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As Atlanta school injury lawyers, we get frequent phone calls from parents whose children have been badly hurt or killed in schools or school-related activities, and unfortunately in those situations, there are serious limitations on remedies. The first important distinction is between private and public schools. In the private school scenario, there is no sovereign immunity for the school and the relationship between the victim and the school is governed by contract law.
Cases against private schools are relatively simple to navigate and involve community liability and injury issues. Their defenses usually involve waiver forms and assumption of the risk and contributory negligence issues. This article deals primarily with the challenges that arise in suing the County School systems in Georgia.
The beginning point of the analysis is that the Counties are graced with a “force field” against lawsuits called sovereign immunity. The idea from time immemorial is that the King is above the law and that was distilled through the years and exists today as sovereign immunity “the King is immune.”So, in most situations, you cannot sue the County or the School Board or any part of the above.
What are the exceptions? There are specific laws that say that the County is immune and they are found at OCGA 36-1-4. A county “is not liable to suit for any cause of action unless made so by statute.” There are a few exceptions, with the most common being for car accidents with County employees. For injuries and wrongful death arriving out of the use by the County of motor vehicles, immunity is waived up to a statutory limit or to the amount of liability insurance held by the County, whichever is greater. Gilbert v. Richardson, 264 Ga. 744 (1994); O.C.G.A. § 33-24-51; OCGA 36-92-2 (sets mandatory minimum for waiver up to $500,000 per person)
But for most other purposes, the County and it’s subsidiary branches are immune from suit. So, is that it? Is there nothing you can do when the County negligently causes a child to be injured or killed? Not necessarily.
The second part of the analysis is whether you can sue the teacher, the janitor or school officials personally for their specific negligence in causing the injury. People working for the government who get sued can be either sued in their “official capacity” (which is really just a suit against the County and will not work as stated above) and their “personal capacity.” So if a suit is filed against a school teacher for the County in a hypothetical case, the question is whether the teacher has the “official immunity” force field protecting her or him. If the force field is in place, that’s it, no matter how bad the injury or death, there is nothing you can do.
How do you determine if the immunity force field is on or off? It comes down to whether or not the employee was breaking a hard and fast written rule when they screwed up or whether it was a judgment call; the ministerial vs. discretionary distinction. For example, if the County policy says that a teacher must have students wearing goggles during all science experiments and the teacher does not follow through and a student loses an eye during the experiment, then the force field is off and the lawsuit may proceed against the teacher and the County will generally pay for any damages determined by a jury.
But, if the rule book just says eyewear is required if the experiment is using explosive materials only and it is not clear if the experiment qualifies, then the Court will decide that it was a judgment call and the teacher has the force field, is immune and there is no lawsuit.
The same rules come into play with slip and fall cases at school, falling off the jungle gym and fights. Remember that you need to provide “before litigation notice” or ante litem notice to counties. In Georgia, you have 12 months from the date of loss under OCGA 36-11-1.
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