Use of Adopted State-Wide Codes may Provide a NEW HOPE for Plaintiffs in Piercing State Law Official Immunity Protections


By: Charles Reed, Jr.

Grand Moff Tarkin: I think it is time we demonstrated the full power of this station[1].

The doctrine of official immunity, codified in the Georgia Constitution, bars state law claims against a public employee in his or her individual capacity. This constitutional bar provides tremendous power to eliminate lawsuits brought by persons against public employees. Defense counsel representing government entities and public employees have long used with success the twin ion cannons of motions to dismiss and motions for summary judgment to obliterate lawsuits filed by plaintiffs on immunity grounds without ever reaching a jury.

General Dodonna: The approach will not be easy. You are required to maneuver straight down this trench and skim the surface to this point. The target area is only two meters wide. It’s a small thermal exhaust port, right below the main port. The shaft leads directly to the reactor system. A precise hit will start a chain reaction which should destroy the station… Only a precise hit will set up a chain reaction

A public employee that negligently performs a ministerial duty or performs a discretionary act with actual malice is not shielded by official immunity. Over the past few years, Georgia appellate courts have denied dispositive motions if there were allegations that could establish a ministerial duty on the public employee’s part. These ministerial duties could arise from a written or unwritten policy, a supervisor’s specific directive, a statute or a county ordinance governing the conduct at issue. Plaintiffs have, with varying success, attempted to navigate the narrow chasm of immunity by alleging specific policies or state statutes purporting to establish a ministerial duty.

Commander #1: We’ve analyzed their attack, sir, and there is a danger. Should I have your ship standing by?  Grand Moff Tarkin: Evacuate? In our moment of triumph? I think you overestimate their chances.

Recently, a plaintiff’s attorney exposed another potential vulnerability that, in the hands of a skillful pilot, could lead to further erosion of the effectiveness of official immunity arguments at the motion stage. In October 2013, a high school student was severely burned during the course of a school science experiment and incurred more than $230,000 in medical costs. In her lawsuit, she cited several international fire codes, laws and regulations that had been incorporated into the State of Georgia’s fire safety code and adopted by county ordinance relating to the storage, handling and use of certain chemicals used during the science experiment. The suit alleged that these fire codes were mandatory and non-discretionary duties and the teacher, principal and school system’s failure to abide by these mandatory provisions amounted to violations of ministerial duties. Based in part on these allegations and the severity of the student’s injuries, the parties mediated the case and reached a settlement of $1.5 million.

Han Solo: Great shot kid, that was one in [$1.5] million!

Given the breadth and specificity of international building and other codes, defense counsel should not be overconfident and dismiss out-of-hand the potential impact that state codes could pose in widening the avenues in which official immunity may be attacked. Building codes, fire codes and other international standards have been incorporated by the State of Georgia and many counties and municipalities have, in turn, adopted these standards into their ordinances. While there is no definite appellate ruling yet, this case has at least exposed a danger that building codes and other codes could be used as yet another avenue in attempting to pierce the protection that official immunity provides to public employees.

[1] All quotes are from Star Wars: A New Hope. Lucas, G., Kurtz, G., Ford, H., Fisher, C., Hamill, M., Jones, J. E., Guinness, A., … Twentieth Century Fox Home Entertainment, Inc. (2004). Star wars: Episode IV. Beverly Hills, Calif: 20th Century Fox Entertainment.