Dep't of Transp. v. Thompson

• Decision Date: 09 March 2020
• Docket Number: A19A1912
• Citation: 354 Ga.App. 200,840 S.E.2d 679
• Parties: DEPARTMENT OF TRANSPORTATION v. THOMPSON et al.
• Court: Georgia Court of Appeals

354 Ga.App. 200

840 S.E.2d 679

DEPARTMENT OF TRANSPORTATION

v.THOMPSON et al.

A19A1912

Court of Appeals of Georgia.

March 9, 2020

Ronald Steve Boyter Jr., Christopher Michael Carr, Kathleen M. Pacious, Atlanta, Lori Denise Nash, Angela Ellen Cusimano, for Appellant.

Michael H. Cummings II, for Appellee.

Brown, Judge.

This interlocutory appeal arises out of an action by Carol and John Thompson, individually, and as parents and next friends of their two children ("the Thompsons"), against the Georgia Department of Transportation ("DOT"), asserting claims of negligence arising out of a collision in which Carol and the two children suffered severe injuries. DOT appeals from the trial court’s order denying its motion to dismiss based on sovereign immunity. For the reasons set forth below, we vacate the trial court’s order denying DOT’s motion to dismiss, and remand this case to the trial court.¹

"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 [any] evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity." (Citation and punctuation omitted.) Ga. Dept. of Transp. v. Owens , 330 Ga. App. 123, 133 (4), 766 S.E.2d 569 (2014).

So viewed, the record shows that on June 16, 2014, Carol and her two children were traveling south on Cleveland Highway (State Route 11), near its intersection with Jess Helton Road. Cleveland Highway is a two-lane highway, however, at that time and location, on the northbound side of the roadway — as the highway approached Jess Helton Road — there was a left-hand passing lane.² As Carol approached the intersection, a vehicle traveling north on Cleveland Highway was waiting in the passing lane to turn left onto Jess Helton Road. A third vehicle, traveling north on Cleveland Highway in the passing lane, swerved to avoid hitting the vehicle turning left, traveled into the right northbound lane and onto the shoulder of the highway, lost control of the vehicle, and struck Carol’s vehicle, causing serious injuries.

The Thompsons sued DOT under the Georgia Tort Claims Act ("GTCA"), OCGA § 50-21-20 et seq., alleging that DOT was negligent in the design, building, and maintenance of Cleveland Highway at its intersection with Jess Helton Road. Specifically, the Thompsons allege that DOT failed to provide the minimum required sight distance for drivers approaching the intersection; failed to post adequate and sufficient speed warnings; and failed to provide and/or maintain the shoulder of the highway at a proper slope. Pursuant to OCGA § 9-11-9.1, the Thompsons attached to their complaint the affidavit of engineer Herman Hill. In that affidavit, Hill opined that DOT failed to provide minimum required sight distance for drivers at the location of the Thompsons’ accident, and that DOT was aware of the history of accidents and failed to address the problem.

DOT filed a motion to dismiss for lack of subject matter jurisdiction, asserting that the Thompsons’ claims are barred by the discretionary function and design exceptions to the State’s waiver of sovereign immunity. See OCGA § 50-21-24 (2), (10). Following a hearing on the motion, during which Hill testified, the trial court denied the motion, finding that (1) while maintenance of the shoulder arguably falls under the policy category such that the discretionary exception might apply, the Thompsons have put forth expert testimony that the shoulder condition violated DOT maintenance standards, and (2) DOT did not rebut Hill’s opinion that DOT committed engineering and design malpractice, which led to the Thompsons’ injuries. DOT appeals this ruling.

Pursuant to Article I, Section II, Paragraph IX (e) of the Georgia Constitution of 1983,

sovereign immunity from suit extends to all state departments and agencies unless properly waived through an act passed by the General Assembly. Sovereign immunity is waived by a legislative act only if the statutory language specifically provides that sovereign immunity is waived and the extent of such waiver.

(Citation and punctuation omitted.) Ga. Dept. of Transp. v. Balamo , 343 Ga. App. 169, 170 (1), 806 S.E.2d 622 (2017). The doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed. Id. at 171 (1), 806 S.E.2d 622. The GTCA declares the public policy of this state to be that "the state shall only be liable in tort actions within the limitations" set out in the GTCA. OCGA § 50-21-21 (a).

Consequently, although the [GTCA] waives the state’s sovereign immunity, OCGA § 50-21-23, that waiver is limited by certain specified exceptions and limitations, which are also set forth in the [GTCA]. Or, stated succinctly, the state is only liable in tort actions within the limitations of the [GTCA]. Further, any suit brought to which an exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction. The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver. ...

(Citation and punctuation omitted.) Diamond v. Ga. Dept. of Transp ., 326 Ga. App. 189, 190 (1), 756 S.E.2d 277 (2014). Under the GTCA, "[t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment. ..." OCGA § 50-21-23 (a). There are several exceptions to the state’s waiver of sovereign immunity, including the design exception which states that "[t]he state shall have no liability for losses resulting from ... [t]he plan or design for construction of or improvements to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design ." (Emphasis supplied.) OCGA § 50-21-24 (10). The other exception to the state’s waiver of sovereign immunity raised in this case is the discretionary function exception which provides that "[t]he state shall have no liability for losses resulting from ... [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused." OCGA § 50-21-24 (2). A discretionary function or duty is defined in OCGA § 50-21-22 (2) and "means a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors." See Hagan v. Ga. Dept. of Transp ., 321 Ga. App. 472, 475 (1), 739 S.E.2d 123 (2013). Whether DOT is entitled to sovereign immunity under either or both of these exceptions "is a threshold issue that the trial court [is] required to address before reaching the merits of any other argument." (Citations and punctuation omitted.) Gonzalez v. Ga. Dept. of Transp ., 329 Ga. App. 224, 225, 764 S.E.2d 462 (2014).

Here, the Thompsons’ expert, Herman Hill, testified that Cleveland Highway originally was planned in 1922 as a two-lane road, and redesigned in 1973 to add three passing lane locations, one of which was located near Jess Helton Road heading northbound out of Gainesville toward Dahlonega. According to Hill, the redesign did not change any of the alignment, curvature, or slopes on the roadway, but created a potential problem at the location of the Thompsons’ accident because vehicles waiting to turn left onto Jess Helton Road from Cleveland Highway could be at a dead stop in the left passing or "fast lane," and not easily seen by advancing cars traveling in that passing lane. During the hearing on DOT’s motion to dismiss, Hill testified on direct examination that the speed limit on Cleveland Highway is 55 miles per hour, which requires approximately 495 feet of stopping sight distance³ based on the 1965 American Association of State Highway and Transportation Officials ("AASHTO") standards, applicable to this case. Hill opined that a driver in the left passing lane did not have sufficient sight distance to stop at the intersection, such that the roadway was not in substantial compliance with the "generally accepted engineering design standards in effect at the time of the [re]design, [in] ‘73."⁴ During his deposition, however, Hill testified that pursuant to the 1965 AASHTO standards, the minimum stopping sight distance at this location was in the "ballpark" of at least 410 feet, and that this standard had been met.⁵ As he further explained during the hearing, a vehicle traveling 50 miles per hour must have a minimum stopping sight distance of 350 feet, and a vehicle traveling 60 miles per hour must have 475 feet. Hill also confirmed in his deposition that the 1973 redesign plans met AASHTO’s minimum stopping sight distance requirements. On cross-examination, Hill testified that on the date of the Thompsons’ accident "the measured sight distance available to a driver" traveling northbound in the center lane was "in the vicinity of 500 feet," which exceeded the minimum requirements set forth in the 1965 AASHTO standards.

As to the signage on the roadway, Hill testified that a warning sign prior to the intersection instructed "merge left" or "move to the left," but did not indicate that vehicles could be turning from the left lane onto Jess Helton Road. Hill also stated that there was a "standard[-]T" yellow diamond warning sign informing drivers that there was an intersecting road ahead, but he explained that there was another road intersecting Cleveland Highway before Jess Helton Road and that drivers could interpret the sign as applying to the first intersection. According to Hill, sign standards are governed by the Manual on Uniform Traffic Control Devices ("MUTCD"), which requires warning signs...