Self v. City of Atlanta

• Decision Date: 14 July 1988
• Docket Number: 75834,Nos. 75833,s. 75833
• Citation: 188 Ga.App. 81,372 S.E.2d 283
• Parties: SELF v. CITY OF ATLANTA et al. (Two Cases).
• Court: Georgia Court of Appeals

Page 283

372 S.E.2d 283

188 Ga.App. 81

SELF v. CITY OF ATLANTA et al. (Two Cases).

Nos. 75833, 75834.

Court of Appeals of Georgia.

July 14, 1988.

Rehearing Denied July 28, 1988.

Certiorari Granted Sept. 16, 1988.

Patrick J. Fox, Billy E. Moore, Columbus, for appellant.

Jo A. Crowder, Jan P. Cohen, Mary C. Cooney, Marva J. Brooks, Atlanta, for appellees.

BENHAM, Judge.

Appellant Self was injured when the vehicle he was driving collided with a truck owned by appellee City of Atlanta and operated by its employee. Appellant filed suit against the city, alleging that it was negligent and had fostered a nuisance. Appellee asserted the defense of sovereign immunity and, after admitting that it had insurance coverage of $1,000 per incident, admitted appellant's allegation of negligence. The trial court then entered judgment in favor of appellant in the amount of $1,000. Appellant filed a direct appeal from the judgment entered (Case No. 75833) as well as an application for leave to file a discretionary appeal. We granted appellant's application (Case No. 75834).

1. Inasmuch as these appeals are from a judgment of less than $2,500 entered in an action for damages, appellant was required to seek discretionary review of the trial court's action. OCGA § 5-6-35(a)(6). Accordingly, appellant's direct appeal (Case No. 75833) must be dismissed.

2. Appellant contends the trial court erred in holding that the city's sovereign immunity had been waived only to the extent of its insurance coverage. Appellant maintains that the General Assembly of Georgia expressly waived the city's sovereign immunity when it adopted the city's present charter in 1973.

Through the passage of the new charter, the General Assembly empowered the City of Atlanta to "sue and be sued, and plead and be impleaded in all courts of law and equity and in all actions whatsoever...." Ga.L.1973, p. 2190. While we readily admit that the courts have relaxed the application of sovereign immunity as to quasi-government entities, Medical Center Hosp. Auth. v. Andrews, 250 Ga. 424(1), 297 S.E.2d 28 (1982); Busbee v. Ga. Conference, etc., of Univ. Professors, 235 Ga. 752(1), 221 S.E.2d 437 (1975); Knowles v. Housing Auth. of Columbus, 212 Ga. 729, 95 S.E.2d 659 (1956); Marine Port Terminals v. Ga. Ports Auth., 180 Ga.App. 380, 381, 348 S.E.2d 896 (1986); State Hwy. Dept. v. W.L. Cobb Constr. Co., 111 Ga.App. 822, 143 S.E.2d 500 (1965) it is still vibrant as to governmental entities. Therefore, the trial court was correct in distinguishing those cases from the one at bar and in granting summary judgment to appellee.

3. Appellant contends the city is responsible for maintaining a nuisance, the operation of sludge trucks, Class IV vehicles, by employees who do not have Class IV driver's licenses.

"To be held liable for maintenance of a nuisance, the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience, or injury...." Mayor, etc., of Savannah v. Palmerio, 242 Ga. 419, 426, 249 S.E.2d 224 (1978). Appellant failed to show that improperly licensed drivers had caused vehicular collisions. The opinion of this court in City of Atlanta v. Whatley, 161 Ga.App. 705, 289 S.E.2d 541 (1982), cited by appellant, does not reflect that the driver was improperly licensed.

4. Lastly, appellant argues that the act of driving sludge, generally considered a governmental function, was, due to revenue generation, actually a ministerial function. Since there was no evidence that garbage fees were used for any purpose other than to offset garbage collection expenses, the trial court did not err in granting summary judgment to the city. See City of Valdosta v. Bellew, 178 Ga.App. 423, 343 S.E.2d 111 (1986).

Appeal dismissed in Case No. 75833. Judgment affirmed in Case No. 75834.

McMURRAY, P.J., and POPE, J., concur specially.

POPE, Judge, concurring specially.

Although I agree with the holding reached by the majority in Division 2 of its opinion, I am compelled to write separately because of the majority's failure to resolve the apparent inconsistency between the "sue and be sued" language contained in the city's charter and the sovereign immunity which is granted to municipal corporations of this state.

As noted by the appellant, the phrase "sue and be sued," or words of similar import, have been held to constitute an express waiver of sovereign or governmental immunity. As suggested by the majority, however, the cases relied on by appellant do not involve the interpretation of that phrase in connection with an alleged waiver of municipal immunity and are not dispositive of the issue presented by this case. I believe this issue can only be resolved by ascertaining the relevant constitutional, statutory and case law as it pertains to the particular entity under scrutiny.

Municipalities, as recognized by both statute and case law, have long enjoyed immunity from tort liability in the performance of legislative and judicial functions. McCrary Eng. Corp. v. City of Bowdon, 170 Ga.App. 462, 464-65, 317 S.E.2d 308 (1984). "In 1880 the Supreme Court of Georgia in Rivers v. City Council of Augusta, 65 Ga. 376 (38 AR 787), promulgated the doctrine whereby a municipal corporation was ruled to have no tort liability when acting in the performance of governmental functions as contrasted with conduct of ministerial or nongovernmental duties. This common law doctrine was thereafter first codified as Section 748 in the Code of 1895 and subsequently carried forward as Section 897 in the Code of 1910 and in [the] Code of 1933 as Section 69-301." Mitchell v. City of Newnan, 125 Ga.App. 761, 761-62, 188 S.E.2d 917 (1972).

At the time the action was filed in the present case, the provision granting sovereign immunity to municipal corporations was codified at OCGA § 36-33-1, which then provided as follows: "Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or improper or unskillful performance of their ministerial duties, they shall be liable." That language may presently be found at OCGA...