Through her guardian, Valentina Torres sued the Unified Government of Athens-Clarke County, among other defendants, on theories of negligence and nuisance for injuries she sustained when she was struck by a car as she crossed a street in Athens. The trial court denied the unified government’s motion for judgment on the pleadings. We granted the unified government’s application for interlocutory review of that ruling. Because the trial court erred in finding the unified government was not entitled to sovereign immunity, we reverse.
A defendant’s motion for judgment on the pleadings should be granted only where the pleadings disclose with certainty that the plaintiff would not be entitled to relief under any state of provable
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facts. OCGA § 9-11-12 (c);
Cardin v. Outdoor East,
Taking Torres’ factual averments as true, the pleadings show that on December 29, 1997, Torres was legally crossing a street in a marked crosswalk at an intersection in Athens when she was struck by a car. Before the consolidation and unification of the municipal government of Athens and the county government of Clarke County, the intersection was located within the city limits of Athens. The City of Athens installed traffic control signals at the intersection in 1978. The City of Athens maintained the intersection until the city government merged into the unified government in 1991; thereafter the unified government maintained the intersection. The signal intervals at the intersection were set so that pushing the pedestrian walk button was necessary to have the light remain green long enough for a pedestrian to safely cross all seven lanes of traffic. As designed in part by the City of Athens, the intersection’s signals were defective in that the pedestrian push button was located out of the view of pedestrians approaching from a certain direction. When Torres was struck by a car on December 29, 1997, the “Don’t Walk” pedestrian signal had burned out.
The unified government answered and moved for judgment on the pleadings on the basis that it was entitled to sovereign immunity for Torres’ claims. The trial court noted correctly that municipalities are not immune from nuisance actions. See
City of Vidalia v. Brown,
1. Torres’ argument that the unified government waived sovereign immunity by operation of OCGA § 36-33-1 because it maintained a liability insurance policy at the time of the accident is without merit. We note initially: “Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. Instead, immunity from suit is a privilege and the waiver must be established by the party seeking to benefit from the waiver.” (Citations and punctuation omitted.)
Fulton-DeKalb Hosp. Auth. v. Walker,
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Torres’ argument that the unified government is to be considered a municipality is without merit. The charter creating the unified city/ county government, Ga. L. 1990, pp. 3612, 3614, § 8-103, expressly provided that its tort and nuisance liability would follow the law and rules of tort liability applicable to counties in Georgia.
Swan v. Johnson,
2. The unified government contends Torres’ claims were barred by sovereign immunity. We agree. As discussed in Division 1, supra, the charter creating the unified government provided that its tort and nuisance liability would follow the law of tort liability applicable to counties. A 1991 amendment to our constitution provided: “The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). The Supreme Court of Georgia held that sovereign immunity extends to counties under the 1991 constitutional amendment.
Gilbert v. Richardson,
Torres contends the unified government is liable, despite § 8-103 of its charter and the sovereign immunity enjoyed by counties, because the city maintained a nuisance that existed prior to creation of the unified government and continued until Torres’ accident. We do not accept Torres’ position that liability attachéd to Athens as a municipality “for the creation and maintenance of a nuisance” before consolidation in 1991 which resulted in her injuries in 1997. However, even assuming municipal liability for the nuisance that caused Torres’ injuries existed before consolidation and the unified government succeeded to that liability, the General Assembly could provide the protection of sovereign immunity so long as suit had not yet been filed.
Donaldson v. Dept. of Transp.,
Because the unified government was entitled to sovereign immunity, the trial court erred as a matter of law in denying the motion for judgment on the pleadings.
Judgment reversed.