(Code 1933, § 95A-305, enacted by Ga. L. 1973, p. 947, § 1.)
Law reviews.- For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For article surveying developments in Georgia torts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 247 (1981).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 95-1505, 95-1710, and 95-1712, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.
County's immunity from liability not waived.
- This section specifically limits responsibility to those damages awarded against any county "under existing laws" and is not a waiver of the county's immunity from liability. Williams v. Georgia Power Co., 233 Ga. 517, 212 S.E.2d 348 (1975).
No sovereign immunity from inverse condemnation action.
- O.C.G.A. § 32-2-6 applies only to actions when sovereign immunity exists and must be statutorily waived. No sovereign immunity exists when a cause of action for inverse condemnation lies because the Constitution itself affords the right. Powell v. Ledbetter Bros., 251 Ga. 649, 307 S.E.2d 663 (1983), overruled in part on other grounds, David Allen Co. v. Benton, 260 Ga. 557, 398 S.E.2d 191 (1990).
Cited in Evans County v. McDonald, 133 Ga. App. 955, 213 S.E.2d 82 (1975); Counihan v. Department of Transp., 162 Ga. App. 374, 290 S.E.2d 514 (1982).
Joint State-County Suits
County need not be plaintiff in suit by board.
- When the State Highway Board (now State Transportation Board) brings an action for declaratory judgment there is no statute which requires that the county where the subject matter of the suit is located be named a party plaintiff in the case. Woodside v. State Hwy. Dep't, 216 Ga. 254, 115 S.E.2d 560 (1960) (decided under former Code 1933, § 95-1710).
County could "vouch" in the Department of Transportation in an action brought against the county for personal injuries and wrongful death arising out of a collision at a highway intersection. DOT v. Land, 181 Ga. App. 94, 351 S.E.2d 470 (1986), aff'd except as to that part of the opinion affirming the trial court's dismissal of the Department of Transportation as a named party, 257 Ga. 657, 362 S.E.2d 372 (1987), and vacated insofar as it is inconsistent, 185 Ga. App. 630, 366 S.E.2d 242 (1988).
County not proper party when suit lies against Department of Transportation.
- O.C.G.A. § 32-2-6 does not make the county in which roads and bridges are located a proper and necessary party by operation of law when suit lies against the Department of Transportation. The section requires suit be brought against the county and the Department of Transportation shall defend, not vice versa. Powell v. Ledbetter Bros., 251 Ga. 649, 307 S.E.2d 663 (1983), overruled in part on other grounds, David Allen Co. v. Benton, 260 Ga. 557, 398 S.E.2d 191 (1990).
State Liability
Department defends suits originating on state highways.
- State Highway Department (now Department of Transportation) shall defend all suits and be responsible for all damages awarded against any county whenever the cause of action originates on highways, jurisdiction over which has been assumed by the department under the terms of the law. Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946) (decided under former Code 1933, § 95-1710).
Department defends suits after highway has been opened.
- Language of this section is confined to suits brought against the county for causes of action originating on highways, placing ultimate liability upon the Department of Transportation which is to be made a defendant in such actions, and prohibiting the bringing of such actions until the highway is opened to traffic by the department. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967) (decided under former Code 1933, §§ 95-1710, 95-1712).
Department defends suits even when plaintiff sold land before highway opened.
- While the authority of the property owner to institute a suit against a county for damages to property arising from construction of a state-aid road by the Highway Department (now Department of Transportation) is restricted until the state-aid road involved is completed and opened to traffic; the fact that the property owner has divested oneself of title to the property allegedly damaged before the state-aid road involved had been formally opened to traffic and the cause of action had thereby accrued does not defeat the owner's cause of action. Dougherty County v. Pylant, 104 Ga. App. 468, 122 S.E.2d 117 (1961) (decided under former Code 1933, § 95-1712).
Department as defendant in claim against its insured employees.
- When a claim is covered to the extent of insurance provided to employees of the Department of Transportation (DOT), and the employees are named as defendants in the complaint, it is proper to name DOT as a party defendant, even though DOT carries no liability insurance as to such actions. DOT v. Land, 257 Ga. 657, 362 S.E.2d 372 (1987).
Limits on State Liability
Department's acts are acts of the State of Georgia, and the state, in the construction and maintenance of highways through the Department of Transportation, performs a governmental function. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, §§ 95-1505, 95-1710).
Department cannot be sued 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, §§ 95-1505, 95-1710).
Department may sue or be sued for only limited purposes.
- Highway Department (now Department of Transportation) has no powers and no functions except those expressly authorized by the state; although the Department of Transportation is authorized by the state to sue and to be sued, 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, §§ 95-1505, 95-1710).
Negligent severance of building and negligent relocation of trunk sewer.
- State Highway Department (now Department of Transportation) may be sued for the negligent severance of a building and the negligent relocation of a trunk sewer for the purpose of clearing a right of way for the construction of a state-aid road, which is sufficient to show a cause of action which originates on a highway. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967) (decided under former Code 1933, §§ 95-1710, 95-1712).
Remedies for damages off highway not actions against department.
- Procedure for bringing an action against the Department of Transportation is inapplicable to a case where the injury does not originate on a highway; if there has been an independent taking of private property for public use, the injured party is relegated either to the remedy of injunction or mandamus, when such a remedy is appropriate, or else to an action at law. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).
Exception for employee suing department for workers' compensation.
- Employee of the Department of Transportation may bring an action directly against the department under the Workers' Compensation Act for an injury arising out of and during the course of employment; this is the sole exception under which the legislature has granted authority for the department to be sued other than the method provided for in statute. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, §§ 95-1505, 95-1710).
County Liability
No waiver of immunity.
- County was not liable because the county had no liability insurance and thus retained the county's sovereign immunity; under O.C.G.A. § 32-2-6, there was nothing which the DOT must have defended or for which DOT must have been responsible for on behalf of the county. DOT v. Price, 208 Ga. App. 320, 430 S.E.2d 602 (1993).
Department of Transportation's waiver of DOT's own immunity by the purchase of liability insurance for employees could not have created a "total" or "partial waiver" of the county's immunity. DOT v. Price, 208 Ga. App. 320, 430 S.E.2d 602 (1993).
No liability for county.
- When there is no liability for the county, the mechanism for holding the DOT responsible for damages under O.C.G.A. § 32-2-6 does not create such liability. Christian v. Monroe County, 203 Ga. App. 342, 417 S.E.2d 37 (1992).
Damage off highway.
- When the department takes rock from land not on a highway, and uses the rock in the construction of a road, the owner's cause of action does not originate on a highway, and the owner's remedy is an action against the board in the county of the residence of a member at the time the suit is brought. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).
Liability of Other Parties
Section not applicable to other defendants.
- Provisions of this section do not include common-law tort actions against parties other than a county and the Department of Transportation simply because the alleged negligent act "originated on a highway." Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967) (decided under former Code 1933, §§ 95-1710, 95-1712).
Actions against contractors.
- Proceeding against a private contractor although based upon a cause of action "originating on a highway" could be maintained without adherence to the provisions of this section. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967) (decided under former Code 1933, §§ 95-1710, 95-1712).
Section on necessary parties not applicable to declaratory judgments.
- When the suit was for a declaratory judgment and was not brought under former Code 1933, § 95-1710, a provision of that statute relating to necessary parties was inapplicable to the case made by the petition. Woodside v. State Hwy. Dep't, 216 Ga. 254, 115 S.E.2d 560 (1960) (decided under former Code 1933, § 95-1710).
RESEARCH REFERENCES
ALR.
- Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from design, construction, or failure to warn of narrow bridge, 2 A.L.R.4th 635.