Self v. City of Atlanta , 188 Ga. App. 81 ( 1988 )

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 SE2d 28) (1982); Busbee v. Ga. Conference &c. of Univ. Professors, 235 Ga. 752 (1) (221 SE2d 437) (1975); Knowles v. Housing Auth. of Columbus, 212 Ga. 729 (95 SE2d 659) (1956); Marine Port Terminals v. Ga. Ports Auth., 180 Ga. App. 380, 381 (348 SE2d 896) (1986); State Hwy. Dept. v. W. L. Cobb Constr. Co., 111 Ga. App. 822 (143 SE2d 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 &c. of Savannah v. Palmerio, 242 Ga. 419, 426 (249 SE2d 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 SE2d 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 SE2d 111) (1986).

Appeal dismissed in Case No. 75833. Judgment affirmed in Case No. 75834. McMurray, P. J., and Pope, J., concur specially.