2021 Georgia Code
Title 36 - Local Government
Chapter 33 - Liability of Municipal Corporations for Acts or Omissions
§ 36-33-1. Immunity From Liability for Damages; Waiver of Immunity by Purchase of Liability Insurance; Liability for Acts or Omissions Generally

1. Pursuant to Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia, the General Assembly, except as provided in this Code section and in Chapter 92 of this title, declares 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 for damages. A municipal corporation shall not waive its immunity by the purchase of liability insurance, except as provided in Code Section 33-24-51 or 36-92-2, or unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy. This subsection shall not be construed to affect any litigation pending on July 1, 1986.
2. 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 improper or unskillful performance of their ministerial duties, they shall be liable.

(Civil Code 1895, § 748; Civil Code 1910, § 897; Code 1933, § 69-301; Ga. L. 1986, p. 1312, § 1; Ga. L. 1987, p. 3, § 36; Ga. L. 2002, p. 579, § 2.)

- Liability of municipalities for defects in public roads, § 32-4-93.

Limited waiver of governmental immunity by purchase of motor vehicle liability insurance, § 33-24-51.

- For article, "The Tort Liability of Municipalities in Georgia," see 17 Ga. B. J. 456 (1955). For article, "Actions for Wrongful Death in Georgia: Parts Three and Four," see 21 Ga. B. J. 339 (1959). For article surveying tort liability insurance in Georgia local government law, see 24 Mercer L. Rev. 651 (1973). For article, "Personal Liability of State Officials Under State and Federal Law," see 9 Ga. L. Rev. 821 (1975). For article discussing Georgia's practice of exposing municipalities to tort liability through the use of nuisance law, see 12 Ga. St. B. J. 11 (1975). For article discussing municipal tort liability and the defense of extraterritorial operation, see 12 Ga. L. Rev. 1 (1977). For article discussing sovereign immunity and the State Court of Claims, see 14 Ga. St. B. J. 152 (1978). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article discussing origin and construction of municipal tort liability law in Georgia, see 14 Ga. L. Rev. 239 (1980). 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, "'Sue and Be Sued' in Georgia Local Government Law: A Vignette of Vicissitudes," see 41 Mercer L. Rev. 13 (1989). For annual survey on law of torts, see 43 Mercer L. Rev. 395 (1991). For article, "Local Government Tort Liability: The Summer of '92," see 9 Ga. St. U. L. Rev. 405 (1993). For article, "Georgia's Public Duty Doctrine: The Supreme Court Held Hostage," see 51 Mercer L. Rev. 73 (1999). For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004). For article, "Police Pursuits: A Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Law," see 57 Mercer L. Rev. 511 (2006). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For annual survey of administrative law, see 67 Mercer L. Rev. 1 (2015). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For annual survey on local government law, see 71 Mercer L. Rev. 189 (2019). For note discussing governmental immunity from tort liability in Georgia, see 5 Ga. St. B. J. 494 (1969). For note, "Adverse Possession of Municipal and County Property Held for Proprietary Purposes: The Unique Georgia Development," see 7 Ga. St. B. J. 482 (1971). For note analyzing sovereign immunity in this state and proposing implementation of a waiver scheme and creation of a court of claims, see 27 Emory L.J. 717 (1978). For note on the 2002 amendment of this Code section, see 19 Ga. St. U. L. Rev. 243 (2002). For comment on City of Atlanta v. Hurley, 83 Ga. App. 879, 65 S.E.2d 44 (1951), see 3 Mercer L. Rev. 218 (1951). For comment criticizing City of Atlanta v. Hurley, see 14 Ga. B. J. 80 (1951). For comment on Caroway v. City of Atlanta, 85 Ga. App. 792, 70 S.E.2d 126 (1952), see 15 Ga. B. J. 79 (1952). For comment on Knowles v. Housing Auth., 212 Ga. 729, 95 S.E.2d 659 (1957), holding that the Act giving the housing authority unqualified power to sue and be sued under § 49-2-6 waived any immunity the authority otherwise might have claimed under the state's privilege of governmental immunity, see 20 Ga. B. J. 258 (1957). For comment on Ethridge v. Lavonia, 101 Ga. App. 190, 112 S.E.2d 822 (1960), see 23 Ga. B. J. 129 (1960). For comment on City of Atlanta v. Mapel, 121 Ga. App. 567, 174 S.E.2d 599 (1970), as to municipal corporation's negligence liability for injuries sustained at municipal golf courses, see 22 Mercer L. Rev. 608 (1971).

ANALYSIS

• General Consideration
• Nonliability for Governmental Functions
• Liability for Ministerial Functions
• Nuisances
• Officers and Employees
• Parks and Recreation
• Roads and Bridges
• Sewers
• Transportation
• Other Duties

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

Keeping of prisoners by a city is ordinarily a governmental function, and for simple negligence in such a function a city is not liable. 1973 Op. Att'y Gen. No. U73-25.

Municipality's potential liability for acts of a probationer working on a community service project will have to be determined from the facts in each case, which will show whether the injury is the result of a nuisance as defined in former Code 1933, § 72-101 (see now O.C.G.A. § 41-1-1), or negligence as stated in former Code 1933, § 69-301 (see now O.C.G.A. § 36-33-1). 1975 Op. Att'y Gen. No. 75-32.

- 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.

- Use of a school bus for transporting a school band and school pupils of an independent school system to athletic contests participated in by the schools of the district would be a governmental operation and a city board of education is not liable for an injury received by a pupil in a school bus accident. 1945-47 Op. Att'y Gen. p. 220.

RESEARCH REFERENCES

C.J.S.

- 63 C.J.S., Municipal Corporations, § 882.

- Suit against railroad owned by or in which interest is held by United States or state, 8 A.L.R. 995.

Liability of town or municipality for libel or slander, 9 A.L.R. 351.

Liability of water or power company for interruption of pressure during progress of fire, 27 A.L.R. 1273.

Statutory requirement of adequate service and facilities by public utility as affecting liability for loss of private property through inadequate supply of water to extinguish fire, 27 A.L.R. 1279.

Liability of municipal corporation for tort of officer or employee of water department, 28 A.L.R. 822; 54 A.L.R. 1497.

Liability of municipal corporations for injuries due to conditions in parks, 29 A.L.R. 863; 42 A.L.R. 263; 99 A.L.R. 686; 142 A.L.R. 1340.

Commission and other modern forms of municipal government as affecting liability of municipality for torts, 30 A.L.R. 473.

Liability of municipality for tort in construction or operation of municipally owned railroad or street railway, 31 A.L.R. 1306.

Liability in respect of taxes derived from territory improperly annexed to municipal or political division, 35 A.L.R. 477.

Validity of contract exempting municipality from liability for negligence, 41 A.L.R. 1358.

Liability of municipality as affected by license issued by municipal officer, 42 A.L.R. 1208.

Liability of municipality for damages or compensation for abating as a nuisance what is not in fact such, 46 A.L.R. 362.

Liability of municipality in respect of municipal bathhouses, bathing beaches, and swimming pools, 51 A.L.R. 370; 57 A.L.R. 406.

Liability of municipality in consequence of its inability, refusal, or failure to collect the cost of local improvements from the property benefited, 51 A.L.R. 973; 172 A.L.R. 1030.

Liability of municipal corporations and their licensees for the torts of independent contractors, 52 A.L.R. 1012.

Liability of municipality in damages for wrongful revocation of permit or license, 55 A.L.R. 434.

Rule of municipal immunity from liability for torts pertaining to governmental functions as affected by constitutional guaranty of remedy for all injuries and wrongs, 57 A.L.R. 419.

Rule of municipal immunity from liability for torts pertaining to exercise of governmental functions as available to municipal lessee or concessioner, 57 A.L.R. 560.

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.

Liability of municipality where sewer originally of ample size has become inadequate by growth or development of territory, 70 A.L.R. 1347.

Liability of municipality for injury due to defective catch-basin covers, and the like, maintained in street in connection with drainage or sewer system, 71 A.L.R. 753.

Res ipsa loquitur as applicable in action against municipality for injuries from dangerous condition in parks, streets, or highways, 74 A.L.R. 1226.

Rule of municipal immunity from liability for acts in performance of governmental functions as applicable in case of personal injury or death as result of a nuisance, 75 A.L.R. 1196; 56 A.L.R.2d 1415.

Fire department as pertaining to the governmental or the proprietary branch of municipality, 84 A.L.R. 514.

Constitutionality or validity of statute or ordinance requiring a bond to discharge liability for damage as a condition of use of, or operations on, real property, 86 A.L.R. 803.

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.

Power of legislature to impose, or municipality to assume, liability for acts of officials or employees pertaining to governmental functions, 89 A.L.R. 394.

Right to and remedy in respect of damages due to negligent or delayed prosecution of condemnation proceedings, 92 A.L.R. 379.

Liability of municipality for injury by or incident to fireworks display, 93 A.L.R. 1356.

Liability of municipal corporation for its own misfeasance or nonfeasance, as distinguished from misfeasance or nonfeasance of officer or employee, 102 A.L.R. 656.

Power of city, town, or county or its officials to compromise claim, 105 A.L.R. 170; 15 A.L.R.2d 1359.

Liability of municipality because of misappropriation, diversion, or withholding of funds collected by or paid to it on account of special assessment against property for improvements, 107 A.L.R. 1354.

When statute of limitation commences to run against an action based on breach of duty by recording officer, 110 A.L.R. 1067.

Use of municipal automobile as a corporate or as a governmental function, 110 A.L.R. 1117; 156 A.L.R. 714.

Liability of municipality for damage to person or property due to hydrant, 113 A.L.R. 661.

Municipal corporation or other governmental unit as within term "corporation," "person," or other term employed in death statute descriptive of parties against whom the action may be maintained, 115 A.L.R. 1287.

Liability of public officer in respect of public money paid out in reliance upon unconstitutional statute, 118 A.L.R. 787.

Liability of municipality for enforcement of an unconstitutional or void ordinance, 118 A.L.R. 1054.

Municipal immunity from liability for torts, 120 A.L.R. 1376; 60 A.L.R.2d 1198.

Constitutionality of statute which relieves municipality from liability for torts, 124 A.L.R. 350.

Lease by municipality of property intended for use and benefit of public as affecting its duty and responsibility in respect of the manner and conditions of operation and maintenance of the property by the lessee, 129 A.L.R. 1163.

Tort liability of municipality or other governmental subdivision in connection with poor relief activities, 134 A.L.R. 762.

Liability for injury to person or damage to property as result of "blackout," 136 A.L.R. 1327; 147 A.L.R. 1442; 148 A.L.R. 1401; 150 A.L.R. 1448; 153 A.L.R. 1433; 154 A.L.R. 1459; 155 A.L.R. 1458; 158 A.L.R. 1463.

Immunity of municipality from liability for torts in exercise of governmental functions as applicable to torts outside municipal limits, 140 A.L.R. 1058.

Collection and disposal of garbage and rubbish as governmental or private function as regards municipal immunity from liability for tort, 156 A.L.R. 714.

Abrogation of state's immunity from liability or suit as affecting immunity of municipality or other governmental unit, 161 A.L.R. 367.

Remedy available against invalid judgment in favor of United States, state, or other governmental unit immune to suit, 163 A.L.R. 244.

Liability of municipality for fire loss due to its failure to provide or maintain adequate water supply or pressure, 163 A.L.R. 348.

Municipal liability for injury to voter in consequence of condition of polling place, 164 A.L.R. 472.

Effect of statute permitting state to be sued upon the question of its liability for negligence or tort, 169 A.L.R. 105.

Liability of municipal corporation for damage to property resulting from inadequacy of drains and sewers due to defects in plan, 173 A.L.R. 1031.

Tortious breach of contract as within consent to suit against United States or state on contract, 1 A.L.R.2d 864.

Liability of municipality or other governmental subdivision in connection with flood-protection measures, 5 A.L.R.2d 57.

Municipality's duty and liability with respect to excavation made by abutting owner to connect his property with service mains in street, 13 A.L.R.2d 922.

Liability of municipality for damage caused by fall of tree or limb, 14 A.L.R.2d 186.

Liability of municipality for injury or damage from explosion or burning of substance stored by third person under municipal permit, 17 A.L.R.2d 683.

Recovery of interest on claim against a governmental unit in absence of provision in contract or express statutory provision, 24 A.L.R.2d 928.

Immunity from liability for damages in tort of state or governmental unit or agency in operating hospital, 25 A.L.R.2d 203; 18 A.L.R.4th 858.

Tort liability of governmental unit for injury or damage resulting from insecticide and vermin eradication operations, 25 A.L.R.2d 1057.

Operation of garage for maintenance and repair of municipal vehicles as governmental function, 26 A.L.R.2d 944.

Tort liability of municipality or other governmental unit in connection with destruction of weeds and the like, 34 A.L.R.2d 1210.

Liability of municipality in damages for its refusal to grant permit, license, or franchise, 37 A.L.R.2d 694.

State's immunity from tort liability as dependent on governmental or proprietary nature of function, 40 A.L.R.2d 927.

Maintenance of auditorium, community recreational center building, or the like, by municipal corporation as governmental or proprietary function for purposes of tort liability, 47 A.L.R.2d 544.

Liability of municipality for injuries resulting from fall or slipping on debris or litter on outdoor stairway, 47 A.L.R.2d 1086.

Death action against municipal corporation as subject to statute of limitations governing wrongful death actions or that governing actions against a municipality for injury to person or property, 53 A.L.R.2d 1068.

Municipal operation of bathing beach or swimming pool as governmental or proprietary function, for purposes of tort liability, 55 A.L.R.2d 1434.

Municipal operation of sewage disposal plant as governmental or proprietary function, for purposes of tort liability, 57 A.L.R.2d 1336.

Municipality's liability for damage resulting from obstruction or clogging of drains or sewers, 59 A.L.R.2d 281.

Municipality's liability arising from negligence or other wrongful act in carrying out construction or repair of sewers and drains, 61 A.L.R.2d 874.

Suability, and liability, for torts, of public housing authority, 61 A.L.R.2d 1246.

Liability of municipality for torts in connection with airport, 66 A.L.R.2d 634.

Civil liability of school officials for malicious prosecution, 66 A.L.R.2d 749.

Liability or indemnity insurance carried by governmental unit as affecting immunity from tort liability, 68 A.L.R.2d 1437.

Waiver of, or estoppel to rely upon, contractual limitation of time for bringing action against municipality or other political subdivision, 81 A.L.R.2d 1039.

Liability of municipality for injuries resulting from falling or slipping on defective outdoor stairway or steps, 92 A.L.R.2d 469.

Snow removal operations as within doctrine of governmental immunity from tort liability, 92 A.L.R.2d 796.

Right of contractor with federal, state, or local public body to latter's immunity from tort liability, 9 A.L.R.3d 382.

Modern status of doctrine of sovereign immunity as applied to public schools and institutions of higher learning, 33 A.L.R.3d 703.

Liability of municipality on quasi contract for value of property or work furnished without compliance with bidding requirements, 33 A.L.R.3d 1164.

Tort liability of public schools and institutions of higher learning for accident occurring during school athletic events, 35 A.L.R.3d 725.

Tort liability of public schools and institutions of higher learning for accidents associated with chemistry experiments, shopwork, and manual or vocational training, 35 A.L.R.3d 758.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

Liability of municipality or other governmental unit for failure to provide police protection, 46 A.L.R.3d 1084.

Attorney's mistake or neglect as excuse for failing to file timely notice of tort claim against state or local governmental unit, 55 A.L.R.3d 930.

Liability of governmental entity for issuance of permit for construction which caused or accelerated flooding, 62 A.L.R.3d 514.

Municipal corporation's safety rules or regulations as admissible in evidence in action by private party against municipal corporation or its officers or employees for negligent operation of vehicle, 82 A.L.R.3d 1285.

State or municipal liability for invasion of privacy, 87 A.L.R.3d 145.

Governmental tort liability for social service agency's negligence in placement, or supervision after placement, of children, 90 A.L.R.3d 1214.

Governmental liability from operation of zoo, 92 A.L.R.3d 832.

Recovery of exemplary or punitive damages from municipal corporation, 1 A.L.R.4th 448.

Liability of governmental unit or its officers for injury to innocent occupant of moving vehicle, or for damage to such vehicle, as result of police chase, 4 A.L.R.4th 865.

Liability of urban redevelopment authority or other state or municipal agency or entity for injuries occurring in vacant or abandoned property owned by governmental entity, 7 A.L.R.4th 1129.

Liability of governmental officer or entity for failure to warn or notify of release of potentially dangerous individual from custody, 12 A.L.R.4th 722.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

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.

Municipal liability for negligent performance of building inspector's duties, 24 A.L.R.5th 200.

Liability of school or school personnel for injury to student resulting from cheerleader activities, 25 A.L.R.5th 784.