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McElmurray v. Augusta-Richmond County7/11/2005
e Department of Corrections and other defendants. None of those cases involved a waiver of sovereign immunity under OCGA § 33-24-51. Moreover, although Donaldson reasoned that "the state may withdraw its waiver of sovereign immunity at any time before a citizen acts in reliance on that waiver by filing suit," our Supreme Court in Curtis later held that, where the cause of action accrued before the effective date of the 1991 amendment, withdrawal of the waiver of sovereign immunity "remains effective regardless of whether the action was filed before or after the effective date of the amendment." Therefore, Donaldson is both distinguishable from this case, and (contrary to Bontwell and Lamaine) would appear to be no longer controlling in light of Curtis.
(b) We must therefore address the correctness of the trial court's ruling that any damage to the McElmurrays' lands by application of the sewage sludge would not be covered by liability insurance because it would not have arisen from motor vehicle use by the city within the meaning of any liability insurance policy. In so ruling, the trial court found Harry and Saylor controlling and distinguished Mitchell and Crider.
In Mitchell, an employee of the City of St. Mary's was operating a truck containing an insect fogger device when he sprayed the plaintiff with a highly poisonous and toxic chemical resulting in her total disability. The question was whether the city had waived its governmental immunity under OCGA § 33-24-51. The city urged that the plaintiff's injury , alleged to be the result of spraying from the truck rather than the result of a more direct contact with the truck in its capacity as a "motor vehicle," was not such an activity contemplated by the statute. We found this argument unpersuasive, reasoning:
Whether or not an injury arose from the "use" of a motor vehicle within the contemplation of a liability policy or statute depends upon the factual context of each case. In this setting the term does not imply "remoteness," but does extend beyond actual physical contact. And it would seem to extend at least to the point, beyond physical contact, where control over the instrumentality is easily or reasonably at hand, and particularly when it is still being "utilized." It follows that where a truck is being used for mosquito eradication, damages resulting from the spraying of insecticide from that truck are injuries arising by reason of the "use" of that truck.
The plaintiff in Crider was an inmate in a county detention center. While trimming trees in the bucket of a backhoe, he was thrown to the ground and severely injured. He filed a negligence action against the county, which had liability insurance that had coverage specifically applicable to vehicles such as a backhoe. The question was whether the backhoe could be considered a motor vehicle within the meaning of OCGA § 33-24-51. We held that it could.
The plaintiff in Saylor was injured while working as an inmate on a prison work detail. At the time of the incident, he was sharpening a swing blade on a vise attached to the bumper of a van for which the county had obtained liability insurance. After being bumped by a tractor, Saylor lost his balance and fell across the swing blade. He brought a negligence action against the county. The trial court granted the county's motion for summary judgment based on its defense of sovereign immunity, on the ground that its liability insurance policy did not cover the incident. We affirmed. We held that the question to be answered was whether the injury originated from, had its origin in, grew out of, or flowed from the use of the motor vehicle as a vehicle. We answered this question in the negative, because
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