Comanche Const. Inc. of Ga. v. Dot, A04A2037.
| Decision Date | 13 April 2005 |
| Docket Number | No. A04A2037.,A04A2037. |
| Citation | 613 S.E.2d 158,272 Ga. App. 766 |
| Parties | COMANCHE CONSTRUCTION INC. OF GA. v. DEPARTMENT OF TRANSPORTATION et al. |
| Court | Georgia Court of Appeals |
Timothy Buckley, Finley & Buckley, Dennis Brown, Atlanta, for appellant.
Thurbert E. Baker, Attorney General, Appelbaum & Associates, Eve A. Appelbaum, Todd C. Passman, Speckhals & Cora, Trent B. Speckhals, Hector R. Cora, Atlanta, for appellees.
Amanda Warnick sued Comanche Construction, Inc. of Georgia ("Comanche") and the Georgia Department of Transportation ("DOT") for damages she allegedly sustained in an automobile wreck along a construction zone detour route. Both defendants moved for summary judgment on Warnick's claims. Comanche also moved for summary judgment on DOT's cross-claim against it for contribution and indemnity. The trial court subsequently denied Comanche's motions for summary judgment. As to Warnick's claims against DOT, however, the trial court found DOT immune from suit and thus entitled to summary judgment.
Warnick did not file a notice of appeal relating to the trial court's grant of summary judgment to DOT. Comanche, however, appeals that ruling, asserting that it has standing to challenge the grant of summary judgment directly because the ruling adversely impacts its claim against DOT for contribution and indemnity. Pursuant to OCGA § 5-6-34(d), Comanche also appeals the trial court's order denying its motions for summary judgment. For reasons that follow, we affirm.
"Summary judgment is appropriate when the evidence, construed most favorably to the nonmoving party, demonstrates that no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law."1 Viewed in this manner, the record shows that, in December 1999, Comanche entered into a contract with DOT to refurbish 34 bridges in Georgia, including a bridge on Brownwood Road in Morgan County. The contract contained numerous specifications for the project, including specifications relating to traffic control. It also required Comanche to designate a "Work Site Traffic Supervisor" to be "responsible for initiating, installing and maintaining all traffic control devices."
Comanche designed and prepared a traffic control plan for the Brownwood Bridge repair, then submitted it to DOT for approval. The proposed plan detoured traffic onto Thankful Road, which ends at a T-intersection with Clack Road. The DOT approved the plan — which designated general locations for detour signs and other traffic signs — subject to the addition of two more detour signs.
Comanche's work site traffic control supervisor (the "WTCS") installed detour signs along the planned route on April 4, 2000. As noted above, the traffic control plan provided general locations for the signs, but the WTCS used his judgment to determine, based on conditions, exactly where each sign should be placed. Pursuant to the plan, the WTCS installed a detour sign on Thankful Road, just before the intersection with Clack Road, which is regulated by a stop sign.2 After Comanche installed the signs, a DOT technician inspected the detour route and informed the WTCS that the signs "were fine."
Comanche began the bridge repair on April 5, 2000, and finished the work on April 6, 2000. Later that day, Comanche reopened the bridge and removed the main construction signs placed along Brownwood Road. It did not, however, remove the detour signs, and the Morgan County Board of Commissioners complained to DOT on April 7, 2000, that detour signs remained along the detour route. DOT instructed Comanche to remove the detour signs, but Comanche did not take them down until April 10 or April 11, 2000.
On the night of April 8, 2000, Warnick was a passenger in a car driving along the Thankful Road detour route. The driver failed to stop at the intersection of Thankful Road and Clack Road, drove off the roadway, and collided with a tree. According to the driver, she did not realize that Thankful Road ended at the Clack Road intersection, and she did not see the stop sign because it was blocked by the detour sign at the intersection.
Warnick sued DOT and Comanche for damages she suffered in the wreck. She asserted that Comanche negligently placed the detour sign in front of the intersection stop sign. As to DOT, Warnick alleged that it
DOT and Comanche both moved for summary judgment on Warnick's claims, and Comanche also requested summary judgment on DOT's cross-claim for contribution and indemnity. Finding DOT immune from suit under the Georgia Tort Claims Act,3 the trial court granted DOT's motion for summary judgment. The trial court, however, denied Comanche's motions.
1. We must first address DOT's motion to dismiss this appeal. According to DOT, the trial court's order granting it summary judgment did not aggrieve Comanche, leaving the contractor without standing to appeal. We disagree. A defendant has "standing to appeal the grant of summary judgment to another co-defendant against whom he asserts a right of contribution."4 We have applied this principle regardless of whether the appellant has actually filed a cross-claim for contribution.5
As clearly shown by the complaint, Warnick sued DOT and Comanche as joint tortfeasors. Georgia law creates a right of contribution among joint tortfeasors.6 And Comanche asserts that the summary judgment award adversely impacted its contribution claim against DOT. Under these circumstances, Comanche has standing to appeal. Accordingly, DOT's motion to dismiss is denied, and we will address the merits of Comanche's arguments.
2. Sovereign immunity extends to the State, its agencies, and its departments unless specifically waived by an Act of the General Assembly.7 Georgia's Tort Claims Act ("the Act") provides for a limited waiver of sovereign immunity, but also sets forth certain exceptions to that waiver.8 As a department of the State, DOT is subject to the waiver and the exceptions in the Act.9
OCGA § 50-21-24 creates 13 exceptions to State tort liability. In granting DOT's motion for summary judgment, the trial court focused on the "inspection powers exception," which provides:
[t]he [S]tate shall have no liability for losses resulting from . . . [i]nspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the [S]tate to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.10
The phrase "inspection powers or functions" includes both an inspection of physical property to determine whether it complies with accepted safety standards, as well as a review of construction plans for such compliance.11 The exception applies to all "inspection powers and functions undertaken by state officials in the performance of their official duties or employment," regardless of the source for the alleged duty to inspect.12
The evidence shows that DOT employees reviewed and approved Comanche's traffic control plan, then inspected the detour route after Comanche installed the detour signs. In our view, such conduct falls squarely within the inspection powers exception in OCGA § 50-21-24(8).13
We recognize that, in her amended complaint, Warnick alleged that DOT "assisted in designing" Comanche's traffic control plan. The record, however, belies this claim. Specifically, the Comanche project manager who prepared the traffic control plan testified that, other than obtaining approval from DOT, Comanche "handled all aspects" of designing the plan and installing the detour signs.
Furthermore, although DOT added two detour signs to Comanche's plan, neither of those signs is at issue in this case. And we cannot find that DOT took on design responsibilities — and removed itself from the inspection powers exception — simply by approving the plan on the condition that two signs be added.14 Such result would eviscerate the exception to State liability for tortious acts in any case where the State discovers, through its inspection, some type violation or inadequacy that requires corrective action. Certainly, the legislature did not intend to limit the State's immunity to inspections involving no request for subsequent remedial work.15
On appeal, Comanche argues that DOT is statutorily precluded from delegating, through contract, its obligation to design traffic control plans and erect traffic control devices for DOT construction projects on public roads. According to Comanche, DOT had an ultimate, nondelegable duty to design the traffic control plan in this case and thus cannot hide behind the inspection exception. We find this argument unpersuasive.
In reviewing Comanche's claim, we are guided by two principles. First, "where the language of [a] statute is plain and unambiguous, and does not lead to contradictory, absurd, or wholly impracticable results, it is the sole evidence of legislative intent and must be construed according to its terms."16 Second, this Court generally is unwilling to impose a nondelegable, affirmative duty upon a State entity absent clear statutory language that the legislature intended to establish such duty.17
As noted by Comanche, OCGA § 32-1-3(24)(J) defines the term "public road" to include signs or traffic control devices on a detour route open to the public. And OCGA § 32-2-2(a)(3) requires DOT to "provide for surveys, plans, maps, specifications, and other things necessary" for work on public roads that the DOT "may be given responsibility for or control of by law." But nothing in this...
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