On April 3, 2007, William Wilcox and his son, Milton, were driving east on Interstate 16. At the same time, Jeremiah Fenn and Oscar Gilliam, both of whom were Dougherty County police officers, were driving in separate police vehicles on the same interstate in the same direction as Wilcox. After Gilliam passed by Wilcox, Fenn collided with Wilcox from the rear, causing Wilcox to lose control of his vehicle and crash. Wilcox sustained bodily injuries, and his son was killed in the crash. It is undisputed that, at the time of the accident, Fenn and Gilliam were acting within the course and scope of their employment as officers of the Dougherty County Police Department. Wilcox later filed suit against Fenn and Gilliam in their individual capacities,1 contending that the officers negligently operated their vehicles.2 On November 25, 2009, Wilcox filed two motions for partial summary judgment one as to the individual liability of Fenn and Gilliam, and one as to the constitutionality of OCGA § 36-92-3. On January 14, 2010, Fenn and Gilliam filed their own motion for summary judgment based on the immunity provided to them under OCGA § 36-92-3 a. This statute provides: Any local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefor. Nothing in this chapter, however, shall be construed to give the local government officer or employee immunity from suit and liability if it is proved that the local government officer’s or employee’s conduct was not within the performance of his or her official duties. On February 8, 2011, the superior court entered an order denying Wilcox’s motions and granting Fenn’s and Gilliam’s motion, thereby finding them immune from Wilcox’s action. In granting summary judgment to Fenn and Gilliam based on the immunity provided to them under OCGA § 36-92-3, the superior court upheld the constitutionality of the statute. Wilcox now appeals these rulings, arguing that OCGA § 36-92-3 must be found to be unconstitutional because it is not a part of the Georgia Tort Claims Act “GTCA”. See OCGA § 50-21-20 et seq. We disagree.
In Gilbert v. Richardson , 264 Ga. 744, 745 1 452 SE2d 476 1994, we explained the origins of the GTCA in the following manner: The common law doctrine of sovereign immunity, adopted by this state in 1784, protected governments at all levels from unconsented-to legal actions. The doctrine was given constitutional status in 1974, but the state remained absolutely immune from suit until 1983 after voters approved an amendment to the State Constitution waiving the sovereign immunity of the “state or any of its departments and agencies” in actions for which liability insurance protection was provided. Ga. Const. of 1983, Art. I, Sec. II, Par. IX. In 1991, the constitutional doctrine of sovereign immunity was amended to extend sovereign immunity “to the state and all of its departments and agencies,” and this immunity is to prevail except as specifically provided therein. Ga. Const. of 1983, Art. I, Sec. II, Par. IX e. Footnotes and citations omitted.
