TIFT COUNTY SCHOOL DISTRICT et al.
MARTINEZ et al
Cert. applied for.
Sovereign immunity. Tift State Court. Before Judge Mims.
Gregory, Doyle, Calhoun & Rogers, Aric M. Kline, Randall C. Farmer, for appellants.
Reynolds, Horne & Survant, John C. Fleming, Reinhardt Whitley Summerlin & Pittman, John R. Reinhardt, Brannen, Searcy & Smith, A. Martin Kent, for appellees.
Doyle, Presiding Judge.
Isabel Martinez sued the Tift County School District and Marie Thompson, a school bus driver, seeking damages arising fro the death of her son when he was hit by a car while attempting to board [331 Ga.App. 424] a school bus. The District and Thompson appeal from the denial of their motion for summary judgment filed on sovereign immunity and official immunity grounds. Specifically, they contend that the trial court erred by ruling that (1) OCGA § 33-24-51 expressly provides for a waiver of sovereign immunity based on the purchase of motor vehicle insurance; (2) the District and Thompson waived sovereign and official immunity by stipulation; and (3) certain arguments about the scope of the waiver were moot because they were not presented prior to entry of the pre-trial order. For the reasons that follow, we affirm.
On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
So viewed, the record shows that one morning in May 2010, Jonathan Martinez waited at his assigned roadside location to board the school bus that customarily took him to school. The speed limit on the road is 55 miles per hour, and visibility was reduced by heavy fog that morning. Thompson was driving the school bus, and after she stopped the bus at the customary location and activated the warning signals, Jonathan attempted to cross the street to board the bus. As he crossed, he was struck by an oncoming vehicle that failed to yield for the stopped school bus.
Isabel Martinez filed suit against the District, Thompson, and the driver who struck Jonathan, alleging various claims for negligence. As to the District and Thompson, Martinez alleged that they failed to follow certain policies, properly instruct students, exercise due care, and exhibit due regard for the safety of others. As to the District only, Martinez alleged claims for negligent hiring, retention, entrustment, and evaluation of Thompson.
The defendants answered, and in December 2013, Thompson moved for summary judgment on official immunity grounds. In January 2014, the parties entered into a stipulation, filed with the court, stating that Thompson, as a public employee, was immune from personal liability for " performing a discretionary function in the scope of her employment and acting without actual malice. This [331 Ga.App. 425] Immunity applies to any act involving the monitoring, supervising[,] and controlling of students while operating a school bus." The stipulation went on to state:
However, because the school bus, which she was operating, was owned and insured by the Tift County School District, then the presence of this liability insurance will operate as a waiver by Marie Thompson['s] Official Immunity to the extent of the insurance coverage when she is sued in her official capacity.
The stipulation further stated that the District held a commercial automobile liability policy with a $1 million limit, and the District's sovereign immunity was waived to ...