NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: June 24, 2025
S24G1346. GUY v. HOUSING AUTHORITY OF THE CITY OF
AUGUSTA.
PETERSON, Chief Justice.
This case presents the question of whether a local housing
authority whose existence is authorized by state statute but
activated by city government is protected from a personal injury suit
by sovereign immunity. The trial court granted summary judgment
to that housing authority in this personal injury suit, concluding
that the authority is protected by sovereign immunity as an
instrumentality of the State, as a “municipal corporation,” and as an
“instrumentality” of a municipality. The Court of Appeals agreed
with the trial court that the authority had sovereign immunity as
an “instrumentality” of a municipality, based on case law about
whether an entity is an instrumentality of the State for purposes of
sovereign immunity. But the case law about instrumentalities of the
State cannot answer whether a city housing authority has immunity
flowing from its relationship to a municipality, because that case law
is based on a construction of a provision of the Georgia Constitution
that extends sovereign immunity to all of the State’s departments
and agencies, and our precedent makes clear that municipalities are
not departments or agencies of the State. As explained below, the
question of whether an entity is protected by sovereign immunity as
an “instrumentality” of a municipality is a question that can be
answered only by reviewing the common law scope and nature of
sovereign immunity as it applied to instrumentalities of
municipalities. Neither the trial court nor the Court of Appeals has
done that analysis yet, such that it would be imprudent for this
Court to reach out and decide that question ourselves in the first
instance based on the briefing before us. We therefore vacate the
Court of Appeals’s opinion and remand for further consideration of
the housing authority’s immunity as an instrumentality of a
municipality under the proper analytical approach.
2
The General Assembly in 1937 passed the Housing Authorities
Law, OCGA § 8-3-1 et seq. (“the Act”), declaring that “[i]n each city
and in each county of the state there is created a public body
corporate and politic to be known as the ‘housing authority’ of the
city or county[,]” with the caveat that any “such authority shall not
transact any business or exercise its powers” until the governing
body of the relevant city or county declared a local need for such an
authority. OCGA § 8-3-4. Upon such a declaration by the governing
body of a city or county, commissioners comprising the authority are
appointed by the mayor or county governing body, respectively. See
OCGA § 8-3-50. The legislature found that the Act was necessary in
order to allow “public money [to] be spent and private property
acquired” so as to provide housing to low-income persons. OCGA §
8-3-2. In accordance with the Act, the Housing Authority of the city
of Augusta (“the Authority”) was activated by the mayor and city
council of the city of Augusta by a resolution adopted in 1937.
Christina Guy filed this premises liability action in 2022,
alleging that she was shot in the leg when assailants attempted to
3
rob her in front of her apartment unit. She named the Authority as
the sole defendant, alleging that the Authority owned and managed
her apartment complex and that it negligently failed to take
appropriate measures for the safety and security of the complex’s
residents. The Authority moved for summary judgment, arguing
that the complaint should be dismissed for lack of subject matter
jurisdiction because sovereign immunity bars Guy’s claims. The
trial court granted the motion, concluding that because the
Authority “is a municipal corporation, an instrumentality of the
State of Georgia and an instrumentality of the City of Augusta,
Georgia, it has protection from tort claims by sovereign immunity.”
The trial court also concluded that sovereign immunity had not been
waived.
The Court of Appeals affirmed, concluding that the Authority
was entitled to sovereign immunity. See Guy v. Housing Auth. of the
City of Augusta, 372 Ga. App. 325 (904 SE2d 375) (2024). In reaching
this conclusion, the Court of Appeals cited Article IX, Section II,
Paragraph IX of the Georgia Constitution (“The General Assembly
4
may waive the immunity of counties, municipalities, and school
districts by law.”) and OCGA § 36-33-1 (a) (“[T]he General Assembly,
except as provided in this Code section and in Chapter 92 of this
title, declares it is the public policy of the State of Georgia that there
is no waiver of the sovereign immunity of municipal corporations of
the state and such municipal corporations shall be immune from
liability for damages.”) for the proposition that “municipal
corporations remain immune from suit under the present
constitutional and statutory framework except to the extent that
sovereign immunity has been waived by the General Assembly.”
Guy, 372 Ga. App. at 327 (footnote omitted). The Court of Appeals
concluded based on its own precedent that “sovereign immunity
extends, as it did at common law, to instrumentalities of a municipal
corporation.” Id. (citing Hosp. Auth. of Fulton County v. Litterilla,
199 Ga. App. 345, 346-347 (1) (404 SE2d 796) (1991), reversed by
262 Ga. 34 (413 SE2d 718) (1992)). The Court of Appeals then
proceeded to apply our case law construing the constitutional grant
of sovereign immunity to the State and its departments and agencies
5
to determine that “the Authority is an instrumentality of the City
such that it is entitled to sovereign immunity.” Guy, 372 Ga. App. at
327-330 (2) (citing Kyle v. Ga. Lottery Corp., 290 Ga. 87, 91 (1) (718
SE2d 801) (2011); Youngblood v. Gwinnett Rockdale Newton
Community Svc. Bd., 273 Ga. 715, 716 (1) (545 SE2d 875) (2001);
Miller v. Ga. Ports Auth., 266 Ga. 586, 587-589 (470 SE2d 426)
(1996)). The Court of Appeals considered the language of the Act and
the purposes for which the Authority was created, saying that “the
Authority is a public corporation using public funds to perform for
the City what the General Assembly has deemed to be an essential
public and governmental purpose.” Guy, 372 Ga. App. at 328-329 (2).
The panel acknowledged that in recent decisions the Court of
Appeals had rejected particular housing authorities’ claims of
sovereign immunity as an instrumentality of the State. Id. at 328
n.7 (citing Files v. Housing Auth. of the City of Douglas, 368 Ga. App.
455, 465 (1) (890 SE2d 356) (2023); Pass v. Athens Housing Auth.,
368 Ga. App. 445, 454 (1) (890 SE2d 342) (2023)). But, given its
conclusion that the Authority was an instrumentality of the City,
6
the panel said that it did not need to consider the trial court’s
alternative bases for its ruling, i.e., that the Authority was entitled
to sovereign immunity as a municipal corporation or an
instrumentality of the State of Georgia. See Guy, 372 Ga. App. at
328 n.7.1
Guy filed a petition for a writ of certiorari, which we granted.
In granting her petition, we posed the question of whether the
Housing Authority is “entitled to sovereign immunity[.]”
Article I, Section II, Paragraph IX of the Georgia Constitution
contains an explicit conferral of immunity: “Except as specifically
provided in this Paragraph, sovereign immunity extends to the state
and all of its departments and agencies.” Ga. Const. of 1983, Art. I,
Sec. II, Par. IX (e). We have said that municipalities enjoy immunity
“akin” to the immunity afforded to the State and that
1 The Court of Appeals observed that Guy did not “meaningfully
challenge” the trial court’s conclusion that there was no waiver of sovereign
immunity. Guy, 372 Ga. App. at 326 n.2. The court also stated that “Guy does
not assert liability as to the Authority on the basis that it was negligent in
performing ministerial duties” under OCGA § 36-33-1 (b). Id. at 327 n.6.
Neither of those questions is before us.
7
“municipalities enjoy[] the same immunity as the State in their
performance of acts which are legislative or judicial in nature, on
the ground that such acts are deemed to be but the exercise of a part
of the state’s power.” Gatto v. City of Statesboro, 312 Ga. 164, 166 (1)
(860 SE2d 713) (2021) (citation and punctuation omitted). 2 But we
also have squarely held that the sovereign immunity provided for in
Article I, Section II, Paragraph IX does not apply to municipalities.
See id. at 166 (1) n.3 (citing City of Thomaston v. Bridges, 264 Ga. 4,
7 (499 SE2d 906) (1994)). Rather, we have pointed to Article IX,
Section II, Paragraph IX as “recognizing” the immunity of
municipalities, stating that, “[t]hough originating in the common
law, the doctrine of municipal immunity now enjoys constitutional
status.” Gatto, 312 Ga. at 166 (1). And we have said that OCGA §
36-33-1 (a), a provision cited by the Court of Appeals here,
“reiterates” that municipal corporations are protected by sovereign
immunity. See City of Atlanta v. Mitcham, 296 Ga. 576, 577 (1) (769
2 We sometimes refer to the sovereign immunity of municipalities as
“municipal immunity” or “governmental immunity.” See Gatto, 312 Ga. at 164
n.1.
8
SE2d 320) (2015); see also Atlantic Specialty Ins. Co. v. City of
College Park, 313 Ga. 294, 299 (2) (869 SE2d 492) (2022); Gatto, 312
Ga. at 166 (1). Our case law thus makes clear that sovereign
immunity extends to municipalities themselves. See Atlantic
Specialty Ins. Co., 313 Ga. at 299 (2); Gatto, 312 Ga. at 166 (1).
But Article IX’s reference to “the immunity of . . .
municipalities” does not extend that immunity any further. Unlike
Article I’s immunity provision, which includes the affirmative
“sovereign immunity extends to [the State’s] departments and
agencies” language, the Article IX provision does not explicitly
extend any immunity, but, rather, provides only for the waiver of
immunity. The Article IX municipal immunity provision is only one
sentence: “The General Assembly may waive the immunity of
counties, municipalities, and school districts by law.” Ga. Const. of
1983, Art. IX, Sec. II, Par. IX. Thus, the Georgia Constitution does
not actually confer any sovereign immunity beyond the immunity
conferred in Article I on “the state and all of its departments and
agencies.” See R. Perry Sentell, Jr., Local Government Tort Liability:
9
The Summer of ’92, 9 Ga. St. U. L. Rev. 405, 408 (1993) (“For
‘counties, municipalities, and school districts,’ Article IX . . .
assumed existence of their immunity and restricted to ‘the General
Assembly’ the power of waiving that immunity ‘by law.’”). In other
words, all the Article IX provision does for municipalities is preserve
whatever sovereign immunity existed for them at common law and
make clear that the General Assembly may waive it. The Article IX
sovereign immunity provision also does not include language
equivalent to the “departments and agencies” language found in
Article I.
OCGA § 36-33-1 (a) contains language that sounds more like
an extension of immunity: “[M]unicipal corporations shall be
immune from liability for damages.” But it also contains no language
similar to the “departments and agencies” language of the Article I
sovereign immunity provision. Any sovereign immunity for
“departments and agencies” or “instrumentalities” of a municipality
would be a product of the common law of England as of May 14, 1776,
which the General Assembly adopted in 1784. See Walmart Stores
10
E., LP v. Leverette, __ Ga. __, __ (II) Case No. S24G1104 (decided
June 24, 2025) (“The common law of England has long been the
‘backstop law’ of Georgia.”).
As noted above, the Court of Appeals concluded here based on
its own precedent that “sovereign immunity extends, as it did at
common law, to instrumentalities of a municipal corporation.” Guy,
372 Ga. App. at 327. The Court of Appeals then analyzed the
question of whether the Authority is an instrumentality of the city
of Augusta by applying our case law as to whether an entity is an
instrumentality of the State. See id at 327-330. But the case on
which the Court of Appeals relied for the proposition that sovereign
immunity extended at common law to “instrumentalities of a
municipal corporation,” Hospital Authority of Fulton County v.
Litterilla, does not stand for that proposition. The Court of Appeals’s
ruling in that case did not analyze whether “instrumentalities of a
municipal corporation” were protected by sovereign immunity at
common law, as the case instead involved a hospital authority
established by a county. See Hosp. Auth. of Fulton County, 199 Ga.
11
App. at 345-347 (1).3 And the case law of this Court on which the
Court of Appeals primarily relied to determine that the Authority
was an instrumentality of a city was all decided under Article I,
specifically relying on the “departments and agencies” language of
Article I’s sovereign immunity provision. See Kyle, 290 Ga. at 88-91
(1); Youngblood, 273 Ga. at 715-716 (1); Miller, 266 Ga. at 586-587.
As noted above, Article I’s sovereign immunity provision does not
apply to municipalities, and the Georgia Constitution does not
otherwise explicitly confer sovereign immunity on municipalities.
And neither Article IX’s reference to the immunity of municipalities
nor OCGA § 36-33-1 (a)’s recognition of immunity for “municipal
corporations” includes a reference to “departments and agencies” of
municipalities. So the case law on which the Court of Appeals relied
to conclude that the Authority is protected by sovereign immunity
3 Moreover, when we reviewed the Court of Appeals’s opinion in that case
on certiorari, we limited our review to the Court of Appeals’s waiver analysis,
and assumed only for purposes of the appeal that the hospital authority was
protected by sovereign immunity absent a waiver. See Litterilla, 262 Ga. at 35.
We also questioned that assumption, saying “there is arguable merit to the
position that hospital authorities are not entitled to assert sovereign
immunity[.]” Id. at n.1.
12
as an “instrumentality” of a city has no application here.
Whether an entity is covered by sovereign immunity as a
matter of common law must be answered by examining the common
law of England as of May 14, 1776. See Walmart Stores E., __ Ga. at
__ (II) (A) (1). It cannot be answered merely by examining just any
Georgia decisional law on sovereign immunity, although some such
decisional law may be useful to that process to the extent that it
examines the common law of England or otherwise reflects it. See,
e.g., State v. Cook, 317 Ga. 659, 663 (1) (893 SE2d 670) (2023)
(distinguishing between “common law” understanding of term
“peace officer” and how that understanding “is also reflected in
Georgia statutory and decisional law”); Crum v. Jackson Nat’l Life
Ins. Co., 315 Ga. 67, 75-76 (2) (c) (ii) (880 SE2d 205) (2022)
(distinguishing between “the body of common law from England that
our General Assembly adopted in the late eighteenth century” and
“a body of decisional law that interprets and applies” statutes that
since have been repealed).
Because of the framing of this question in the Court of Appeals,
13
the briefing on the issue of the Authority’s sovereign immunity
before this Court does not engage with the common law in a way
that aids our consideration of the question under the proper
analysis. 4 And because no court has yet performed an analysis of the
4 The Authority in its briefing to this Court alludes to the idea that
Article IX, Section II, Paragraph IX is merely a waiver provision, and it
purports to analyze whether it is cloaked in immunity as a matter of common
law, positing that “all levels of government,” including municipalities, are
protected by sovereign immunity, including “instrumentalities” of government
when performing certain functions. But the premise that “all levels” of
government, including cities, have sovereign immunity begs the question of
whether the Authority enjoys that immunity. And although the Authority
acknowledges that “governmental immunity” in Georgia is a continuation of
English common law, and although the Authority discusses case law from
Georgia and other states “also deriving from English common law,” it does not
examine the question of whether a municipal authority (or its common law
equivalent) was protected by sovereign immunity under English common law
as it existed in 1776.
The Authority suggests that our decision in Knowles v. Housing
Authority of City of Columbus, 212 Ga. 729 (95 SE2d 659) (1956), supports a
conclusion that the Authority has immunity here, on the notion that Knowles
started from the premise that the Authority has immunity before proceeding
to a waiver analysis based on the sue-and-be sued language of the authorizing
legislation. But although this Court in that case referenced lower court
conclusions that the housing authority in that case was “an instrumentality of
the State which performs governmental functions, and is therefore immune
from tort actions[,]” the Court’s analysis focused exclusively on the waiver
question. Id. at 730 (“The controlling question in this case is the effect of the
‘sue and be sued’ clause in our housing act.”). Thus, Knowles does not stand for
the proposition that municipal housing authorities are protected by sovereign
immunity, either as instrumentalities of the State or because of their
relationship with a municipality. See Palmer v. State, 282 Ga. 466, 468 (651
SE2d 86) (2007) (“[D]ecisions of this Court do not stand for points that were
14
common law for us to review, and because it would be imprudent to
reach out and decide that question ourselves in the first instance
based on the briefing before us, we vacate the Court of Appeals’s
judgment and remand this case for consideration of the issue of the
Authority’s immunity under the proper analytical approach.5 See
Clayton County v. City of College Park, 301 Ga. 653 (803 SE2d 63)
(2017) (vacating trial court’s judgment and remanding case for
consideration of “complex and important” sovereign immunity
question that had not been addressed by the lower court or
adequately briefed by the parties).6
neither raised by the parties nor actually decided in the resulting opinion,” and
“questions which merely lurk in the record, neither brought to the attention of
the court nor ruled upon, are not to be considered as having been so decided as
to constitute precedents.” (citation and punctuation omitted)). Incidentally, we
note that we subsequently have overruled Knowles’s holding that statutory
language giving an entity the power “to sue and be sued,” now found at OCGA
§ 8-3-30 (a) (1) in the Housing Authorities Law, amounts to a waiver of
sovereign immunity. See Self v. City of Atlanta, 259 Ga. 78, 80 (1) (377 SE2d
674) (1989).
5 Another question that may be at issue on remand is whether the fact
that Augusta and Richmond County are now a consolidated government is
relevant to the sovereign immunity analysis, given that our precedent makes
clear that counties enjoy the sovereign immunity conferred by Article I, while
cities do not.
6 On remand, the Court of Appeals will have the discretion to decide
whether to answer the question itself or to remand for the trial court to first
15
Judgment vacated, and case remanded. Warren, PJ, and
Bethel, Ellington, McMillian, LaGrua, Colvin, and Pinson, JJ,
concur.
address the issue. The Court of Appeals did not consider the other bases for
immunity for the Authority identified by the trial court — as an
instrumentality or the State, or as a municipal corporation — and thus we do
not consider those here, either.
16