In this case the Plaintiffs, as personal representatives of the estate of their son, filed a negligence and wrongful death complaint against the City and the City Clerk (Ms. Starling) after their son died following an altercation with a bouncer at a bar. The City's insurer filed a motion to intervene. The trial court granted the City and City Clerk summary judgment, and denied the insurer's motion to intervene. Both the parents and the insurer appealed. The Court of Appeals sustained the trial court’s grant of summary judgment to the City of Statesboro. However, the Court of Appeals reversed the grant of summary judgment as to the City Clerk as this was not fully addressed by the trial court originally. Thus the Court of Appeals remanded that issue to the trial judge for consideration of the threshold issue of qualified immunity.
As to the City of Statesboro, the Court of Appeals held in a unanimous decision that sovereign immunity is applicable to the issue of a nuisance. The Court held that “the Gattos contend that under common law dating back over 100 years, a municipality may be liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or ministerial function. We disagree.” The Court followed the lines of the Stanford v. City of Albany reasoning in holding that the “nuisance exception” did not apply because the damage at issue was an injury to person or loss of life and not to an interest in land. As such, the Court found that sovereign immunity was applicable to the nuisance claims against the City.
The Court also held that the record demonstrates the non-contestable facts complained of constituted a governmental function. The court looked at the endorsement in the liability policy and held that the language of the endorsement “expressly provides that it will not cover occurrences when sovereign immunity applies. As set out above, the actions challenged in this lawsuit involve a governmental function to which sovereign immunity applies. It thus follows that because the insurance policy does not cover the Gattos’ claims here, there is no legislative waiver of sovereign immunity.”
The court rejected the argument of judicial estoppel. Because the court determined that sovereign immunity applies to the city, it refused to consider the remaining arguments asserted by the Gatto’s, including issues or proximate cause, maintenance of a nuisance and the public duty doctrine.