Coweta County v. Adams

• Citation: 221 Ga.App. 868,473 S.E.2d 558
• Decision Date: 26 June 1996
• Docket Number: No. A96A0117,A96A0117
• Parties: COWETA COUNTY et al. v. ADAMS et al.
• Court: United States Court of Appeals (Georgia)

Page 558

473 S.E.2d 558

221 Ga.App. 868

COWETA COUNTY et al. v. ADAMS et al.

No. A96A0117.

Court of Appeals of Georgia.

June 26, 1996.

Certiorari Denied Oct. 11, 1996.

Hawkins & Parnell, H. Lane Young, II, Kimberly A. Houston Ridley, Atlanta, for appellants.

Love & Willingham, Allen S. Willingham, Atlanta, Novy, James & Vaughan, Eugene Novy, Deborah M. Vaughan, Atlanta, for appellees.

HAROLD R. BANKE, Senior Appellate Judge.

Barbara Jean Bell was killed and her two passengers, Edward F. Adams II, and Joseph Thierry, Jr., (collectively "Adams") were seriously injured when their pickup truck struck a railing on the Andrew Bailey Road Bridge ("bridge") in Coweta County. ¹ Adams sued the tire manufacturer, a car dealership, the Georgia Department of Transportation (DOT), Coweta County, the Coweta County Department of Public Works and unnamed employees of Coweta County (collectively "County"). ² We granted the County's interlocutory appeal to review the denial of its motion for summary judgment.

To prevail at summary judgment under OCGA § 9-11-56, the County, as movant, must demonstrate that there is no genuine issue of disputed material fact, and that the undisputed facts, viewed in the light most favorable to Adams, the non-movant, warrant summary judgment as a matter of law. OCGA § 9-11-56(c). Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Viewed in that light, the evidence was as follows: As the Chevrolet S-10 pickup truck which Bell was driving approached the County's bridge, the left rear tire blew or lost air pressure. As Bell was attempting to regain control of the vehicle, the left front corner of the truck struck a portion of the bridge railing. The railing allegedly impaled Bell, and a lower portion of railing ruptured the gas tank causing the pickup to burst into flames. Due to the truck's continued momentum, and allegedly because of poor quality of maintenance and repair, the railing gave way and allowed the truck to plunge down an embankment to the creek below turning upside down as it traveled. Adams claimed, inter alia, that the County negligently installed, repaired and maintained the bridge and the railings. Adams alleged that when the bridge was rebuilt in August 1990, the County failed to obtain a performance bond as required by law and that County liability accrued under OCGA §§ 32-4-70 and 32-4-71(b).

In opposition to summary judgment, Adams presented evidence that the welds affixing the horizontal portions of the rail to the vertical portions were faulty due to improper welding at the time of construction, the County used improper welding equipment and untrained prison laborers performed some welding repairs. One of Adams' experts, James Burke, testified that when the defective welds gave way, instead of stopping the truck, the railing penetrated the truck and the driver. The expert testified that had the rail been properly welded, it would have collapsed upon impact in an accordion-like fashion instead of piercing the truck. Burke opined that the truck would likely have remained on the bridge and sustained moderate front end damage. Burke testified that the defective welds were obvious, discoverable upon visual inspection, and that some welds were so deficient as to have been only ten percent effective. Another expert, Carl Matricardi, testified that the welds were poorly done and not complete, and that the "fact the weld was missing allowed that thing to literally spear through the vehicle." Matricardi attested that had the railing been properly welded, the metal would have twisted, slowing the vehicle down or stopping it. Thierry, the only adult passenger, testified that Bell braked, straightened the truck's path, and seemed to have regained control of the vehicle just as it hit the rail. According to a Georgia DOT inspection report, which the DOT provided to the County, the railings on the bridge were non-conforming to American Association of State Highway and Transportation Officials (AASHTO) guidelines which were in effect at the time of the DOT's inspection. ³ Although the County alleges eight enumerations, its appeal focuses on the issues of negligence and proximate cause. Held:

At the outset, we emphasize the unique factual circumstances underlying this case. First, the incident at issue occurred on November 11, 1990, prior to the effective date of the 1991 amendment to Art. I, Sec. II, Par. IX of the Ga. Constitution of 1983, and therefore, Coweta County is not entitled to sovereign immunity. Adams v. Coweta County, 208 Ga.App. 334(1), 430 S.E.2d 599 (1993). Second, with respect to the alleged maintenance and repair defects, the County conceded its liability under OCGA § 32-1-3, stating, "Coweta County acknowledges that it may be liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities." ⁴ The holding of this case is obviously restricted to these most unusual facts, and will not judicially create liability for counties in Georgia for negligence claims relating to bridges or bridge railings. Under current law, negligent bridge claims are essentially foreclosed by sovereign immunity, and no county liability was created by OCGA § 32-4-1 et seq. Kordares v. Gwinnett County, 220 Ga.App. 848, 470 S.E.2d 479 (1996). Contrary to the mistaken alarm sounded by the dissent, nothing in the holding here requires counties to bring non-conforming public structures up to national standards nor mandates any change in governmental liability. In fact, the holding of Kordares, supra, effectively precludes the far-reaching liability implications purportedly feared by the dissent.

1. Adams' evidentiary showing of disputed issues of material fact regarding the County's alleged negligence precludes summary judgment. Adams' evidence was that the County occasionally used untrained prison laborers to do welding repairs on the bridge, the welding had been improperly performed, the defective welding created a dangerous condition and the railing failed to conform with industry standards. Because there are unresolved issues of material fact as to the County's alleged negligent construction, maintenance and repair of the railing at issue, the trial court's denial of summary judgment to the County on the issue of negligence was proper. Storer Communications v. Burns, 195 Ga.App. 230, 393 S.E.2d 92 (1990).

2. The trial court correctly determined that proximate cause under these facts is an issue for jury determination. The County contends that regardless of any alleged negligence on its part, it cannot be held liable because any act or omission on its part did not proximately cause the injuries. Although the County conceded statutory liability under OCGA § 32-1-3, for injuries caused by reason of defective bridges, it claimed that its statutory duty was only to "construct and maintain" the bridge in "a workman-like manner" so that the bridge could be used in ordinary travel but not for extraordinary occasions such as where a sudden emergency causes the driver to lose control of the vehicle. McDaniel v. Southern R. Co., 130 Ga.App. 324, 203 S.E.2d 260 (1973). However, whether the bridge was constructed and maintained in a "workman-like manner" is disputed. See Division 1.

The County's reliance on McDaniel is misplaced because in that case, the driver's act of falling asleep was determined to be the sole proximate cause of the accident. Id. at 326, 203 S.E.2d 260. Because a county had no duty to anticipate a sleeping driver operating a vehicle on a bridge, we determined that specific activity fell within the "domain of the unusual and extraordinary" and was unforeseeable as a matter of law. Id. In this case, as the trial court noted, a blown tire is not an unusual or extraordinary occurrence, and "guard rails are often placed upon bridges for the very reason that it is foreseeable that a driver may lose control of his vehicle and leave the roadway." Moreover, in McDaniel, there was no defect in the bridge which was a contributing cause toward rendering the vehicle uncontrollable. Id. Whereas in this case, Thierry testified that as Bell was in the process of regaining control of the vehicle, she was impaled by a portion of railing, which if true, could have been a contributing cause toward rendering her vehicle uncontrollable. Nor can it be said as a matter of law that it was unforeseeable that the rail's inability to properly collapse would cause injury when the rail was struck by a driver whose vehicle left the roadway.

Nor would a different result be demanded by the case relied upon by the dissent, Ga. Power Co. v. Collum, 176 Ga.App. 61, 63(3), 334 S.E.2d 922 (1985). In Collum, the pivotal issue was not "ordinary use" of the roadway but proximate cause and foreseeability. Id. In that case, we employed a foreseeability analysis and determined that proximate cause was lacking because no act of Georgia Power was the cause of Collum's injuries since the separate and independent act of an earlier driver, who struck and broke a utility pole knocking a span guy wire into the roadway, broke the chain of causation to Collum's injuries. Id. at 64(3), 334 S.E.2d 922. Questions of proximate cause are peculiarly reserved for jury determination except in clear, plain, and undisputed cases. Lozynsky v. Hutchinson, 159 Ga.App. 715, 285 S.E.2d 70 (1981); Lockhart v. Walker, 124 Ga.App. 241, 183 S.E.2d 503 (1971). This is not such a case.

Finally, we reject the County's conclusory position that Bell's loss of control of the truck was the sole proximate cause of the injuries sustained. A jury must determine whether the combined negligence of the County and another party caused the injuries at issue. See Burns, 195 Ga.App. at 232, 393 S.E.2d 92. Where separate and distinct but concurrent acts or omissions of negligence of different parties are the proximate cause of one indivisible injury, compensation for the entire loss may be...