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HARRY v. GLYNN COUNTY6/1/1998
Michael Harry sued Glynn County and Franklin Wallace, an employee of Glynn County, for damages arising from the death of Harry's wife. Ms. Harry collapsed in a restaurant and Wallace was the paramedic who responded to the call for emergency aid and unsuccessfully treated her and transported her to a hospital. After her death, Harry contended in his suit that Wallace had failed to provide the proper treatment to Ms. Harry, causing her death, and that Glynn County was liable as his employer. Glynn County and Wallace raised, among other defenses, governmental immunity and official immunity. The trial court granted the defendants' motion for summary judgment on their immunity defenses.
1. With regard to Glynn County's immunity, Harry attacks on two grounds the validity of Art. I, Sec. II, Par. IX, Ga. Const. 1983, which provides counties with the shield of governmental immunity: that it conflicts with earlier provisions of the Constitution, and that the ballot pursuant to which the Constitution was amended to add that paragraph was defective. Assuming solely for the purpose of resolving this issue that there is any conflict between Art. I, Sec. II, Par. IX, and any earlier constitutional provision, the first contention is controlled adversely to Harry by our holding in Copeland v. State, 268 Ga. 375 (4) (490 S.E.2d 68) (1997), that an amendment will not be ineffectual or invalid merely because it conflicts with existing provisions.
The second argument is controlled adversely to him by our decision in Donaldson v. Dept. of Transp., 262 Ga. 49 (1) (414 S.E.2d 638) (1992), upholding the validity of the amendment against the same challenge.
Harry also asserts that if counties are cloaked with governmental immunity, it was waived in this case by the purchase of insurance covering "the negligence of . . . employees arising from the use of a motor vehicle." OCGA ยง 33-24-51. He contends that the waiver applies because an ambulance was used to bring Wallace to the scene, because part of the diagnosis and treatment occurred while she was in the ambulance, and because it was used to transport Ms. Harry to a hospital. Whether an event arises from the "use" of a motor vehicle depends largely on the circumstances, and a bright-line definition is elusive. Roberts v. Burke County School Dist., 267 Ga. 665, 667 (482 S.E.2d 283) (1997). What is clear, however, is that the alleged negligence must involve the use of the motor vehicle. "The procurement of insurance under this statute does not constitute a waiver of sovereign immunity with regard to personal injury caused by the county's negligence, unless the negligence of its `officer, agent, servant, attorney, or employee' arises from the use of a motor vehicle. [Cits.]" Simmons v. Coweta County, 229 Ga. App. 550, 552 (494 S.E.2d 362) (1997). The alleged negligence in this case was Wallace's misdiagnosis and failure to use defibrillation, acts which did not involve the use of the ambulance. Indeed, Wallace's treatment of Ms. Harry began where she collapsed, and although she was moved to the ambulance and was transported in the ambulance, there is no evidence that the ambulance and its use played any part in Wallace's diagnosis or choice of treatment. Any negligence in his acts simply did not "arise from the use of a motor vehicle." Accordingly, we agree with the trial court that no waiver based on the purchase of insurance occurred in this case.
Since Harry's challenges to the constitutional provision for governmental immunity have no validity, the trial court was correct in holding that counties are afforded immunity from suit by that provision. Gilbert v. Richardson, 264 Ga. 744 (2) (452 S.E.2d 476) (1994). Since there has been no waiver of t
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