taylor v. Richmond County, 185 Ga. 610, 196 S.E. 37, answer conformed to, 57 Ga. App. 586, 196 S.E. 303 (1938).

Doctrine of sovereign immunity also applies to political subdivisions of the state, including counties. Hendon v. DeKalb County, 203 Ga. App. 750, 417 S.E.2d 705, cert. denied, 203 Ga. App. 906, 417 S.E.2d 705 (1992).

- While it was true that the liability of cities on the cities' contracts was determined just as it was at common law and under former Code 1933, § 69-301 (see now O.C.G.A. § 36-33-1) and their liability as to torts conforms to the rule at common law, the rule of liability as to counties was different, in that former Code 1933, § 23-1502 (see now O.C.G.A. § 36-1-4) relaxed the rule which forbid altogether any suit against a county for any cause of action so as to authorize suits against the city when so authorized by express constitutional or statutory authority. Purser v. Dodge County, 188 Ga. 250, 3 S.E.2d 574, answer conformed to, 60 Ga. App. 316, 3 S.E.2d 744 (1939).

- Whenever a county is by statute made liable for a given demand, an action against the county will lie therefor, though the statute does not in express terms authorize or provide for the bringing of such an action. Taylor v. Jenkins County, 116 Ga. App. 718, 158 S.E.2d 322 (1967).

- Immunity provided to a county by O.C.G.A. § 36-1-4 is waived, pursuant to Ga. Const., 1983, Art. I, Sec. VI, Para. IX, when the county purchases a liability insurance policy. Early County v. Fincher, 184 Ga. App. 47, 360 S.E.2d 602, cert. denied, 184 Ga. App. 909, 360 S.E.2d 602 (1987).

- Since damages recoverable in an action by a property owner whose property is harmed by a county for public purposes is a substitute for damages recoverable in a condemnation action, there is no constitutional or statutory authority for the recovery of punitive damages against a county. Fulton County v. Baranan, 240 Ga. 837, 242 S.E.2d 617 (1978).

Without express authority by statute, county is not subject to garnishment. Dotterer v. Bowe, 84 Ga. 769, 11 S.E. 896 (1890).

- When public officers, in discharging duties imposed upon the officers by law, undertake other duties not imposed by law, although intending it to be a benefit to the public, the latter, as represented by county governments, cannot be made responsible for torts or ultra vires contracts. Wood v. Floyd County, 161 Ga. 743, 131 S.E. 882 (1926).

- Under sovereign immunity principles, a public officer or employee, acting within the scope of their authority and engaged in discretionary as opposed to ministerial functions, is entitled to immunity from suit provided the acts complained of are done within the scope of the officer's authority and without wilfulness, fraud, malice, or corruption. Hendon v. DeKalb County, 203 Ga. App. 750, 417 S.E.2d 705, cert. denied, 203 Ga. App. 906, 417 S.E.2d 705 (1992).

- County is a public corporation and acts through the county's officers and agents. In matters pertaining to education, the county acts through the county's board of education. When the board of education acts upon matters lawfully within the board's jurisdiction, the board is the county acting through the board's corporate authority, and a county is not liable to suit for any cause of action unless made so by statute. But when the board of education, through the board's members, acts beyond the scope of the board's lawful jurisdiction and commits an actionable wrong, the act so committed is not "county action," and in such a case a suit may be maintained in the courts of this state against the wrongdoers. Duffee v. Jones, 208 Ga. 639, 68 S.E.2d 699 (1952).

- A 1983 amendment to the charter of the consolidated local government of Columbus which provided that the tort liability of the consolidated government would be the tort liability applicable to counties was valid and constitutional. Bowen v. City of Columbus, 256 Ga. 462, 349 S.E.2d 740 (1986).

County is liable to suit in action to recover land owned by the plaintiffs and which has been taken possession of by the county, when the plaintiff refuses on demand to deliver possession. Lynch v. Harris County, 188 Ga. 651, 4 S.E.2d 573 (1939).

- O.C.G.A. § 36-1-4 was not an impediment to an unpaid subcontractor's "equitable lien" claim against a county as to any funds which were being held by the county but which belonged to the general contractor. DeKalb County v. J & A Pipeline Co., 263 Ga. 645, 437 S.E.2d 327 (1993).

- If a county illegally obtains the money of another and refuses, on demand, to make restitution, an action for money had and received lies against the county for money so appropriated and used. Owens v. Floyd County, 94 Ga. App. 532, 95 S.E.2d 389 (1956).

Suit for money had and received, when the suit is against equity and good conscience for the one receiving it to keep it (and this includes a county), is not based on a contract nor a statute. Owens v. Floyd County, 94 Ga. App. 532, 95 S.E.2d 389 (1956).

- Before a writ of mandamus will issue to compel the county commissioners to issue a warrant upon the treasurer to pay a debt, it must appear that the debt comes within the classes provided in the Constitution for which a tax may be levied. Daniel v. Hutchinson, 169 Ga. 492, 150 S.E. 681 (1929).

When landowners were compensated by a county in condemnation proceedings, the landowners could not seek additional recovery based upon nuisance or trespass, nor could the landowners bring suit against the county for negligent misrepresentation or fraudulent inducement in the original condemnation actions. Butler v. Gwinnett County, 223 Ga. App. 703, 479 S.E.2d 11 (1996).

- Pursuant to O.C.G.A. § 36-1-4 and Ga. Const. 1983, Art. I, Sec. II, Para. IX (e), a county was immune from a lender's suit because the lender pointed to no statute creating a waiver of immunity or any factual scenario warranting a waiver with respect to the lender's claim that the county failed to give the lender notice of the availability of excess funds following a tax sale as required by O.C.G.A. § 48-4-5. Bartow County v. S. Dev., III, L.P., 325 Ga. App. 879, 756 S.E.2d 11 (2014).

Cited in City of Dawson v. Terrell County, 33 Ga. App. 676, 145 S.E. 465 (1928); Decatur County v. Townsend, 46 Ga. App. 103, 166 S.E. 774 (1932); Morris v. Floyd County, 46 Ga. App. 150, 167 S.E. 127 (1932); Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934); Wasden v. Jefferson County, 56 Ga. App. 505, 193 S.E. 116 (1937); Ayers v. Hartford Accident & Indem. Co., 106 F.2d 958 (5th Cir. 1939); State Hwy. Bd. v. Hall, 193 Ga. 717, 20 S.E.2d 21 (1942); Ayers v. Franklin County, 73 Ga. App. 207, 36 S.E.2d 110 (1945); Johnson County v. Hicks, 73 Ga. App. 238, 36 S.E.2d 116 (1945); State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947); Arnold v. Walton, 205 Ga. 606, 54 S.E.2d 424 (1949); Brantley v. Baldwin County, 81 Ga. App. 485, 59 S.E.2d 288 (1950); Almon v. Terrell County, 89 Ga. App. 403, 79 S.E.2d 430 (1953); State Hwy. Dep't v. McClain, 216 Ga. 1, 114 S.E.2d 125 (1960); Richmond County v. Williams, 109 Ga. App. 670, 137 S.E.2d 343 (1964); Lowndes County v. Dasher, 229 Ga. 289, 191 S.E.2d 82 (1972); Hancock County v. Williams, 230 Ga. 723, 198 S.E.2d 659 (1973); Lee v. Petty, 133 Ga. App. 201, 210 S.E.2d 383 (1974); Richmond County v. Jackson, 234 Ga. 717, 218 S.E.2d 11 (1975); Wayne County Bd. of Comm'rs v. Warren, 236 Ga. 150, 223 S.E.2d 133 (1976); Central of Ga. R.R. v. Schnadig Corp., 139 Ga. App. 193, 228 S.E.2d 165 (1976); Lasky v. Fulton County, 145 Ga. App. 120, 243 S.E.2d 330 (1978); DeKalb County v. Gibson, 146 Ga. App. 573, 246 S.E.2d 692 (1978); Duffield v. DeKalb County, 242 Ga. 432, 249 S.E.2d 235 (1978); Reid v. Gwinnett County, 242 Ga. 88, 249 S.E.2d 559 (1978); DeKalb County v. Scruggs, 147 Ga. App. 711, 250 S.E.2d 159 (1978); Overlin v. Boyd, 598 F.2d 423 (5th Cir. 1979); Miree v. United States, 490 F. Supp. 768 (N.D. Ga. 1980); Grant v. Barge, 160 Ga. App. 488, 287 S.E.2d 393 (1981); Baranan v. Fulton County, 250 Ga. 531, 299 S.E.2d 722 (1983); James v. Richmond County Health Dep't, 168 Ga. App. 416, 309 S.E.2d 411 (1983); Bliss v. Cobb County, 599 F. Supp. 233 (N.D. Ga. 1984); Shuman v. Dyess, 175 Ga. App. 213, 333 S.E.2d 379 (1985); Dinsmore v. Cherokee County, 177 Ga. App. 93, 338 S.E.2d 523 (1985); Ostuni Bros. v. Fulton County Dep't of Pub. Works, 184 Ga. App. 406, 361 S.E.2d 668 (1987); Marion v. DeKalb County, 821 F. Supp. 685 (N.D. Ga. 1993); Atlanta Mechanical, Inc. v. DeKalb County, 209 Ga. App. 307, 434 S.E.2d 494 (1993); DeKalb County v. J & A Pipeline Co., 263 Ga. 645, 437 S.E.2d 327 (1993); ABE Eng'g, Inc. v. Fulton County Bd. of Educ., 214 Ga. App. 514, 448 S.E.2d 221 (1994); Thompson v. Chapel, 229 Ga. App. 537, 494 S.E.2d 216 (1997).

Violation by county of constitutional right of citizen raises cause of action in favor of the citizen against the county, unless some means of redress other than suit has been afforded by the legislature. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285 (1935); Waters v. DeKalb County, 208 Ga. 741, 69 S.E.2d 274 (1952); Baranan v. Fulton County, 232 Ga. 852, 209 S.E.2d 188 (1974).

Arrestee's 42 U.S.C. § 1983 suit against a county, alleging that the arrestee was raped by a deputy at the county jail, failed as a matter of law because, under O.C.G.A. § 36-1-4, a county was not liable for any cause of action unless provided by statute, and the county had not waived the county's sovereign immunity. Boyd v. Nichols, 616 F. Supp. 2d 1331 (M.D. Ga. 2009).

Taking of or Damage to Private Property

Right arises from Constitution.

- Right to sue a county for damages for the taking or damaging of private property under the circumstances alleged is not dependent on any statute, but arises out of the constitutional provision which applies to counties as well as to individuals. Brooks County v. Elwell, 63 Ga. App. 308, 11 S.E.2d 82 (1940).

Declaration of the Constitution that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid gives rise to an action for damages against a county for injuries to private property caused by public improvements. Baranan v. Fulton County, 232 Ga. 852, 209 S.E.2d 188 (1974).

- Lawsuits involving taking or damaging of property under Ga. Const. 1976, Art. I, Sec. III, Para. I (see now Ga. Const. 1983, Art. I. Sec. III, Para. II, and Art. III, Sec. VI, Para. II) may be maintained against counties. Ingram v. Baldwin County, 149 Ga. App. 422, 254 S.E.2d 429 (1979).

- As a general rule, a county is not liable to suit unless there is a law which so declares. Yet the appropriate law can be found in the Constitution. When private property is taken by county authorities for the benefit of the public, a right of action arises in favor of the owner of the property. Elbert County v. Brown, 16 Ga. App. 834, 86 S.E. 651 (1915); Bates v. Madison County, 32 Ga. App. 370, 123 S.E. 158 (1924).

County can be held liable to the extent of an injury to property, not on the theory that the county is liable, as are other tort-feasors, for the negligent acts and conduct of its agents while acting within the scope of their authority, but for the reason that it cannot, either with or without the guise of contractual authority, damage the property of another for the public use without just and adequate compensation being paid. Felton Farm Co. v. Macon County, 49 Ga. App. 239, 175 S.E. 29 (1934).

Construing together Ga. Const. 1877, Art. I, Sec. III, Para. I (see now Ga. Const. 1983, Art. I, Sec. III, Para. II, and Art. III, Sec. VI, Para. II) and this section, a right of action is afforded against a county for damage to private property for public uses or taking private property for public uses. Consequently, a county is liable to suit at the instance of an individual for damages to the individual's property done by the county for a public purpose. Taylor v. Richmond County, 185 Ga. 610, 196 S.E. 37, answer conformed to, 57 Ga. App. 586, 196 S.E. 303 (1938) (decided under former Code 1933, § 95-1001).

- If private property is taken or damaged by a county for public use, even by the prudent and proper exercise of a power conferred by statute, the owner is entitled to just compensation. Felton Farm Co. v. Macon County, 49 Ga. App. 239, 175 S.E. 29 (1934).

When a county causes a nuisance to exist which amounts to a taking of property of one of its citizens for public purposes, the county is liable. Miree v. United States, 242 Ga. 126, 249 S.E.2d 573 (1978).

- Sovereign immunity does not prohibit the recovery of prejudgment interest in an action for a refund of wrongfully collected taxes. Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 360 S.E.2d 425, cert. denied, 183 Ga. App. 906, 360 S.E.2d 425 (1988).

- Counties are subject to suit for damages, as well as injunctive relief, in the maintenance of an activity so as to constitute a continuing nuisance by diverting surface water onto a property owner's property, and which is violative of a citizen's constitutional right that private property shall not be taken or damaged for public purposes without just and adequate compensation being paid. Anderson v. Columbus, 152 Ga. App. 772, 264 S.E.2d 251 (1979).

- While the power to construct sewer and drainage systems is a governmental function, the county cannot create and maintain such system as a nuisance which damages private property without subjecting itself to civil liability. Ingram v. Baldwin County, 149 Ga. App. 422, 254 S.E.2d 429 (1979).

Single instance of backup of county sewage system into private home would not be sufficient to create nuisance for which county liability would attach. Ingram v. Baldwin County, 149 Ga. App. 422, 254 S.E.2d 429 (1979).

As long as a county operates and maintains a public works project so as not to result in the creation of a nuisance, O.C.G.A. § 36-1-4 renders the county immune from suit for damage resulting from the operation and maintenance of the project. Desprint Servs., Inc. v. DeKalb County, 188 Ga. App. 218, 372 S.E.2d 488 (1988).

As a matter of law, the post-construction non-nuisance damage done to private property by a single malfunction in the operation of a public works project is not damage which has been done for a "public purpose" within the meaning of Ga. Const. 1976, Art. I, Sec. III, Para. I (see now Ga. Const. 1983, Art. I, Sec. III, Para. II, and Art. III, Sec. VI, Para. II). Desprint Servs., Inc. v. DeKalb County, 188 Ga. App. 218, 372 S.E.2d 488 (1988).

Private property which was flooded as the result of a burst water main, which had been equipped with a new "butterfly" valve in connection with a road construction project undertaken a few weeks earlier by a county was not damaged for the "public purpose" of actually constructing any public works project within the meaning of Ga. Const. 1983, Art. I, Sec. III, Para. I. Desprint Servs., Inc. v. DeKalb County, 188 Ga. App. 218, 372 S.E.2d 488 (1988).

- Right of action exists against county for damaging private property for public uses in constructing the approaches to county bridge. Smith v. Floyd County, 85 Ga. 420, 11 S.E. 850 (1890).

- When nuisance created by county does not amount to taking for public purposes county is not liable. Miree v. United States, 242 Ga. 126, 249 S.E.2d 573 (1978).

- County is not liable to a father of a minor child injured by the negligence of one of the servants of the county in operating a truck, for loss of the services of the child, on the theory that the deprivation of the father of the services is the taking or damaging of property for public use without just compensation, nor would it make any difference that the driver of the truck was employed in repairing a public road. Born v. Fulton County, 51 Ga. App. 537, 181 S.E. 106 (1935).

- Policy of the law is explicit that all claims against a county for taking or damaging private property for public uses must be filed within 12 months, and suit thereon for the depreciation in the market value must be instituted within the period of limitations stipulated by the law, and it is not the policy of the law to permit the bringing of suits against counties from time to time for damages which might result by reason of negligently constructed public improvements constituting a nuisance. Bibb County v. Green, 42 Ga. App. 552, 156 S.E. 745 (1931).

- Right of action exists against a county for damaging private property for public uses; the liability of counties for damages to property in all cases being the actual depreciation in the market value of the premises injured. Felton Farm Co. v. Macon County, 49 Ga. App. 239, 175 S.E. 29 (1934).

- In an action in which the plaintiff landowners filed suit against the defendant county alleging trespass, negligence, negligence per se, and violation of the landowners' riparian rights, in connection with the county's recreational development of the county's adjoining property, the county was entitled to sovereign immunity because there was no showing by the landowners that the county waived sovereign immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX and O.C.G.A. § 36-1-4. Carney v. Gordon County, F. Supp. 2d (N.D. Ga. Sept. 12, 2006).

Contracts

Liability for breach of contract.

- Whenever counties are authorized to contract, and counties make valid contracts in pursuance of such power, the counties are liable to suits for breaches thereof, although there is no statute expressly authorizing the bringing of such an action for such purpose. Washington County v. Sheppard, 46 Ga. App. 240, 167 S.E. 339 (1933).

Exception to general rules exists when a county breaches a contract the county was authorized by law to undertake. Deason v. DeKalb County, 222 Ga. 63, 148 S.E.2d 414 (1966).

County can always be sued upon any liability against the county created by statute, or for breach of any valid contract which the county is authorized by law to make. Deason v. DeKalb County, 222 Ga. 63, 148 S.E.2d 414 (1966).

Whenever a county is made liable by statute for a demand, or is authorized by statute to contract, and in pursuance of such power does contract, then an action will lie against the county to enforce such liability, or to enforce any rights growing out of such contract, although there is no statute expressly authorizing the bringing of an action for such purpose. Deason v. DeKalb County, 222 Ga. 63, 148 S.E.2d 414 (1966).

If a statute authorizes a county to contract, the statute also implicitly creates a cause of action for breach. Miree v. United States, 526 F.2d 679 (5th Cir.), different result reached on rehearing, 538 F.2d 643 (5th Cir. 1976), judgment en banc vacated, 433 U.S. 25, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977).

Supreme Court has long construed former Code 1933, §§ 23-1501 and 23-1502 (see now O.C.G.A. §§ 36-1-3 and36-1-4) as permitting suits against counties based on contracts made pursuant to legislative authorization. PMS Constr. Co. v. DeKalb County, 243 Ga. 870, 257 S.E.2d 285 (1979).

- Employee who has obtained permanent employment status under county merit system and who is wrongfully discharged may maintain suit against the county for the employee's salary even though such suit is not expressly authorized by statute. Deason v. DeKalb County, 222 Ga. 63, 148 S.E.2d 414 (1966).

- When a county obtains possession of land, with crops growing thereon belonging to another, under a void contract, the county is nevertheless liable to the owner of the land for the land's rental value for the time during which the land was actually occupied and used by the county, and for the value of the crops thereon. Bailey v. Miller County, 24 Ga. App. 746, 102 S.E. 178 (1920) (decided under former Code 1910, § 543).

Torts

1. Liability Generally

- Rule of general nonliability for torts is true whether the alleged cause of action arises from the negligent performance of duties which the county authorities are compelled to perform, or a negligent discharge of duties voluntarily assumed in the exercise of a discretion vested in the authorities by law. McLeod v. Pulaski County, 50 Ga. App. 356, 178 S.E. 198 (1935).

County, when exercising governmental functions and acting as an agency of the state is not liable, in the absence of statutes imposing liability, for the county's failure to perform a duty or for the county's negligent performance of the duty, not even when the duty is imposed by statute; and there is no distinction in the application of this rule between the neglect to perform an act which ought to have been performed, and the performance of the duty in a negligent manner. Miree v. United States, 242 Ga. 126, 249 S.E.2d 573 (1978).

- In an action arising out of an arrest, despite the way the arrestee was treated, the trial court properly dismissed a complaint as asserted against a county, and granted summary judgment on the same complaint as asserted against a city, on sovereign immunity grounds since the arrestee failed to show that the immunity had been waived. Scott v. City of Valdosta, 280 Ga. App. 481, 634 S.E.2d 472 (2006).

No law authorizes suit against county for torts of conversion and defamation and since a county is immune from suit for torts of conversion and defamation and the defendants in their official capacities can be sued only as representatives of the county, thereby exposing the county to liability, plaintiff's complaint alleging conversion and defamation must be dismissed as to the county and the defendants in their official capacities. Military Circle Pet Ctr. No. 94, Inc. v. Cobb County, 665 F. Supp. 909 (N.D. Ga. 1987), aff'd in part and rev'd in part, 877 F.2d 973 (11th Cir. 1989).

County is immune from suit under a theory of negligence, even when the negligence arises from the violation by the county of specific contractual and statutorily imposed duties. Miree v. U.S., 242 Ga. 126, 249 S.E.2d 573 (1978).

Legislature has not provided for suits in negligence against a county, nor is there any other authority for such. Johnson v. Chatham County, 167 Ga. App. 283, 306 S.E.2d 310 (1983).

County is immune from suit under theory of nuisance, even if the nuisance is created in violation of specific contractual and statutorily imposed duties. Miree v. United States, 242 Ga. 126, 249 S.E.2d 573 (1978).

Waiver of sovereign immunity for claims alleging the negligent performance of ministerial duties only applies to cities and does not apply to counties. O.C.G.A. § 36-33-1(b) provides that for neglect to perform or improper or unskillful performance of their ministerial duties, municipal corporations shall be liable. O.C.G.A. § 36-1-4 sets out the sovereign immunity of counties and contains no such waiver for ministerial duties. Klingensmith v. Long County, 352 Ga. App. 21, 833 S.E.2d 608 (2019).

- Unless a complainant is a party to such contract, or a named beneficiary of such contract, the fact that a county may have been guilty of a nuisance in not carrying out or performing the contract between the county government and a third party affords no right of action to the complainant. Miree v. United States, 242 Ga. 126, 249 S.E.2d 573 (1978).

Plaintiff's state law tort claims against a police chief, two police officers, and a county were barred by the doctrine of sovereign immunity, Ga. Const. 1983, Art. I, Sec. II, Para. IX(e), since the individual defendants were sued in the defendants' official capacities, and there was no statutory waiver of immunity as required by O.C.G.A. § 36-1-4. Payne v. Dekalb County, 414 F. Supp. 2d 1158 (N.D. Ga. 2004).

Because a county enjoyed sovereign immunity from a pedestrian's negligence and nuisance claims asserted in a personal injury action against the county for the county's alleged failure to maintain a water meter cover, the trial court properly dismissed the claims; furthermore, O.C.G.A. § 36-1-4 provided that a county was not liable for any cause of action unless made so by statute. Rutherford v. DeKalb County, 287 Ga. App. 366, 651 S.E.2d 771 (2007).

Unified city/ county government was not a municipality for purposes of the waiver of sovereign immunity by operation of O.C.G.A. § 36-33-1 because the charter creating the unified government expressly provided that its tort and nuisance liability would follow the law and rules of tort liability applicable to counties in Georgia. Athens-Clarke County v. Torres, 246 Ga. App. 215, 540 S.E.2d 225 (2000).

- Plaintiff in a federal civil rights action had an adequate state law tort remedy, consequently plaintiff was not deprived of plaintiff's rights without due process of law when a water meter leaked, the county did not repair the meter, water flowed onto a nearby road and froze, and plaintiff's car skidded on the ice and collided with another car, causing extensive injuries, notwithstanding the fact that the county and the county's officers were immune from suit for negligence. Rittenhouse v. DeKalb County, 764 F.2d 1451 (11th Cir. 1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

- County's exposure of liability to every member of the flying public, their associates, the adjoining property owners, and any other person who may happen to be in the area, is too broad to permit a contention that every injured party is an intended beneficiary under a public contract calling for the county to operate and maintain an airport, especially since there is no intention manifested in the contract that the county compensate any member of the public for injurious consequences. Miree v. United States, 242 Ga. 126, 249 S.E.2d 573 (1978).

County is immune from action brought by pilot's widow for wrongful death of such pilot when the pilot's plane crashed because of ingestion of birds into the plane's engines. Sellfors v. DeKalb County, 157 Ga. App. 731, 278 S.E.2d 489 (1981).

- County is not responsible in damages for the tort of a guard in unlawfully beating a convict in the chain gang, or for the negligence of the other guards in not protecting the convict from the unlawful beating. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285 (1935).

- County is not liable to suit for any cause of action unless made so by statute, and thus escapes liability in a wrongful death action involving refuse containers the county owned. Greenway v. DeKalb County, 151 Ga. App. 556, 260 S.E.2d 552 (1979).

- General Assembly has not made counties liable to suit on account of injuries sustained by persons falling on courthouse property. Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445 (1975).

- This section includes ex delicto causes of action such as "causes of action arising out of the negligent performance of authorized but not compulsory, ministerial, or proprietary functions, as distinguished from governmental functions" whether the hospital be operated "primarily for charitable purposes," or operated "primarily for profit." Ware County v. Cason, 189 Ga. 78, 5 S.E.2d 339 (1939).

- In a worker's suit alleging negligence on the part of a county with regard to the county allegedly failing to properly instruct and supervise the worker in the use of a portable tar kettle machine, the trial court erred by granting the county's motion for a judgment on the pleadings based on sovereign immunity as the worker sufficiently alleged that the machine was a vehicle as contemplated by O.C.G.A. § 33-24-51, which established a waiver of sovereign immunity if the county had purchased liability insurance to cover damages and injuries arising from the use of motor vehicles under the county's management. Hewell v. Walton County, 292 Ga. App. 510, 664 S.E.2d 875 (2008).

- Procurement of insurance under Ga. L. 1960, p. 289, § 1 (see now O.C.G.A. § 33-24-51) does not constitute a waiver of sovereign immunity in regard to damages caused by the county's negligence not connected with motor vehicles. Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445 (1975).

Compensation of some other person or persons for comparable injuries on the same county property, or the purchase of insurance for such purposes, does not create a cause of action in a plaintiff suing a city in a tort action. The defendant city would not be estopped by such unauthorized waiver of the sovereign immunity of the county. Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445 (1975).

County does not waive the county's immunity in the purchase of a contract of liability insurance, even though the policy of insurance may include a clause allegedly waiving immunity. Miree v. United States, 242 Ga. 126, 249 S.E.2d 573 (1978).

Sovereign immunity barred the claimants' personal injury and nuisance claims against the members of a county board of commissioners in the commissioners' official capacities because the claimants did not show that the county waived the county's sovereign immunity with regard to the county's operation of a mosquito control helicopter which sprayed one of the claimants with chemicals. Further, the county did not waive the county's sovereign immunity under O.C.G.A. § 33-24-51 by purchasing a liability insurance policy covering the helicopter because the helicopter was not a "motor vehicle" as that term was understood in the statute. Bd. of Comm'rs v. Johnson, 311 Ga. App. 867, 717 S.E.2d 272 (2011).

- In determining if a county waived the county's sovereign immunity through the voluntary purchase of liability insurance under the second sentence of O.C.G.A. § 33-24-51(b), a trial court erred in considering the definition of "motor vehicle" provided in O.C.G.A. § 36-92-1; rather, "any motor vehicle" was defined as a vehicle that was capable of being driven on the public roads that was covered by a liability insurance policy purchased by the county. Glass v. Gates, 311 Ga. App. 563, 716 S.E.2d 611 (2011), aff'd, 291 Ga. 350, 729 S.E.2d 361 (2012).

2. Roads and Bridges

No liability for defect in highway.

- There is no constitutional or statutory provision which can be taken to render a county liable for a tort on account of personal injuries arising from a defect in a highway constructed or repaired by the county. This is true irrespective of whether the construction or repair of the highway is done in the performance of the county's own governmental functions in maintaining the county's system of highways, or whether the construction or repair is done under a contract made by the county with the State Highway Department (now Department of Transportation) solely for pecuniary gain. Purser v. Dodge County, 188 Ga. 250, 3 S.E.2d 574, answer conformed to, 60 Ga. App. 316, 3 S.E.2d 744 (1939).

There being no liability provided by any statute against a county for negligence arising out of the county's maintenance or construction of a public road, a county, notwithstanding the county may in the construction of a public road be operating under a contract from which the county derives a pecuniary gain made with the highway department pursuant to law, is not liable for the county's negligence in obstructing the roadway by leaving a pile of rock or gravel in the road in preparation for the construction by the county of a bridge, and as a result of which a person traveling along the road in an automobile runs into the pile of rock and is injured. Purser v. Dodge County, 60 Ga. App. 316, 3 S.E.2d 744 (1939).

There is no constitutional or statutory provision which can be taken to render a county liable for a tort on account of personal injuries arising from a defect in a highway constructed or repaired by the county. Williams v. Georgia Power Co., 233 Ga. 517, 212 S.E.2d 348 (1975).

- This provision does not give a cause of action when a county by road work pollutes a stream and thereby plaintiff's cows are poisoned. Howard v. County of Bibb, 127 Ga. 291, 56 S.E. 418 (1907).

- County was under no duty to build bridge across creek which under normal circumstances was safe to ford and therefore not liable for death of car occupants who drowned when creek flooded over ford as car passed over the ford. Dollar v. Haralson County, 704 F.2d 1540 (11th Cir.), cert. denied, 464 U.S. 963, 104 S. Ct. 399, 78 L. Ed. 2d 341 (1983).

- While a county is not liable to suit unless made so by statute, it has been provided by statute that a county is primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities. Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946) (decided under former Code 1933, § 95-1001).

- When the statute provides for the liability of counties, a recovery may be had against the counties as when no sufficient bond is taken to keep bridges in repair. Hammond v. County of Richmond, 72 Ga. 188 (1883).

County is liable to suit by contractors for breach of a valid and binding contract for the building of a bridge over a river in such county, upon the assumption that the difference between the representations in the plans and specifications as to the facts and conditions under the bed of the river, and the actual facts and conditions thereof, amounted to a breach of the contract by the county. Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929, 137 S.E. 247 (1927).

Suit may be maintained against a county and a verdict and judgment obtained against the county for damages resulting from a defect in a bridge, although it may appear that jurisdiction over the highway on which the bridge was located had been assumed by the State Highway Department (now Department of Transportation) under the terms of the law, and that the State Highway Department and not the county was guilty of negligence in the maintenance and construction of the bridge or its approaches which caused the injury. Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946) (decided under former Code 1933, § 95-1001).

For a county to be liable for injuries resulting from defective bridge repairs there must have been a failure to take a bond from a contractor when such a bond was required, and the injury complained of must have occurred within the time which would have been covered by the contractor's bond, if such a bond had been given. Wolf v. Upson County, 44 F.2d 925 (5th Cir. 1930).

Petition must show liability by statute. Seymore v. Elbert County, 116 Ga. 371, 42 S.E. 727 (1902); Fulton County v. Gordon Water Co., 37 Ga. App. 290, 140 S.E. 45 (1927), cert. denied, 37 Ga. App. 833 (1928); Newberry v. Hall County, 52 Ga. App. 472, 183 S.E. 664 (1936); Anderson v. DeKalb County, 107 Ga. App. 328, 130 S.E.2d 140 (1963).

- Petition sufficiently shows the suit is brought under a particular statute when the facts alleged clearly show the plaintiff's right to recovery under the provisions of the statute. Deason v. DeKalb County, 222 Ga. 63, 148 S.E.2d 414 (1966).

- When a petition alleges the plaintiff was employed and obtained a permanent status under the law and the regulations promulgated by the county commissioners, then the county is subject to suit. Deason v. DeKalb County, 222 Ga. 63, 148 S.E.2d 414 (1966).

- Liability to suit may be shown by indicating that the claim arises as an incident in the performance of an undertaking by the county authorized by statute. Deason v. DeKalb County, 222 Ga. 63, 148 S.E.2d 414 (1966).

ANALYSIS

• General Consideration
• Liability of Boards of Education

Generally, counties have broader immunity from suits than municipalities. 1975 Op. Att'y Gen. No. 75-32.

- County's potential liability for acts of a probationer working on a community service project depends upon the existence of a statute authorizing a tort action against the county. 1975 Op. Att'y Gen. No. 75-32.

- Generally, a county will not be subject to liability for damages resulting from a motorist's collision with a garbage container placed by the county beside the county's road. 1974 Op. Att'y Gen. No. U74-66.

- Slash Pine Area Planning and Development Commission is not liable for damage to private individuals resulting from improper performance or nonperformance of duties of the Commission's officers, agents, or servants. 1967 Op. Att'y Gen. No. 67-255.

Liability of Boards of Education

No tort liability generally.

- Local school district is not liable in tort under the law of Georgia for injuries sustained by a pupil engaged in school athletic activities. 1957 Op. Att'y Gen. p. 100.

Neither a county board of education nor the board's members, by virtue of their membership, are liable for injuries incurred by a pupil riding on one of the board's school buses. 1965-66 Op. Att'y Gen. No. 65-84.

- When the board of education acts upon matters lawfully within the board's jurisdiction, it is the county acting through the county's corporate authority, and the county is not liable to suit for any cause of action unless made so by statute; but when the board of education, through the board's members, acts beyond the scope of the board's lawful jurisdiction and commits an actionable wrong, the act so committed is not "county action," and in such a case a suit may be maintained in the courts of this state against the wrongdoers. 1958-59 Op. Att'y Gen. p. 98.

County board of education, acting beyond the scope of the board's lawful jurisdiction in leasing school buildings to private citizens to be used as a recreational center, might thereby subject the board's members to individual liability to suit in case someone was hurt or an accident happened on this property. 1958-59 Op. Att'y Gen. p. 98.

- This shield from liability, which is generally referred to as the doctrine of "sovereign immunity" is applicable only if the act or conduct causing the loss is one which was taken by the board within the scope of the board's authority or official discretion; it does not protect a board member when it is such member's own personal and individual negligence which causes the injury rather than an action of the school board; another exception is the fact that while the doctrine protects the school board and the members of the board from liability when the injury results from ordinary negligence of the board, it would not apply when the action of the board amounts to malicious, willful, or wanton misconduct. 1965-66 Op. Att'y Gen. No. 65-84.

RESEARCH REFERENCES

Am. Jur. 2d.

- 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 735, 740.

- 20 C.J.S., Counties, §§ 410, 411.

- Liability of county or municipality for tortious injury in or about building which is used for both governmental and proprietary functions, 64 A.L.R. 1545.

Applicability to federal courts of state constitutional or statutory provisions regarding liability of county or other political subdivision to suit, 86 A.L.R. 1019.

Liability of county for torts in connection with activities which pertain, or are claimed to pertain, to private or proprietary functions, 16 A.L.R.2d 1079.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from design, construction, or failure to warn of narrow bridge, 2 A.L.R.4th 635.

Liability of governmental entity to builder or developer for negligent issuance of building permit subsequently suspended or revoked, 41 A.L.R.4th 99.

Right of insured, precluded from recovering against owner or operator of uninsured motor vehicle because of governmental immunity, to recover uninsured motorist benefits, 55 A.L.R.4th 806.

State and local government liability for injury or death of bicyclist due to defect or obstruction in public bicycle path, 68 A.L.R.4th 204.

Measure and elements of damages for injury to bridge, 31 A.L.R.5th 171.