The appellant Annie Collins was severely injured in a one vehicle collision on January 18, 1987. She filed suit on January 17, 1989, against Gary Kenneth Byrd, Kevin Byrd and Rosa L. Williams, alleging that Rosa L. Williams owned the vehicle and negligently entrusted it to Gary Kenneth Byrd, who was driving it under the direction of Kevin Byrd, and that their combined negligent actions proximately caused her injuries. Also, named as a defendant was General Motors Corporation (“GM”), which was alleged to have been negligent in the design and manufacture of the vehicle, a 1972 GMC Rally van, and in failing to warn of the danger after it was discovered. Named as further defendants were the State of Georgia and the State of Georgia Department of Transportation (“DOT”), which she asserted had negligently designed, repaired and/or maintained State Route 4 in such a manner as to cause water to stand on the highway and the vehicle in which she was a passenger to hydroplane and crash into a tree. Appellant did not claim that any defect in the van or any negligence of GM caused the van to leave the roadway, and GM moved for summary judgment based upon the statute of repose and appellant’s failure to develop or reveal through discovery any evidence in support of her action. DOT raised the defense of sovereign immunity and also moved for summary judgment. A hearing was scheduled on these motions for April 6, 1990, but shortly beforehand appellant indicated she would voluntarily dismiss her complaint without prejudice. This dismissal was filed on April 12, 1990, and on October 10, 1990, one day before expiration of the six-month period provided by the renewal statute, appellant refiled her complaint reasserting all the claims originally raised against all the defendants. Again she cited no facts to support her negligence claims in response to GM’s discovery efforts, and named no individual defendants nor alleged a waiver of sovereign immunity as to DOT.
On November 29, 1990, DOT moved for summary judgment on the same grounds raised in the original suit. In response thereto, appellant filed a motion to add named employees of DOT. A hearing was held on these motions on July 17, 1991, at which time the trial court denied appellant’s motion, and on August 19, 1991, granted DOT’s motion for summary judgment on grounds of sovereign immunity. After appellant failed to comply with its requests for supplemental discovery, GM’s motion for summary judgment filed on February 13, 1991, was granted by the same order. This appeal is from that order. Held:
1. Appellant contends that the trial court erred by shifting the burden to her to go forward with evidence to prove her right to re
A defendant may prevail on its motion for summary judgment “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] 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,
“Given [appellant’s] continued inability or unwillingness throughout [the three-year period this case has been in litigation] to cite any specific instances of [GM’s alleged negligence], the trial court was authorized under such circumstances to conclude that no such conduct had in fact occurred and that no material issue of fact remained to be tried with respect to this claim. Consequently, the trial court was authorized to award [GM] summary judgment on the claim, notwithstanding the absence , of any sworn testimony affirmatively negating the allegation that such conduct had occurred. [Cits.]”
Munna v. Lewis,
2. Appellant asserts that the trial court erred in denying her motion to add three individual employees of DOT as defendants, as they were merely nominal parties necessary to trigger the insurance coverage and the case would in reality still be against the original defend
3. Appellant’s final enumeration of error challenges the grant of summary judgment to DOT on the issue of sovereign immunity. She submits that even without the naming of individual employee defendants, the purchase of liability insurance or the establishment of a fund to cover injuries resulting from the acts of the individual employee should be deemed a knowing waiver of sovereign immunity. However, “[t]he appellant never made any such allegation in the court below, with the result that [DOT] was never called upon to deny the existence of such insurance coverage and the trial court was never called upon to rule on the issue. Consequently, this contention presents nothing for review on appeal. . . . Indeed, the general rule is that ‘(i)n the absence of express statutory (or constitutional) authorization, neither counsel for the state'nor any of its agencies may, by affirmative action or by failure to plead, waive the defense of governmental immunity.’ [Cits.]”
Kelleher v. State of Ga.,
Judgment affirmed.