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Smith v. Chatham County11/17/2003
Roger and Loretta Smith filed a personal injury action against Chatham County and Chatham County police officers James Coleman, Andrew Osteen, and Malcolm Kendrick after the Smiths' car was struck by a suspect's pickup truck during a police chase. The trial court granted summary judgment to the County based on sovereign immunity, and to the police officers based on official immunity. The Smiths appeal. We affirm the judgment of the trial court.
The record shows that Officer Coleman was working as an off-duty police officer at a car dealership. When he arrived on the car lot at 11:00 p.m. in a Chatham County police vehicle, he noticed a pickup truck with a dealer's drive-out tag parked near a row of used cars. The truck drove off slowly, heading north on Abercorn Street. The officer then noticed a man walking between the used cars. The man crossed Abercorn Street and ran into a wooded area. The officer then watched as the pickup truck he noticed earlier slowly traveled south on Abercorn Street. The officer believed the driver of the truck was trying to pick up the man he saw running into the woods. The pickup truck made a u-turn and then began traveling slowly in the opposite direction. Based on what he saw and the fact that there had been car break-ins and thefts at dealerships in the area, the officer decided to stop the truck to investigate.
The officer began following the truck, and activated his emergency lights and siren. The officer called the police dispatcher and notified him of the pursuit. The truck's driver did not stop, and the officer followed him through several intersections. Because there was traffic at one intersection, the officer was unable to follow the truck through it. Two other officers, Osteen and Kendrick, took over the pursuit at that point. They notified the police dispatcher that they were continuing the pursuit, and maintained radio contact with the dispatcher.
The pickup truck approached the intersection of Bull Street and Washington Avenue. Roger Smith had stopped at a stop sign on Washington Avenue and began to turn left onto Bull Street. The truck swerved, then collided with the Smiths' vehicle. Roger Smith suffered severe injuries to his arm, and Loretta Smith, his passenger, was also injured. The Smiths sued the officers and the County for their injuries.
1. The doctrine of sovereign immunity protects governments from legal action unless they have waived their immunity from suit. The immunity, at least for counties, may only be waived by a legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.
The Smiths maintain that OCGA § 33-24-51 (b) is the legislative act which specifically provides that Chatham County's sovereign immunity is waived. As discussed in detail below, that statute provides that a government waives immunity to the extent it purchases liability insurance for its employees' negligent use of a motor vehicle. According to the Smiths, the County has waived sovereign immunity by having liability insurance.
The County responds that OCGA § 33-24-51 does not establish liability in this case because the County has not purchased a liability insurance policy. We agree with the County and affirm the trial court's judgment on the issue of sovereign immunity.
A waiver of sovereign immunity must be established by the party seeking to benefit from the waiver. Thus, the Smiths had the burden of establishing that the County waived sovereign immunity by obtaining liability insurance protection covering the Smiths' claim.
OCGA § 33-24-51 (a) provides, in relevant part, that a county is authorized in its discretion to sec
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