450 S.E.2d 318
A94A1232.Court of Appeals of Georgia.
DECIDED NOVEMBER 21, 1994.
RUFFIN, Judge.
This appeal arises from the denial of Randolph County Hospital Authority’s (“hospital authority”) motion for summary judgment based on sovereign immunity in a wrongful death action. The trial court held that Art. I, Sec. II, Par. IX of the 1983 Constitution of Georgia does not extend sovereign immunity to a hospital authority because the phrase “the state and all of its departments and agencies,” contained in that provision, does not include state, county, or city authorities; and the contrary decision of this court in Hosp. Auth. of Fulton County v. Litterilla, 199 Ga. App. 345 (404 S.E.2d 796) (1991), conflicts with the holdings of the Supreme Court in McLucas v. State Bridge Bldg. Auth., 210 Ga. 1, 6 (77 S.E.2d 531) (1953) and Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39, 45
(273 S.E.2d 841) (1981).
On February 2, 1994, this court granted the hospital authority’s application for interlocutory appeal to consider whether the trial court’s judgment conflicted with prior decisions of this court. This appeal was docketed on February 24, 1994. The sole enumeration of error on appeal is that the trial court erred in finding as a matter of law that the hospital authority was not entitled to sovereign immunity under the Georgia Constitution. Four days following the docketing of the appeal, the Supreme Court issued its decision in Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (1) (440 S.E.2d 195) (1994), addressing the conflicts created by Litterilla.
Thomas established “that a hospital authority is not only not the state or a part of the state, it is also not the county or a part of the county. In reaching its determination that a hospital authority is entitled to the protection of sovereign immunity, the Court of Appeals in Litterilla relied on the language of OCGA § 31-7-75 which characterizes the activities of a hospital authority as `essential governmental functions,’ but such reliance is misplaced. Since a hospital authority, though an instrumentality of government, is not, in any sense, an agency or department of the state, the nature of its function is irrelevant; it is not, by the language of the statute, entitled to the protection of sovereign immunity.” Thomas, supra at 42. Accordingly, Thomas is controlling and the denial of the hospital authority’s motion for summary judgment was not erroneous.
Judgment affirmed. Birdsong, P. J., and Blackburn, J., concur.
Page 284
DECIDED NOVEMBER 21, 1994.
Wrongful death. Randolph Superior Court. Before Judge Stone.
Bowles Bowles, Jesse G. Bowles III, for appellant.
Andrew Scherffius III, Hatcher, Stubbs, Land, Hollis Rothschild, Robert C. Martin, Jr., Langley Lee, C. Richard Langley, Watson, Spence, Lowe Chambless, Thomas S. Chambless, Tisinger, Tisinger, Vance Greer, Kevin B. Buice, for appellee.