Counihan v. Department of Transp. of Georgia
| Decision Date | 21 April 1982 |
| Docket Number | No. 63246,63246 |
| Parties | COUNIHAN v. DEPARTMENT OF TRANSPORTATION OF GEORGIA et al. |
| Court | Georgia Court of Appeals |
Joseph B. Bergen, John J. Sullivan, Savannah, for appellant.
Michael Bowers, Atty. Gen., Roland F. Matson, Asst. Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Marion O. Gordon, Sr. Asst. Atty. Gen., Atlanta, Fred S. Clark, Savannah, for appellee.
This is a wrongful death action filed by the temporary administrator of the estate of the deceased who was killed in Chatham County in a motor vehicle collision when decedent's automobile slid on ice and was struck by several other vehicles. The named defendants were the Department of Transportation of Georgia, Chatham County, i.e., Chatham County Commissioners, the administrator of Chatham County Public Works, individually and in that capacity, the Chatham County Administrator, individually and in that capacity, and the Chief of Chatham County Police, individually and in his capacity as chief of the county police. The deceased allegedly met her death as she approached the Bull River Bridge located on a highway within the County of Chatham, State of Georgia, when she lost control of her vehicle as the result of ice which the defendants had allegedly negligently allowed to accumulate on the bridge roadway causing the collision with the bridge and other vehicles, the decedent suffering fatal injuries as the result of same.
The suit against the Department of Transportation is based upon Code Ann. §§ 95A-304 and 95A-305 (Ga.L.1973, pp. 947, 983; 1974, pp. 1422, 1428), which has reference to suits directly against the department, as well as the liability of the department for certain suits against counties.
In addition to the answers filed denying the claims both the Department of Transportation and the Chatham County Commissioners filed motions to dismiss based upon sovereign immunity. After consideration of the motions to dismiss, in two separate orders, the trial court dismissed the action based on the ground of sovereign immunity as to the Department of Transportation and as to the remaining defendants, county commissioners, county police chief, county administrator and county public works chief, on the same ground. Plaintiff appeals. Held:
1. It is elementary that one cannot sue the state without the state's consent. However, it is the contention of the plaintiff that Code Ann. §§ 95A-304 and 95A-305, supra, constitute the consent of the sovereign to allow the Department of Transportation to be sued in a wrongful death action such as here. We cannot agree based upon such cases as Tounsel v. State Highway Department of Georgia, 180 Ga. 112, 116, 178 S.E. 285; State Highway Department of Georgia v. McClain, 216 Ga. 1, 6, 114 S.E.2d 125; Sikes v. Candler County, 247 Ga. 115, 274 S.E.2d 464; Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224; Miree v. United States of America, 242 Ga. 126, 249 S.E.2d 573; Crowder v. Department of State Parks, 228 Ga. 436, 439, 440, 185 S.E.2d 908. Compare National Distributing Company, Inc. v. Department of Transportation, 157 Ga.App. 789, 278 S.E.2d 648, affd. s.c. 248 Ga. 451, 283 S.E.2d 470 ().
2. The above and foregoing cases with reference to the Department of Transportation, as a subdivision of the state, likewise applies to the County of Chatham, i.e., the Chatham County Commissioners, as representatives of the state in their official capacity. See Revels v. Tift County, Georgia, 235 Ga. 333, 219 S.E.2d 445; Crowder v. Department of State Parks, 228 Ga. 436, 439(2), 185 S.E.2d 908, supra; Roberts v. Barwick, 187 Ga. 691(2), 695, 1 S.E.2d 713. Compare Duffield...
To continue reading
Request your trial
-
Shuman v. Dyess, 69801
...Ga. 334, 336, 290 S.E.2d 915 (1982); Dillard v. Fussell, 160 Ga.App. 382, 383, 287 S.E.2d 96 (1981). See also Counihan v. Dept. of Transp., 162 Ga.App. 374, 290 S.E.2d 514 (1982). "[I]n Georgia the distinction between a ministerial and a discretionary act, and therefore the scope of the imm......
-
Huggins v. Georgia Dept. of Transp.
...has been rejected in Andrews v. Dept. of Transportation, 133 Ga.App. 78(1), 210 S.E.2d 30 (1974) and Counihan v. Dept. of Transportation of Ga., 162 Ga.App. 374(1), 290 S.E.2d 514 (1982). "There was no intent by the General Assembly [in enacting Code Ann. § 95A-304(a) ] to waive immunity an......
-
Simmons v. State
... ... 373 ... The STATE ... No. 64097 ... Court of Appeals of Georgia ... May 18, 1982 ... Thomas J. Matthews, [162 Ga.App ... ...
-
Department of Transp. v. Land
...trial court correctly dismissed DOT as a party to the suit as sovereign immunity protected it. Sikes, supra; Counihan v. Dept. of Transp., 162 Ga.App. 374(1), 290 S.E.2d 514 (1982). However, recognizing that Whitfield County had waived its immunity under the 1983 constitutional provision by......