concurring specially.
I join in the per curiam opinion and concur specially for the following reasons.
1. Having determined that the immunity waiver is effective against the DOT employees, we must now consider their contention that Price’s action against them was barred by the two-year statute of limitation under OCGA § 9-3-33. It is undisputed that Price was rendered permanently incompetent by the accident, and “[m]inors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” OCGA § 9-3-90. I do not agree with the argument made by Ethridge and Tyre and adopted in Judge Benham’s special concurrence that because Price filed suit against the DOT, the tolling of the statute of limitation ceased. Neither Cline v. Lever Bros. Co., 124 Ga. App. 22, 23 (4a) (183 SE2d 63) (1971), cited in Judge Benham’s special concurrence, nor those cases cited by Ethridge and Tyre, stand for that proposition. The cited portion of Cline merely stands for the proposition that the suit brought by next friend in that case was timely and not barred by the statute of limitation, because the plaintiff was incapacitated. Moreover, this court has held that the statute of limitation will not run against a minor represented in litigation by next friend or guardian ad litem, Barnum v. Martin, 135 Ga. App. 712, 715 (219 SE2d 341) (1975); see also Jones v. Hartford Accident &c. Co., 132 Ga. App. 130 (207 SE2d 613) (1974), and that “[sjince all the parties enumerated in [OCGA § 9-3-90] are in the same class, it follows that the law applica*86ble to a minor is equally applicable to the other classes of persons enumerated.” Whalen v. Certain-Teed Prods. Corp., 108 Ga. App. 686, 688 (134 SE2d 528) (1963). Consequently, it is established law that the statute of limitation remains tolled against an incompetent despite the institution of an action by next friend or guardian.
Even if the policy arguments put forth by Ethridge and Tyre for holding otherwise are meritorious, the statute is clear, and any change is better left to the wisdom of the Legislature. Accordingly, in my view the trial court correctly denied the motions of Ethridge and Tyre for summary judgment on this issue on the ground that the statute of limitation was tolled during Price’s incapacity, and the action against them was timely filed.
I do not agree with Judge Pope that Ethridge and Tyre meet the statutory requirements for the relation back of amendments adding parties as set forth in OCGA § 9-11-15 (c). In his opinion, Judge Pope has concluded that the amendment adding Ethridge and Tyre relates back because Price had good reason for the delay in adding them, and the added parties would not be prejudiced by the addition. However, under the statutory language, that analysis is deficient. Those two factors are simply among those “to be considered by the trial court in determining whether to allow the amendment,” Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (2) (308 SE2d 211) (1983), as pointed out in Judge Pope’s opinion. Other factors are that “within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” OCGA § 9-11-15 (c).
It is undisputed that both Ethridge and Tyre had retired from the DOT years before the accident occurred, and thus there would have been no reason for either of them to have known of the accident, to have received notice of the institution of this action against the DOT, or to have knowledge that “but for a mistake concerning the identity of the proper party, the action would have been brought against [them].” Id. In fact, in the affidavit in support of his motion for summary judgment, Tyre specifically averred that he had “no knowledge of this law suit until perhaps a couple of weeks prior to February 1, 1988,” when he was served, almost three years after the institution of the action. That averment was unrebutted. In my view, therefore, the necessary statutory preconditions for relation back have not been met.
2. Nevertheless, in my view both Ethridge and Tyre were entitled to summary judgment on the merits.
*87The allegation of negligence against Tyre was specific, as demonstrated by the plaintiff’s answers to interrogatories. The claim was that “[i]t was Mr. Tyre’s decision as to whether or not existing guardrail on the roadway should be replaced or extended. Mr. Tyre negligently failed to have the guardrail on the subject bridge approach extended so as to prevent automobiles leaving the roadway from dropping down the high, steep embankment.” This claim of negligence clearly relates to maintenance, rather than to design or construction. However, Tyre’s unrebutted affidavit in support of his motion for summary judgment shows that although he was the District Engineer in the Tifton office of the DOT from 1975 to 1979, the project was not completed or open to traffic until several years after his retirement in 1979, and he was never involved with maintenance of the project. Moreover, even if the claim of negligence against Tyre had related to design or construction it could not have survived summary judgment, since in his affidavit Tyre also averred that his job did not call for him to have any actual contact with the construction of the West Oakridge Road project, he had no input into the design, and no participation in the construction beyond overseeing some administrative tasks. Accordingly, I believe the trial court erred by denying Tyre’s motion for summary judgment.
3. As to Price’s claims of negligence against Ethridge, again her interrogatory answers are specific, and allege that Ethridge “and/or those persons under his supervision negligently designed the subject bridge approach to create . . . defects” (emphasis supplied) consisting of a high embankment, lack of sufficient guardrail, lack of median barriers, failure to correct a drop caused by settlement, and failure to correct the road surface to prevent pooling of water. It is clear that the last two “defects” alleged are not design defects, but maintenance failures. Ethridge had no responsibility for maintenance. As to the alleged design defects, in his affidavit in support of his motion for summary judgment Ethridge averred that during his tenure as State Road Design Engineer from December 1974 to his retirement in December 1978 he did no actual drafting or designing of projects, that the “ordinary business routine in [his office] would have called for the West Oakridge construction plans to have been certified by the Office of Engineering Services as meeting the design standards and specifications of the [DOT],” that his time “was devoted largely to overseeing the timely completion of plans and to the allocation of personnel,” and that the West Oakridge Road project was designed “in accordance with the [DOT] policies for state aid projects which were in effect at the time.” In my view, this uncontroverted evidence rebuts Price’s allegations of negligence as to Ethridge and entitles him to summary judgment.
Accordingly, I would reverse the trial court’s denial of summary *88judgment as to Ethridge and Tyre on that basis, without reaching the remaining arguments put forth by them as supporting summary judgment.
I am authorized to state that Presiding Judge Deen and Judge Birdsong join in this special concurrence.