Jackson v. Department of Transp., A91A1326

• Decision Date: 28 October 1991
• Docket Number: No. A91A1326,A91A1326
• Parties: JACKSON v. DEPARTMENT OF TRANSPORTATION, et al.
• Court: Georgia Court of Appeals

Page 847

412 S.E.2d 847

201 Ga.App. 863

JACKSON v. DEPARTMENT OF TRANSPORTATION, et al.

No. A91A1326.

Court of Appeals of Georgia.

Oct. 28, 1991.

Reconsideration Denied Nov. 19, 1991.

Certiorari Denied Jan. 17, 1992.

Sutton & Slocomb, Berrien L. Sutton, Homerville, and Hallman & Associates, Ronald W. Hallman, Claxton, for appellant.

Michael J. Bowers, Atty. Gen., Beverly B. Martin, George P. Shingler, Sr. Asst. Attys. Gen., Susan J. Levy, Staff Atty., Atlanta, Dickey, Whelchel, Brown & Readdick, and Terry L. Readdick, Brunswick, for appellees.

BEASLEY, Judge.

Plaintiff Jackson appeals the grant of summary judgment in favor of defendants Department of Transportation and its employee Jones, a maintenance engineer. In Jackson's action against DOT and its employees, he alleged that DOT was responsible for maintaining the state highway system; that Georgia Highway 144 in Camden County was a public road designated by DOT as part of the state highway system; that he was injured while driving on State Route 1850 (same road); and his permanent injuries were caused by defendants' negligent repair and maintenance of the road and the defective design and condition of the road. DOT and Jones filed answers in which they denied that the road in question was part of the state highway system and further asserted that Jackson had failed to attach an affidavit to the complaint as required by OCGA § 9-11-9.1, relating to actions for malpractice.

The Supreme Court has recently pronounced as to summary judgment: "A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). The court held: "[S]ummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the nonmoving party, concludes that the evidence does not create a triable issue as to each essential element of the case." Id. at 495, 405 S.E.2d 474.

Jackson sought recovery based upon OCGA § 32-2-6 which provides that DOT is responsible for damages awarded against any county where the cause of action accrues on a public road designated by DOT as part of the state highway system. See DOT v. Land, 181 Ga.App. 94, 351 S.E.2d 470 (1986), affirmed in part and reversed in part, 257 Ga. 657, 362 S.E.2d 372 (1987).

Other Code sections also bear on the issues. OCGA § 32-4-1(1) defines "state highway system." OCGA § 32-2-2 requires DOT to "plan, designate, improve, manage, control, construct, and maintain a state highway system" and to "have control of and responsibility for all construction, maintenance, or any other work upon the state highway system." DOT is forbidden by law from maintaining any public road not on the state highway system. Any DOT contract with a political subdivision for construction of a public road, not then, nor to become, part of the state highway system shall not relieve the political subdivision of the responsibility for maintaining the road. OCGA § 32-2-61(e). The county, and not DOT, has the same responsibilities as does DOT for a state road regarding the construction, maintenance and all other work related to a county road. OCGA § 32-4-41(1). DOT is liable only if the instant road is part of the state highway system.

DOT produced the affidavit of its Chief of Cartography that Route S 1850 (also known as county road 144) has been designated as part of the County Road System since the State Highway Department (now DOT) began keeping records in 1938. See OCGA § 32-4-2(a). This shifted the burden to Jackson who attempted to refute this proof with the accident report which tended to show that the road was a state route. However, the state patrolman who prepared the report by affidavit declared that he had made a mistake and the road indeed was a county one. This would not fulfill Jackson's burden as the nonmoving party to show a genuine issue of material fact. ¹ Neither would a 1961 resolution by Camden County that it would "at its own cost and expense, maintain the project in a manner satisfactory to the Authority and State Highway Department, and will make ample provision each year for its maintenance." None of this overcomes the statutory directives and could not impose liability upon DOT for maintenance or repair. Liability is fixed by the statute.

Jackson has referred to testimony from depositions to sustain his contention that there is a factual issue with respect to the road's status. Jackson as appellant has the burden of showing error by record. However, these depositions were not included in the original record and cannot be used to substantiate Jackson's arguments. See Brown v. Frachiseur, 247 Ga. 463, 464, 277 S.E.2d 16 (1981). As in Brown, in order for this court to ascertain whether the grant of summary judgment was erroneous, appellant must...