Price v. Department of Transp.

• Decision Date: 20 June 1994
• Docket Number: No. A94A0813,A94A0813
• Citation: 446 S.E.2d 749,214 Ga.App. 85
• Parties: PRICE v. DEPARTMENT OF TRANSPORTATION et al.
• Court: Georgia Court of Appeals

Page 749

446 S.E.2d 749

214 Ga.App. 85

PRICE v. DEPARTMENT OF TRANSPORTATION et al.

No. A94A0813.

Court of Appeals of Georgia.

June 20, 1994.

Reconsideration Denied July 20, 1994.

Certiorari Denied Oct. 28, 1994.

Burt & Burt, Hilliard P. Burt, Albany, for appellant.

Michael J. Bowers, Atty. Gen., Cathy A. Cox-Brakefield, Asst. Atty. Gen., for appellees.

Webb, Tanner & Powell, Ralph L. Taylor III, Lawrenceville, Franklin, Taulbee, Rushing & Bunce, Elizabeth F. Bunce, Statesboro, amici curiae.

ANDREWS, Judge.

This case has been before this court several times. Appellate rulings have issued in this matter in Price v. Dept. of Transp., 257 Ga. 535, 361 S.E.2d 146 (1987), overruling 182 Ga.App. 353, 356 S.E.2d 45 (1987); Dept. of Transp. v. Price, 208 Ga.App. 320, 430 S.E.2d 602 (1993); Ethridge v. Price, 194 Ga.App. 82, 389 S.E.2d 784 (1989); Price v. Wright Contracting Co., 183 Ga.App. 595, 359 S.E.2d 406 (1987); and Price v. Reeves Constr. Co., 181 Ga.App. 241, 351 S.E.2d 655 (1986).

The litigation arose out of an automobile accident that occurred on May 10, 1983 in Albany, Georgia, in which Hattie Eileen Price was severely and permanently injured. Price filed suit, alleging that "the negligence of two automobile drivers caused a collision with her vehicle forcing her off the roadway and down a high hill which was on a bridge approach. She alleged the roadway was part of the state highway system under the jurisdiction of DOT and that it was maintained in an extremely hazardous condition. She particularly pointed to the absence of guardrails. A later amendment to the complaint named three employees of DOT, the maintenance area manager, district traffic and safety engineer and state road design engineer, whose negligence in the design and maintenance of the roadway she alleged contributed to her injuries and damages. The suit named DOT and its three employees as defendants together with the other automobile drivers, City of Albany, Dougherty County and two private corporations." Price v. Dept. of Transp., supra 257 Ga. at 535, 361 S.E.2d 146.

1. Price filed suit on May 9, 1985 in her own name. She amended her complaint on August 5, 1985 to proceed through her mother as next friend due to her incapacity from brain damage.

Two previous appearances of this case are relevant to our inquiry here. ¹ In Price v. Dept. of Transp., supra, the Supreme Court addressed DOT's motion for summary judgment which was based on sovereign immunity. Interpreting the Georgia Constitution, the court stated that for certain actions there is a waiver of sovereign immunity. The court noted that Price's action was against both employees of DOT and the DOT, and thus the State, itself. It stated "DOT is a defendant and liable in tort, if at all, only because of the doctrine of respondeat superior. That is why it is a defendant in this action." Id. at 536. The court concluded that since insurance protection for such a claim had been provided and since the policy named DOT employees as insureds, sovereign immunity was waived to the extent of the insurance coverage.

On reconsideration, the court noted that the motion to add individual employees as defendants was pending below. It stated "[w]hen the case returns to the trial court the judge shall rule on the motion to add the employees as defendants. If they, or any of them, are made defendants there is a waiver of sovereign immunity as to the DOT as stated in the opinion. Since a waiver depends upon the presence of a claim in the action for which liability insurance protection has been provided, if no employee is made a party defendant there will be no waiver as to DOT. In that event summary judgment for DOT is affirmed." Id. at 537-538, 361 S.E.2d 146.

In Ethridge v. Price, supra, the issue of the individual party defendants was addressed. Upon the return of the case to the trial court, the motion to add DOT employees Ethridge, Tyre and Mims as party defendants was granted. They were served with copies of the amended complaint in February 1988 and then filed a motion for summary judgment.

In a per curiam opinion, the court concluded that the motion for summary judgment of Mims, a retired DOT employee, was properly granted. The court then concluded that, "[e]ither for the reason stated in the special concurrence of Judge Sognier or for the reason stated in the special concurrence of Judge Benham," id. at 84, 389 S.E.2d 784, summary judgment should have been granted to the other two newly added defendants. Judge Sognier's concurrence stated that though the statute of limitation remained tolled against Price, Ethridge and Tyre were entitled to summary judgment on the substantive merits. Then Judge Benham concluded that the individuals should have been granted summary judgment based on the statute of limitation. On December 5, 1989, the Ethridge decision was rendered. The case returned to the trial court and on March 8, 1990, Price moved to add as party defendants Colvin, Kratzer, Emery and Thompson, all individuals who had been employed by DOT. On January 25, 1991, the trial court allowed the parties to be added.

On July 20, 1993, defendants Kratzer, Colvin, Emery and DOT moved for summary judgment. Subsequently Thompson, who had not been served in the action, also filed a motion for summary judgment. In the motion, the defendants argued that DOT's response to Price's interrogatories on June 26, 1985 identified all of them as individuals involved in the development of the highway.

The trial court granted the motion finding that, despite OCGA § 9-3-90, both the applicable statutes of limitation and of repose had run as to the defendants Emery, Colvin, and Kratzer. Citing Cline v. Lever Bros. Co., 124 Ga.App. 22, 23(4)(a), 183 S.E.2d 63 (1971), and City of Atlanta v. Barrett, 102 Ga.App. 469, 116 S.E.2d 654 (1960), the court found that the applicable two-year statute of limitation began to run with the involvement of Price's next friend in the suit on August 5, 1985 and that the addition of Colvin, Kratzer, and Emery was barred.

The trial court recognized that under OCGA § 9-3-90, in the instance of a minor, the disability is not removed until she attains her lawful majority, any actions taken on her behalf by a guardian or next friend notwithstanding. See generally Whalen v. Certain-Teed Products Corp., 108 Ga.App. 686, 687, 134 S.E.2d 528 (1963); Barnum v. Martin, 135 Ga.App. 712(2), 219 S.E.2d 341 (1975). Nevertheless, the court determined that the difference in the tolling provisions for minors and legal incompetents was rational, since while a person's status as a minor terminated at a certain time, with legal incompetency the condition might remain a lifetime. The court then concluded that the statute of repose under OCGA § 9-3-51 also barred the action against the defendants.

The court determined that its rulings applied to defendant Thompson, who was not served in the action until September 21, 1993. Since there were no employees or former employees of the DOT remaining as party defendants, pursuant to Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 434 S.E.2d 488 (1993), the court dismissed the DOT from the action. This appeal followed.

In her sole enumeration of error, Price claims that the court erred in granting summary judgment. First she argues that Georgia law is clear that the statute of limitation does not run against the claims of an incapacitated plaintiff. She contends that the clear language of the statute shows that the statute is tolled. She cites OCGA § 9-2-21, which provides that the cause of action lies with the incompetent, not her next friend, and claims that this...