Court of Appeals: Trial Judge Too Quick to Dismiss Georgia DOT’s “Sovereign Immunity” Claim in Accident Lawsuit


“Sovereign immunity” is the legal concept that the state itself cannot be sued without its consent. In Georgia, sovereign immunity applies to all state departments and agencies, unless the General Assembly adopts an explicit waiver. One such waiver is the Georgia Tort Claims Act (GTCA), which does permit victims to file personal injury claims against the state under specific circumstances.

Georgia Department of Transportation v. Thompson

There are exceptions to the exception. A person cannot sue under the GTCA, for instance, if their claim involves a state agency’s or state employee’s “failure to exercise or perform a discretionary function or duty.” That is to say, you can sue the state if it fails to follow its own policies and you are injured, but you cannot sue based on the state’s failure to exercise discretionary authority. There is a similar “design exception,” which protects the state from lawsuits arising from the decisions it makes in the planning, design, or construction of public highways.

The Georgia Court of Appeals addressed the discretionary function and design exceptions in a recent decision, Georgia Department of Transportation v. Thompson. This case involves a June 2014 auto accident on State Route 11. The plaintiffs are a mother and two children who were traveling southbound on the two-lane road towards its intersection with Jess Helton Road. Near the approach to the intersection there was also a northbound passing lane on the left side. There was a second vehicle in this passing lane waiting to make its turn onto Jess Helton Road.

A third vehicle approached the intersection, also in the northbound passing lane. The driver of the third vehicle swerved to avoid colliding with the second vehicle. In doing so, the third vehicle went into the northbound lane, onto the shoulder, and eventually hit the plaintiffs’ vehicle.

The plaintiffs subsequently sued the Georgia Department of Transportation (DOT). The lawsuit alleged the DOT was “negligent in the design, building, and maintenance” of the intersection. An engineering expert retained by the plaintiffs elaborated that the DOT “failed to provide the minimum required sight distance for drivers approaching the intersection; failed to post adequate and sufficient speed warnings; and failed to provide and/or maintain the shoulder of the highway at a proper slope.”

The DOT argued the plaintiffs’ lawsuit was barred by the discretionary function and design exceptions to the GTCA. The trial court, however, denied the DOT’s motion to dismiss the case on those grounds. The Court of Appeals reversed the trial judge. The appeals court said the trial judge improperly shifted the burden of proof in this case.

Essentially, the trial court said the DOT needed to “rebut” the testimony of the plaintiff’s engineering expert to maintain sovereign immunity. As the Court of Appeals explained, the plaintiff must establish by a “preponderance of the evidence” that the exceptions do not apply. In this case, that means proof that the design of the intersection “was not prepared in substantial compliance with generally accepted engineering or design standards at the time such plan was prepared.” The Court of Appeals therefore returned the case to the trial court for a new hearing under the correct legal standard.

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