This following information is provided for general informational purposes only, does not constitute legal advice, and may not apply to your specific situation. Municipal officials should consult with their city attorney before taking any action based on the content of this publication.

Cities – as well as city officials – can be subject to liability in a variety of situations under both state and federal law. However, both cities and city officials are immune from certain types of liability in specific circumstances. The following addresses some types of liability that cities and city officials may face under both federal and state law and discusses the differing levels of immunity and standards for immunity for both cities and their officials.

State Law

Cities are liable for breach of contract in largely the same way as private entities. However, when a city acts ultra vires, or without authority, the contract will be held void.¹

Cities, counties, and their employees and officers may be held liable for torts. Common examples of torts that cities may face include personal injury actions based on accidents that occurred in city facilities or based on the actions of city employees. Generally, cities can be held liable for the acts of their officials or employees through respondeat superior, liability by a principal for the acts of his agent, where the servant or agent is acting in the course of his or her agency or employment.²

Sovereign Immunity

Municipalities and their officials are immune from suit except to the extent that sovereign immunity has been waived or in specifically limited circumstances. The waiver of sovereign immunity can be accomplished by action of the General Assembly or by a city’s purchase of liability insurance. Additionally, immunity is waived for the performance of non-governmental functions (also called proprietary functions).³ For example, a city-owned hospital is not covered by sovereign immunity because it performs the same functions as a private hospital.⁴

Local governments may provide for the payment of claims through any method. Thus, local governments may purchase insurance, participate in an interlocal risk management agency, establish a reserve fund for the payment of claims, simply pay claims as they arise, or any combination of the foregoing. All tort actions for state level motor vehicle claims, including those filed against a local government as a joint tortfeasor, must be brought in the state or superior court of the county wherein the local government resides.⁵

Official Immunity

As described by the Georgia Supreme Court:

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. [Official] immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their authority and done without willfulness, malice or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.⁶

For the purpose of official immunity, a “discretionary action” is one calling for the exercise of personal deliberation and judgment, entailing examining facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. For example, the Georgia Court of Appeals held that a county’s decision on how to allocate resources to repair roads after widespread flooding was discretionary.⁷ The court found that since the decisions required the officials to use judgment and discretion in determining how to allocate workforces, equipment, and time, the officials were entitled to official immunity.

City officials and employees are liable for the negligent performance of ministerial acts. “Ministerial acts” are those which are required by law or policy that are simple, absolute and definite, and require little or no exercise of judgment. For example, a court declined to extend official immunity to former court clerks who failed to inform the Department of Corrections that an inmate’s sentence had been amended, causing the inmate to spend 22 extra months in jail.⁸ Courts have also declined to extend sovereign immunity to inspectors when their failure to do an adequate job causes damages.⁹

Nuisance

For Georgia municipalities, there is no sovereign immunity for nuisance. A nuisance is defined generally as anything that causes hurt, inconvenience, or damage to another. For a city to be liable for nuisance, the plaintiff must also establish that the city knew of a condition that constituted a nuisance and failed to take action within a reasonable time to correct it.¹⁰ A city will not be liable for nuisance resulting from factors, such as increased construction, when the city took no part in the activity that caused the damage. However, a city can be held liable in a nuisance action when a construction project disrupts drainage and causes damage.¹¹

Federal Law

The largest potential liability under federal law for cities and city officials is based on 42 U.S.C. § 1983, a statute that was part of the Civil Rights Act of 1866, which was enacted to implement the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution after the close of the Civil War. In part, Section 1983 states as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

Specifically, Section 1983 authorizes relief against a city, city official, or city employee when an individual’s federally protected rights have been violated.

Section 1983 has been utilized to establish liability on the part of cities, city officials, and city employees in circumstances that include excessive use of force during an arrest, persona injuries based on the use of a city vehicle or equipment, or for alleged mistreatment of employees or citizens.¹² The U.S. Supreme Court has held that conduct by police officers, even when it violated state law, could constitute state action taken under color of state law and could thereby be actionable under Section 1983.¹³

Furthermore, the U.S. Supreme Court has held that there is not respondeat superior under Section 1983, and that each possible defendant is responsible only for that defendant’s wrongs. Although a municipality cannot be held liable under a theory of respondeat superior for purposes of Section 1983, a municipality can be held liable for the enforcement of a municipal policy, practice, or custom which violates the plaintiff’s federally established rights. Thus, when a city official or employee acts based on an ordinance or recognized city policy, practice, or custom, the city can be held directly liable for the official’s or employee’s actions, even though the official or employee may be immune from suit in her or her individual capacity. There is no immunity for municipalities under Section 1983.¹⁴

Absolute Immunity

City officials have absolute immunity for acts taken as part of their legislative function. Whether an act is considered to be “legislative” for purposes of discerning absolute immunity is determined based on the nature of the act, rather than on the motive or intent of the official performing it.¹⁵

Qualified Immunity

Qualified immunity shields government officials and employees performing discretionary functions from liability for civil damages to the extent that their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known.¹⁶ Again, there is a distinction between “discretionary functions” which require some judgment or decision making by the official or employee and “ministerial functions” which do not require any application of judgment or significant decision making by an official or employee.¹⁷

In order for an official or employee’s conduct to be found to violate a clearly established statutory or constitutional right, the law must be sufficiently well established so that a reasonable official would understand that his or her individual action would violate the plaintiff’s federal rights. However, it is not necessary for qualified immunity to be waived and liability to attach that there be a case already decided on the same or materially similar facts as the one presented by the plaintiff. It is enough if the officials have fair warning that their conduct violates established law.¹⁸ This is particularly true when the existing case law strongly indicates unconstitutionality and the conduct of the officials or employees is particularly egregious.¹⁹

Indemnification, Insurance, and Risk Management

Cities are authorized to purchase liability or indemnity insurance covering mayors and councilmembers as well as city employees.²⁰ Instead of or in addition to buying insurance, a city may adopt a policy to defend civil, criminal, or quasi-criminal actions brought against its officials and employees for actions taken in their official capacity, except for crimes involving theft of city property or money.²¹

Regarding the latter, a city may reimburse the defense costs of those found not guilty or of those against whom charges are dismissed. Municipalities may also spend state, federal, and local funds for this purpose.²² However, a city is not required to defend such actions.²³ Municipalities are permitted to settle claims out of court, thereby avoiding costly and time-consuming court battles.

Municipal officials may reduce the possibility of lawsuits through the liability prevention process known as risk management.²⁴ Risk management consists of identification, measurement, control, and financing of losses and loss prevention.

• Identification involves determining areas of potential liability such as law enforcement, personnel practices and procedures, regulatory functions, and the delivery and denial of services. Review of a city’s claims history can be useful in identifying areas for loss prevention activities.
• Measurement is predicting the frequency and financial severity of potential suits.
• Control means establishing, implementing, monitoring, and updating policies and procedures related to the exposure areas identified.
• Financing involves providing funds to reduce or eliminate risks and to cover risks that cannot be eliminated.

Georgia law allows municipalities to form with other cities to establish interlocal risk management agencies through which they can jointly establish a self-insurance fund or purchase coverage to insure against general liability claims.²⁵ Many cities have done this through GMA’s GIRMA program.

Additionally, the application of good old-fashioned common sense can help municipalities prevent liability. Several simple steps to bear in mind are:

1. Don’t use public office for private matters.
2. Correct mistakes; don’t ignore them.
3. Have, follow, and update policies.
4. Conduct and attend training.
5. Only adopt those policies and regulations that the city is prepared to enforce.
6. Generate only the infrastructure that the city is prepared to maintain.
7. Conduct periodic liability coverage audits.
8. Consult with the city attorney on controversial matters or when in doubt about the legality or potential consequences of an action.

Georgia Immigration Law Liability

The Georgia General Assembly has enacted a series of laws which attempt to address the issue of undocumented immigrants in the state. The state relies heavily upon local governments to carry out the numerous requirements in these state immigration laws. Municipalities must collect affidavits from contractors,²⁶ private employers,²⁷ and applicants for public benefits, amongst the various mandates placed upon local governments. Failure to comply with these state mandates could result in serious penalties for the municipality as well as municipal employees and officials.²⁸

Municipalities face possible loss of qualified local government status if they fail to follow the provisions of this area of Georgia’s immigration laws.²⁹

End Notes

¹ CSX Transportation, Inc. v. The City of Garden City, 325 F.3d 1236 (2003)
² Black’s Law Dictionary, 8th ed. 2004.
³ O.C.G.A. § 36-33-1
⁴ Thomas v. Hospital Authority of Clarke County, 264 Ga. 40, 440 S.E.2d 195 (1994).
⁵ O.C.G.A. § 36-92-4
⁶ Cameron v. Lang, 274 Ga. 122, 123, 549 S.E.2d 341 (2001)
⁷ Norris v. Emanuel County, 561 S.E.2d 240, 254 Ga. App. 114 (Ga. App. 2002)
⁸ McGee v. Hicks, 303 Ga. App. 130, 132, 693 S.E.2d 130, 131 (2010)
⁹ Georgia Dept. of Transp. v. Heller, 285 Ga. 262, 674 S.E.2d 914 (2009); Gregory v. Clive, 282 Ga. 476, 651 S.E.2d 709 (2007)
¹⁰ Gilbert v. City of Jackson, 287 Ga. App. 326, 651 S.E.2d 461 (2007); City of Columbus v. Barngrover, 250 Ga. App. 589, 552 S.E.2d 536 (Ga. App. 2001); Wright v. City of Cochran, 250 Ga. App. 314, 253 S.E.2d 844 (Ga. App. 2002)
¹¹ City of Roswell v. Bolton, 271 Ga. App. 1, 659 S.E.2d 659 (2004)
¹² (Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378 (1989); Misek v. City of Chicago, 783 F.2d 98 (1986)
¹³ Monell v. Dept. of Social Services, 436 U.S. 658 (1978)
¹⁴ City of Cave Spring v. Mason, 252 Ga. 3, 310 S.E.2d 892 (1984)
¹⁵ Bogan v. Scott-Harris, 523 U.S. 44 (1998); Whipple v. City of Cordele, 231 Ga. App. 274, 499 S.E.2d 113 (Ga. App. 1998)
¹⁶ Pearson v. Callahan, 129 S.Ct. 808 (2009), modifying the ruling in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001) to give the court more flexibility when determining whether a person is entitled to immunity by analyzing (1) whether a constitutional right may have been abridged and (2) whether the right was “clearly established” at the time of defendant’s conduct.
¹⁷ Merrow v. Hawkins, 266 Ga. 390, 467 S.E.2d 336 (1996)
¹⁸ Hope v. Pelzer, 122 S.Ct. 2508 (2002)
¹⁹ Sheldon Nahmod, “Section 1983 Overview and Update”, 50th Annual Institute for City and County Attorneys (Athens: Institute of Continuing Legal Education in Georgia), 3
²⁰ O.C.G.A. § 36-35-4
²¹ O.C.G.A. § 45-9-21
²² O.C.G.A. § 45-9-21 et seq.; Haralson County v. Kimball, 243 Ga. App. 559, 533 S.E.2d 762 (2000); Horn v. City of Atlanta, 236 Ga. 247, 223 S.E.2d 647 (1976); Haywood v. Hughes, 238 Ga. 668, 235 S.E.2d 2 (1977)
²³ (Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Wayne County Board of Commissioners v. Warren, 236 Ga. 150, 223 S.E.2d 133 (1976); Horn v. City of Atlanta, 236 Ga. 247, 223 S.E.2d 647 (1976)
²⁴ Jose J. Anchondo, “Liability Prevention (Risk Management) for Public Employees and Officials,” Intergovernmental Brief no. 78-3 (Austin: Texas Advisory Commission on Intergovernmental Relations, September 1978)
²⁵ O.C.G.A. § 36-85-1 et seq.
²⁶ O.C.G.A. § 13-10-91(b)
²⁷ O.C.G.A. § 36-60-6
²⁸ O.C.G.A. § 45-10-28(c)
²⁹ O.C.G.A. § 13-10-91(b)(7)