(Ga. L. 1919, p. 242, art. 6, § 3; Ga. L. 1925, p. 208, § 4; Code 1933, § 95-1505; Code 1933, § 95A-304, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 10.)
Law reviews.- For article surveying contracts - legislation, see 34 Mercer L. Rev. 71 (1982). For note analyzing sovereign immunity in this state and proposing implementation of a waiver scheme and creation of a court of claims, pursuant to the Georgia Constitution, see 27 Emory L.J. 717 (1978).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- See Andrews v. Department of Transp., 133 Ga. App. 78, 210 S.E.2d 30 (1974).
Editor's notes.- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 95-1701, 95-1709, 95-1710, and 95-1720, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.
Cited in Habersham County v. Cornwall, 38 Ga. App. 419, 144 S.E. 55 (1928); Counihan v. Department of Transp., 162 Ga. App. 374, 290 S.E.2d 514 (1982); Medical Ctr. Hosp. Auth. v. Andrews, 162 Ga. App. 687, 292 S.E.2d 197 (1982); Donaldson v. DOT, 262 Ga. 49, 414 S.E.2d 638 (1992); Georgia DOT v. Smith, 210 Ga. App. 741, 437 S.E.2d 811 (1993).
Actions Against Department
Section does not waive department's immunity.
- Only under certain limited and previously recognized circumstances may suits be maintained against the Department of Transportation; there was no intent by the General Assembly to waive immunity and permit suits for torts against the department. Andrews v. Department of Transp., 133 Ga. App. 78, 210 S.E.2d 30 (1974).
Department of Transportation of the State of Georgia may rely on the defense of sovereign immunity in suits seeking to recover damages for breach of contract. National Distrib. Co. v. Department of Transp., 248 Ga. 451, 283 S.E.2d 470 (1981).
There was no intent by the General Assembly in enacting subsection (a) of O.C.G.A. § 32-2-5 to waive immunity and permit suits for torts against the Department of Transportation. Huggins v. Georgia Dep't of Transp., 165 Ga. App. 178, 300 S.E.2d 195 (1983).
Suit is permissible in several situations.
- Suit can be maintained against the State Highway Department (now Department of Transportation) for breach of contract and for recovery of just compensation if private property is taken or damaged for public purposes. Andrews v. Department of Transp., 133 Ga. App. 78, 210 S.E.2d 30 (1974).
Sovereign immunity of the Department of Transportation is pierced by the constitutional right insofar as required by Ga. Const. 1976, Art. I, Sec. III, Para. I (see Ga. Const. 1983, Art. I, Sec. III, Para. I); but no support exists for the argument that a waiver of sovereign immunity exists for an ex contractu action against the Department of Transportation which is not predicated upon Ga. Const. 1976, Art. I, Sec. III, Para. I (see Ga. Const. 1983, Art. I, Sec. III, Para. I). National Distrib. Co. v. Department of Transp., 157 Ga. App. 789, 278 S.E.2d 648, aff'd, 248 Ga. 451, 283 S.E.2d 470 (1981).
Personal service by authorized person required.
- Language in O.C.G.A. § 32-2-5 authorizing service "by leaving a copy [of process] in the office of the commissioner" contemplates that service may be accomplished by personally serving a person in the Department of Transportation building who is authorized or otherwise qualified to receive service; such service must be made by an authorized person, and employing a private delivery service to deliver a package containing the summons and complaint failed to accomplish the required personal service. DOT v. Marks, 219 Ga. App. 738, 466 S.E.2d 273 (1995).
Effect of motor vehicle liability insurance.
- Department of Transportation, as a state agency, does not come within the ambit of O.C.G.A. § 33-24-51(b), which provides for waiver of governmental immunity to the extent of the amount of motor vehicle liability insurance purchased by "a municipal corporation, a county, or any other political subdivision of this state . . .." Huggins v. Georgia Dep't of Transp., 165 Ga. App. 178, 300 S.E.2d 195 (1983).
Not all actions ex contractu are authorized.
- Fact that an action ex contractu is a correct procedural form by which to assert a constitutionally authorized action against the Department of Transportation does not permit an inference that all actions ex contractu are thus authorized. National Distrib. Co. v. Department of Transp., 157 Ga. App. 789, 278 S.E.2d 648, aff'd, 248 Ga. 451, 283 S.E.2d 470 (1981).
Who may sue and be sued in permitted actions.
- Department of Transportation, consisting of the State Transportation Board, the commissioner of transportation, the deputy commissioner of transportation, the state highway engineer, the treasurer and the assistant treasurer of transportation, and such subordinate employees as may be deemed necessary by the commissioner, may sue and be sued in such actions as are permitted by law. National Distrib. Co. v. Department of Transp., 157 Ga. App. 789, 278 S.E.2d 648, aff'd, 248 Ga. 451, 283 S.E.2d 470 (1981).
State department as joint tortfeasor.
- State department or agency can be considered a joint tortfeasor with other resident defendants for venue purposes. Gault v. National Union Fire Ins. Co., 208 Ga. App. 134, 430 S.E.2d 63 (1993).
Venue against an employee of the DOT may be had in a county only if the employee is an alleged joint tortfeasor with a defendant resident in that county. Gault v. National Union Fire Ins. Co., 208 Ga. App. 134, 430 S.E.2d 63 (1993).
Section is venue statute only.
- An action wherein grantors sought to recover against the Department of Transportation for alleged breach of conditions contained in an agreement delineated a "Soil Easement" could not be maintained under the authority of O.C.G.A. § 32-2-5 which is a venue statute only. National Distrib. Co. v. Department of Transp., 157 Ga. App. 789, 278 S.E.2d 648, aff'd, 248 Ga. 451, 283 S.E.2d 470 (1981).
Special venue statutes cumulative of other venue statutes.
- It appears that there is no authority that special venue statutes are exclusive and the inference in the cases is that the special venue statutes are cumulative of other venue statutes. Jahncke Serv., Inc. v. Department of Transp., 134 Ga. App. 106, 213 S.E.2d 150 (1975).
Venue of action against department and joint tortfeasor.
- In an action by a landowner against the Department of Transportation (DOT) and a corporation for abatement of a nuisance, the county in which the cause of action against DOT arose was the residence of DOT for purposes of the action; this allowed the corporation, as a resident joint tortfeasor, to be joined, even though the corporation resided in a separate county. C.W. Matthews Contracting Co. v. Barnett, 219 Ga. App. 763, 466 S.E.2d 657 (1996).
State's Capacity to Sue
Authority to sue.
- State has complete power over the state's internal highway system, including bridges, and in the state's corporate capacity as sovereign may sue for any injury or interference with the state's highway system. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946) (decided under former Code 1933, §§ 95-1701, 95-1709, 95-1720).
Legislative intent to let Department of Transportation protect state's interests.
- General Assembly intended to confer upon the State Highway Department (now Department of Transportation), as one of the state's public agencies, not only the duty of constructing, maintaining, and repairing the highways and bridges of the state-aid system of roads, but also to confer on the Highway Department (now Department of Transportation) the right to protect the state's interest in matters growing out of the maintenance of the state's state-aid system of roads. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946) (decided under former Code 1933, §§ 95-1701, 95-1709, 95-1720).
Legislative intent illustrated by giving Department of Transportation right to sue.
- State has delegated the right to sue to the State Highway Department (now Department of Transportation), which is financially responsible for the state-aid road system. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946) (decided under former Code 1933, §§ 95-1701, 95-1709, 95-1720).
Department as bailee for damaged bridge.
- State Highway Department (now Department of Transportation) was holding a bridge, as part of the state-aid system of roads under the department's jurisdiction, in trust for the use of the public and with the duty to replace the bridge; and, in this capacity considered as a bailee, the department may bring an action for the allegedly negligent destruction of the bridge. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946) (decided under former Code 1933, §§ 95-1701, 95-1709, 95-1720).
Use of damages to restore destroyed bridge.
- Logical disposition of any money recovered in an action for the destruction of a bridge on a public highway which is to continue in use would be to use the money for the purpose of restoring the destroyed bridge, or where the bridge has already been rebuilt, to use the money to replace, as nearly as possible, those funds which the Highway Department (now Department of Transportation) expended in restoring the bridge. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946) (decided under former Code 1933, §§ 95-1701, 95-1709, 95-1720).
State's Liability to Suit
Effect of department's acts.
- Acts of Department of Transportation are the acts of the State of Georgia and the state performs a governmental function when the state constructs and maintains highways through the Department of Transportation. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).
Extent of Department's powers.
- State Highway Department (now Department of Transportation) has no power and no function except those expressly authorized by the state. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).
Department not suable without state consent.
- Department of Transportation is a part of the sovereign state, an agent or servant of the state, and the department cannot be sued without the express consent of the sovereign. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).
State consent given only in limited situations.
- Department of Transportation is authorized by the state to sue and to be sued, but the power to sue and to be sued in the case of the department is only for special purposes. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).
Situations in which county originally liable.
- This section refers to claims for damages against a county which must have originated under laws existing when the highway is taken over as a state-aid road by the State Highway Department (now Department of Transportation), and when the department "ultimately may be liable," not primarily liable. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285, answer conformed to, 50 Ga. App. 520, 179 S.E. 167 (1935) (decided under former Code 1933, § 95-1710).
No consent for suits for personal injuries.
- Right to "make settlement of all claims presented to it under oath," certainly does not include the right to sue the State Highway Department (now Department of Transportation) for damages for personal injuries due to negligence of the department's engineers, but refers to such matters as are expressly provided in statute. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285, answer conformed to, 50 Ga. App. 520, 179 S.E. 167 (1935) (decided under former Code 1933, § 95-1710).
Consent for suits for personal injuries given where employee sues for workers' compensation.
- An employee of the Department of Transportation has a right to bring an action directly against the department under the workers' compensation law for compensation for an injury arising out of and during the course of employment by the department. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former law are included in the annotations of this Code section.
Necessity for retaining highway project file for 20-year period.- It is necessary to retain an entire highway project file for a 20-year period; retaining the release, final voucher, and contract for this period will not adequately protect the state's interest in compliance with state law because highway construction contracts are sealed contracts and are therefore subject to a 20-year statute of limitations. 1973 Op. Att'y Gen. No. 73-89 (decided under former law).
RESEARCH REFERENCES
ALR.
- Right of private citizen to complain of re-routing of highway or removal or change of route or directional signs, 97 A.L.R. 192.
Liability and suability, in negligence action, of state highway, toll road, or turnpike authority, 62 A.L.R.2d 1222.
Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from ice or snow on surface of highway or street, 97 A.L.R.3d 11.
Measure and elements of damages for injury to bridge, 31 A.L.R.5th 171.