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Merrow v. Hawkins

Supreme Court of Georgia
Mar 11, 1996
266 Ga. 390 (Ga. 1996)

Summary

holding that, for purposes of official immunity, actual malice does not include even acts taken with reckless disregard for the rights of others

Summary of this case from Davis v. Lang

Opinion

S95A1973, S95A1974

DECIDED MARCH 11, 1996

Official immunity; actual malice; constitutional question. Camden Superior Court. Before Judge Long from Atlanta Circuit.

Whelchel, Brown, Readdick Bumgartner, Terry L. Readdick, Richard K. Strickland, for appellant.

J. Robert Morgan, for appellees.


We granted an interlocutory appeal in this case of first impression to construe the meaning of the term "actual malice" as it is used in the context of official immunity. We hold that in that context, "actual malice" requires a deliberate intention to do wrong.

See the 1991 amendment to Art. I, Sec. II, Par. IX, of the Constitution of the State of Georgia.

On June 15, 1991, Merrow, a jailer with the Camden County Sheriff's Department, gave Graham, an inmate and trusty at the Camden County Public Safety Complex, the keys to his car and asked Graham to wash it. Graham stole the car and escaped from the complex. Thereafter, Graham was involved in a collision with an automobile driven by Hawkins and occupied by Davis.

If an inmate was deemed trustworthy, he was permitted to perform such tasks for compensation.

Hawkins and Davis sued Merrow and others, seeking damages for negligent entrustment. Following discovery, Merrow moved for summary judgment, asserting he was entitled to official immunity because he had not acted with "actual malice or with actual intent to cause injury in the performance of [his] official functions." Art. I, Sec. II, Par. IX, of the Constitution of the State of Georgia. The trial court observed that Merrow did not act with ill will or actual intent to cause injury. However, relying on Sparks v. Thurmond, 171 Ga. App. 138, 140 ( 319 S.E.2d 46) (1984), a slander case in which "actual malice" was equated with reckless conduct, the trial court interpreted the words "actual malice" to include a "reckless disregard for the safety of others." Based on that interpretation, the trial court denied summary judgment to Merrow. We reverse.

1. The parties agree that Merrow was exercising a discretionary power when he gave the car keys to Graham. Thus, Merrow is entitled to official immunity unless he acted with "actual malice," as that term is used in the 1991 amendment to Art. I, Sec. II, Par. IX, of the Constitution of the State of Georgia.

Compare Mathis v. Nelson, 79 Ga. App. 639 ( 54 S.E.2d 710) (1949), with Price v. Owen, 67 Ga. App. 58 ( 19 S.E.2d 529) (1942). See also Nelson v. Spalding County, 249 Ga. 334, 336 ( 290 S.E.2d 915) (1982) (whether acts of public official are discretionary or ministerial depends upon facts of particular case).

2. The 1991 amendment to Art. I, Sec. II, Par. IX, of the Constitution of the State of Georgia reads, in part:

(d) Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the State or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.

(Emphasis supplied.)

While we recognize that our courts have defined "malice" as involving reckless disregard for the rights of others, see, e.g., Partain v. Maddox, 131 Ga. App. 778, 781(1) ( 206 S.E.2d 618) (1974), it is "actual malice," not mere "malice," that is addressed in the 1991 amendment to Art. I, Sec. II, Par. IX. We find the term "actual malice," as set forth in the 1991 amendment, to denote "express malice or malice in fact." Black's Law Dictionary, 6th ed. (1990). Express or actual malice, although not a term typically used in the context of civil litigation, see, e.g., OCGA § 51-7-2, is found in criminal law and has long been distinguished from "implied malice," a term which has been defined to mean conduct exhibiting a "reckless disregard for human life." See OCGA § 16-5-1; Bishop v. State, 257 Ga. 136, 138 ( 356 S.E.2d 503) (1987); Flynn v. State, 255 Ga. 415(2)(c) ( 339 S.E.2d 259) (1986).

Given that in interpreting the 1991 amendment this Court cannot, under well-established rules of constitutional construction, render superfluous the drafters' use of the modifier "actual," and given the long-recognized distinction between actual or express malice and implied malice, we conclude that the drafters intended the 1991 amendment to exclude any liability for injuries and damages if officers and employees act with implied malice in the performance of their official functions.

Hawkins and Davis cite Logue v. Wright, 260 Ga. 206(1) ( 392 S.E.2d 235) (1990), for the proposition that "immunity is for negligent acts, not for malicious acts, acts of corruption, wilful acts, or acts involving reckless disregard for the safety of others." That proposition, once "good law," cannot withstand scrutiny in light of the 1991 amendment to Art. I, Sec. II, Par. IX of our state Constitution. Sparks v. Thurmond, 171 Ga. App. 138, 140, supra, cited by the trial court, is equally inapplicable. Sparks relied upon the first amendment definition of "actual malice" set forth in New York Times Co. v. Sullivan, 376 U.S. 254 ( 84 S.C. 710, 11 L.Ed.2d 686) (1964). That definition, which is unique to constitutional libel law, is inapposite here. See Postill v. Booth Newspapers, Inc., 325 N.W.2d 511, 516 ( 118 Mich. App. 608) (1982) (in context of defamation action, "actual malice" is a term with "constitutional implications and varies from common-law malice"). See also Black's Law Dictionary, 6th ed. (1990), which recognizes that, in libel law, "actual malice" carries a different meaning.

Previously, our Constitution did not address the concept of official immunity, which had developed primarily through case law. See Gilbert v. Richardson, 264 Ga. 744, 752 ( 452 S.E.2d 476) (1994).

3. The record is devoid of any evidence demonstrating that Merrow acted with actual malice. It follows that the trial court erred in failing to grant his motion for summary judgment.

Judgment reversed. All the Justices concur.


DECIDED MARCH 11, 1996.


Summaries of

Merrow v. Hawkins

Supreme Court of Georgia
Mar 11, 1996
266 Ga. 390 (Ga. 1996)

holding that, for purposes of official immunity, actual malice does not include even acts taken with reckless disregard for the rights of others

Summary of this case from Davis v. Lang

holding that an officer "is entitled to official immunity unless he acted with actual malice."

Summary of this case from Garmley v. Cochran

holding that implied malice is insufficient to overcome official immunity defense

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holding that implied malice is reckless disregard as compared with actual malice which is an intent to do wrong

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abrogating cases decided prior to 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution defining "malice" as opposed to "actual malice" as involving reckless disregard for the rights of others

Summary of this case from Williams v. Fulton Cnty. Sch. Dist.

abrogating cases decided prior to 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution defining “malice” as opposed to “actual malice” as involving reckless disregard for the rights of others

Summary of this case from D.H. v. Clayton Cnty. Sch. Dist.

providing “[n]o educator shall be liable for any civil damages for, or arising out of, any act or omission concerning, relating to, or resulting from the discipline of any student or the reporting of any student for misconduct, except for acts or omissions of willful or wanton misconduct.”

Summary of this case from D.H. v. Clayton Cnty. Sch. Dist.

In Merrow v. Hawkins, 266 Ga. 390, 467 S.E.2d 336 (1996), the Georgia Supreme Court held that in the context of official immunity, "actual malice" requires a deliberate intention to do wrong.

Summary of this case from Jude v. Morrison

In Merrow, the court rejected the trial court's decision to interpret the words "actual malice" to include a "reckless disregard for the safety of others."

Summary of this case from Holland v. Gay

In Merrow v. Hawkins, 266 Ga. 390 (1996), the Georgia Supreme Court held that in the context of official immunity, "actual malice" requires a deliberate intention to do wrong.

Summary of this case from Carroll v. Henry County, Ga.

noting that official immunity "developed primarily through case law"

Summary of this case from Lathrop v. Deal

defining "actual malice" as the "deliberate intention to do wrong"

Summary of this case from Cameron v. Lang

In Merrow v. Hawkins, 266 Ga. 390 (467 S.E.2d 336) (1996), the trial court had denied summary judgment on the ground of official immunity because, while the defendant had not acted with ill will or actual intent to injure, there had been a showing of reckless disregard for the safety of others.

Summary of this case from Hazelwood v. Adams
Case details for

Merrow v. Hawkins

Case Details

Full title:MERROW v. HAWKINS ET AL. MERROW v. DAVIS ET AL

Court:Supreme Court of Georgia

Date published: Mar 11, 1996

Citations

266 Ga. 390 (Ga. 1996)
467 S.E.2d 336

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