FIRST DIVISION

BARNES, P. J.,

GOBEIL and MARKLE, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

June 14, 2021

In the Court of Appeals of Georgia

A21A0453. YOUNG v. JOHNSON et al.

GOBEIL, Judge.

Adrienne Young sustained injuries when her vehicle was hit by a vehicle

driven by Steve Johnson, a City of Atlanta (the “City”) employee. The City owned the

vehicle Johnson was driving, and he was acting within the course and scope of his

employment at the time of the crash. Young filed a negligence action against the City,

under a theory of respondeatsuperior, and against Johnson in hisindividual capacity.

The City and Johnson answered the complaint and filed a motion to dismiss the

complaint for failure to state a claim, asserting in relevant part that Young’s claims

were barred by sovereign immunity and that she failed to cite any statutory waiver of

sovereign immunity that would apply to her allegations. Young did not thereafter

amend her complaint or respond to the motion to dismiss, and the trial court granted
the motion as to the City and Johnson. Specifically, the trial court ruled that (1)

Young failed to establish that the City had waived sovereign immunity in the action,

and (2) Johnson could not be held liable in his individual capacity. This appeal

followed. In her sole claim of error, Young argues that the trial court erred by ruling

that she had not established a waiver of the City’s sovereign immunity because the

City’s immunity is clearly and explicitly waived by OCGA § 36-92-2 (a) (3). As

explained below, we find no error and affirm.

“We review de novo a trial court’s ruling on a motion to dismiss based on

sovereign immunity grounds, which is a matter of law. Factual findings are sustained

if there is evidence supporting them, and the burden of proof is on the party seeking

the waiver of immunity.” Douglas v. Dept. of Juvenile Justice, 349 Ga. App. 10, 10-

11 (825 SE2d 395) (2019) (citation and punctuation omitted). See also City of Tybee

Island v. Harrod, 337 Ga. App. 523, 524 (788 SE2d 122) (2016) (“Sovereign

immunity of a municipality is not an affirmative defense, going to the merits of the

case, but raises the issue of the trial court’s subject matter jurisdiction to try the case,

and waiver of sovereign immunity must be established by the party seeking to benefit

from that waiver[.]”) (citation and punctuation omitted).

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Under Georgia law, municipal corporations are immune from suit pursuant to

Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia, unless

that immunity is waived by the General Assembly. See Ga. Const. of 1983, Art. I,

Sec. II, Par. IX (e). Specifically, with regard to municipal corporations, our General

Assembly has enacted OCGA § 36-33-1, which reiterates that “it is the public policy

of the State of Georgia that there is no waiver of the sovereign immunity of municipal

corporations of the state and such municipal corporations shall be immune from

liability from damages.” OCGA § 36-33-1 (a).

In the context of cases involving automobile collisions, OCGA § 36-92-2,

providesthat “[t]he sovereign immunity of local government entitiesfor a loss arising

out of claims for the negligent use of a covered motor vehicle is waived up to

[certain] limits” as outlined in the statute. OCGA § 32-92-2 (a).1“The waiver

provided by this chapter shall be increased to the extent that . . . [t]he local

government entity purchases commercial liability insurance in an amount in excess

of the waiver set forth in this Code section.” OCGA § 36-92-2 (d) (3). In Gates v.

Glass, 291 Ga. 350, 352-353 (729 SE2d 361) (2012), our Supreme Court gave the

1 For incidents which occur on or after January 1, 2008, such as the one in the

present case, an aggregate amount of $500,000 is the limit for bodily injury or death

of any one person in any one occurrence. OCGA § 36-92-2 (a) (3). 

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following explanation of the statutory scheme with regards to waiver of sovereign

immunity under this code section:

An examination of OCGA § 36-92-1 et seq., as well as the earlier and

revised versions of OCGA § 33-24-51 (a) and (b), demonstrates an

intent on the part of the legislature to create a two-tier scheme within

which local governments are deemed to have waived sovereign

immunity with regard to accidents arising from the operation of their

motor vehicles.The first tier, established under OCGA § 36-92-1 etseq.,

requires local entities to waive sovereign immunity — up to certain

prescribed limits — for incidentsinvolving motor vehiclesregardless of

whether they procure automobile liability insurance. The second tier,

enacted by OCGA § 33-24-51 (b), and as revised in 2002, provides for

the waiver of sovereign immunity to the extent a local entity purchases

liability insurance in an amount exceeding the limits prescribed in

OCGA § 36-92-2.

(Footnote omitted).

Young arguesthatshe was notrequired to expressly allege that the Citywaived

sovereign immunity because the facts she raised in her complaint demonstrate a

waiver as codified in OCGA § 36-92-2. We disagree. In her suit, Young alleged that

she sustained injuries as a result of an automobile collision with Johnson, a City

employee, due to Johnson’s negligent operation of the vehicle. However, sovereign

immunity is not an affirmative defense and the City did not have a duty to “negate the

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possibility that the defense of sovereign immunity had been waived.” Kelleher v.

State of Ga., 187 Ga. App. 64, 64-65 (1) (369 SE2d 341) (1988) (emphasissupplied).

As noted above, Young did not explicitly plead a waiver of the City’s sovereign

immunity in her complaint, and she failed to amend her complaint to allege such a

waiver. Furthermore, she did not (1) raise OCGA § 36-92-3 in any of her filings in

the court below, (2) respond to the City’s motion to dismiss, or (3) otherwise contest

the motion to dismiss.

2 Under these circumstances, the trial court properly found that

Young failed to satisfy her burden of establishing a waiver of the City’s sovereign

immunity, and the court did not err by dismissing her complaint. See Seay v.

Cleveland, 270 Ga. 64, 66 (2) (508 SE2d 159) (1998) (where plaintiffsfailed to allege

specific statutory waiver of sovereign immunity in their complaint or motion for

directed verdict, issue of whether county’s sovereign immunity had been waived by

OCGA § 50-21-1 (a) “present[ed] nothing for review on appeal”); Bulloch County

School Dist. v. Ga. Dept. of Ed., 324 Ga. App. 691, 693-694 (1) (751 SE2d 495)

2

In her appellate brief, Young maintainsthat the parties had stipulated thatshe

would have additional time to respond to the motion to dismiss, but she

“inadvertently neglected to file a stipulation to that effect with the trial court.” She

also allegesthatshe filed a motion to reconsider or set aside the trial court’s dismissal

order, but this motion does not appear in the record transmitted to this Court in

connection with this appeal, and Young did not move to supplement the record on

appeal.

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(2013) (school district failed to establish waiver of department of education’s

sovereign immunity, in part, where district did not assert any waiver of sovereign

immunity in its complaint or in its motion seeking fundsfrom the department, did not

file a reply brief responding to the department’s assertion of sovereign immunity, and

never asserted any statutory claim of waiver until it filed its brief with this Court);

Kelleher, 187 Ga. App. at 64-65 (1) (noting that State was not required to address

issue of sovereign immunity because appellant never alleged it in trial court).

Judgment affirmed. Barnes, P. J., and Markle, J., concur.

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