GA Code § 36-92-3 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 92 - Waiver of Immunity for Motor Vehicle Claims|§ 36-92-3. No Employee Liability; Parties to Litigation; Evidence; Bar to Further Recovery

  Any local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefor. Nothing in this chapter, however, shall be construed to give the local government officer or employee immunity from suit and liability if it is proved that the local government officer's or employee's conduct was not within the performance of his or her official duties.   A person bringing an action against a local government entity under the provisions of this chapter shall name as a party defendant the local government entity for which the officer or employee was acting and shall not name the local government officer or employee individually. In the event that the local government officer or employee is individually named for an act for which the local government entity is liable under this chapter, the local government entity for which the local government officer or employee was acting shall be substituted as the party defendant.   For the purpose of presenting evidence at the trial of a case brought under the waiver provisions of this chapter, a plaintiff calling as a witness the present or former local government officer or employee whose alleged tort forms the basis of the claim against the local government entity defendant shall be allowed to subject such witness to cross-examination.   Subject to the provisions contained in Code Sections 51-1-32 through 51-1-34, a settlement or judgment in an action or settlement on a claim brought pursuant to this chapter constitutes a complete bar to any further action by the claimant against a local government officer or employee or the local government entity by reason of the same occurrence.   This chapter shall not waive the workers' compensation exclusive remedy when local government officers or employees are injured on the job.     (Code 1981, §36-92-3, enacted by Ga. L. 2002, p. 579, § 3.)   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 2002, in subsection (d), a comma was added following "51-1-34" and a comma was deleted following "or employee".   JUDICIAL DECISIONS   Construction.    - General Assembly in O.C.G.A. § 36-92-3 does not eliminate the ability of a plaintiff to recover for his or her injuries but simply shifts the responsibility to pay damages in certain situations from the individual employee to the local government entity, which comports with the General Assembly's general authority to modify common law rights of action. DeLoach v. Elliott, 289 Ga. 319, 710 S.E.2d 763 (2011).   Claim against police officer barred.    - Trial court did not err in granting a police officer summary judgment in the officer's individual capacity on the ground that the officer was protected from suit under O.C.G.A. § 36-92-3(a) because a driver brought a claim against the officer and a city pursuant to § 36-92-3, and the trial court granted summary judgment to the city; because the driver did not enumerate that decision, it was final and, pursuant to § 36-92-3(d), provided a "complete bar" to any future suit brought by the driver against the city or the employee and involving the tortious act at issue in the case. DeLoach v. Elliott, 289 Ga. 319, 710 S.E.2d 763 (2011).    Trial court properly concluded that O.C.G.A. § 36-92-3 barred the driver and the driver's spouse from recovering against the officer in the officer's official capacity and, thus, properly dismissed the officer from the case. Ray v. City of Griffin, 318 Ga. App. 426, 736 S.E.2d 110 (2012).   Claim against sheriff's deputy barred.    - Summary judgment was properly granted to the deputy as the deputy was not subject to liability for the automobile accident, and the plaintiff's claims against the deputy were barred because the term "local government entity" included sheriffs' offices; any local government officer or employee who committed a tort involving the use of a covered motor vehicle while in the performance of the employee's official duties was not subject to lawsuit or liability; and the deputy was employed as a county sheriff's deputy and the deputy was driving a county-owned vehicle en route to the sheriff's office's evidence room where the deputy worked as an evidence custodian when the accident with the plaintiff occurred. Davis v. Morrison, 344 Ga. App. 527, 810 S.E.2d 649 (2018).    Trial court erred in denying the defendants' motion to dismiss the deputy on the ground that the plaintiff's tort claim was barred by O.C.G.A. § 36-92-3(a) because the deputy was not a governmental entity; rather, the deputy was an employee of the county sheriff's department, was on duty, and was driving a county-owned patrol vehicle when the accident that injured the plaintiff occurred; thus, the deputy was not subject to liability for the accident and the claims against the deputy were barred. Moats v. Mendez, 349 Ga. App. 811, 824 S.E.2d 808 (2019).    Construction with O.C.G.A. § 50-21-25. - Due to the nearly identical language between O.C.G.A. §§ 36-92-3 and50-21-25, the General Assembly intended to provide immunity for municipal employees in the context of torts involving a covered motor vehicle, which is comparable to the immunity granted to state employees in the context of all torts, as long as the pertinent conditions have been satisfied; thus, by the passage of O.C.G.A. § 36-92-3, the legislature intended to foreclose all recovery against municipal employees for torts committed within the scope of employment and involving the use of a covered motor vehicle. DeLoach v. Elliott, 289 Ga. 319, 710 S.E.2d 763 (2011).   Government entity substituted as party.    - Intent of O.C.G.A. § 36-92-3(b) is that the government entity should be substituted as a party to a suit whenever one of the entity's employees has committed "an act for which the local government entity is liable under this chapter;" the selected phrase is merely a description of when the government entity should replace the employee because if the government entity would not be liable under O.C.G.A. § 36-92-1 et seq., as when the employee committed the tort using an uncovered motor vehicle, then the government entity is not "liable under this chapter" and need not be substituted. DeLoach v. Elliott, 289 Ga. 319, 710 S.E.2d 763 (2011).   Employee acting within scope of employment.    - Driver's argument that a city employee was acting outside the scope of employment at the time of an accident was without merit because the employee's act of crossing a private shopping center before pulling onto the road was not unlawful under O.C.G.A. § 40-6-20(e) (disregard of a traffic signal) or O.C.G.A. § 16-7-21(b)(1) (criminal trespass); the employee was, therefore, immune from suit and liability based on O.C.G.A. § 36-92-3. Guice v. Brown, 334 Ga. App. 199, 778 S.E.2d 823 (2015).    Cited in Hartley v. Agnes Scott College, 295 Ga. 458, 759 S.E.2d 857 (2014).