Department of Transp. v. Dupree, A02A1573.

• Court: United States Court of Appeals (Georgia)
• Citation: 570 S.E.2d 1,256 Ga. App. 668
• Docket Number: No. A02A1573.,A02A1573.
• Parties: DEPARTMENT OF TRANSPORTATION v. DUPREE et al.
• Decision Date: 24 July 2002

570 S.E.2d 1
256 Ga. App. 668

DEPARTMENT OF TRANSPORTATION
v.
DUPREE et al

No. A02A1573.

Court of Appeals of Georgia.

July 24, 2002.

Certiorari Denied October 15, 2002.

570 S.E.2d 3

Thurbert E. Baker, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., Loretta L. Pinkston, Senior Asst. Atty. Gen., Robert C. Edwards, Asst. Atty. Gen., for appellant

Johnson & Ward, William D. deGolian, William C. Lanham, Clark H. McGehee, Atlanta, for appellees.

570 S.E.2d 2

ELDRIDGE, Judge

The Georgia Department of Transportation appeals from a judgment in a negligent design malpractice wrongful death action entered upon a jury verdict against it and in favor of Carolyn W. Dupree, administratrix of the estate of Betty N. Lamb, and for Samuel Lamb, husband of the deceased. Finding no merit to the appeal, we affirm.

At approximately 7:20 p.m. on November 25, 1996, a cloudy and overcast night, at the intersection of State Route 14 and High Point Road in Union City, Betty Lamb, a pedestrian, attempted to cross SR 14 (Roosevelt Highway, U.S. 29) going from east to west; when she [256 Ga. App. 669] was near the western curb of the five-lane highway, Mrs. Lamb was struck and killed by a motorist going south in the west curb lane. SR 14 is 62 feet wide at this point and had been widened from 24 feet. The sight distance from the north to south at the intersection was between 250 and 320 feet. Generally accepted design and engineering standards recommend a sight distance of 550 feet for an intersection where approaching speed is 45 mph. SR 14 runs in a north-south direction, and the motorist was driving at 45 mph south, a car length behind a van, and both were in the same lane. Immediately before the intersection, the van suddenly swerved to the southbound inside lane without signaling. Mrs. Lamb was wearing dark blue slacks and jacket and black boots. There were no marked crosswalks at the intersection. The

570 S.E.2d 4

ambient light enshadowed but did not illuminate Mrs. Lamb. The motorist never saw Mrs. Lamb prior to striking her.

Beginning in October 1986, DOT began widening SR 14 from two to five lanes in the vicinity of and including the intersection as the Widening Project. As part of the Widening Project, DOT considered in the overall design the types of traffic controls to place at the intersection, which included whether or not to install a traffic signal there. Prior to October 1986, the final revision of the Widening Project plans and design was completed, and the final design negligently did not include a traffic control device at the intersection although this would negatively affect both motorists and pedestrians crossing. In August 1987, the Widening Project was completed without a traffic control signal at the intersection. In 1996, the intersection still had no traffic light prior to the death, and the closest traffic control device to slow traffic was nearly two miles away in either direction.

Since 1987, Union City had repeatedly sought a permit from DOT to install a traffic control light at the intersection, because the intersection had a high collision rate. The Manual of Uniform Traffic Control Devices ("MUTCD") adopted by DOT required a traffic engineering study prior to any determination to permit a traffic light. In 1987 and 1988 DOT performed such traffic engineering studies to evaluate the need for the issuance of a traffic signal permit and to determine its operational design. This MUTCD standard does not fall within the mandatory installation of traffic control devices but in the advisory area; it only recommends such installation. MUTCD contained "warrants" which describe conditions indicating the need for a traffic signal. Even where warrants existed justifying installation of such traffic signal, DOT did not permit the installation of a traffic control device until after the death. The basis for DOT's refusal from 1986 until 1996 to issue a permit was that there was no vehicle backup or delay at this intersection from its studies. Again in 1996, Union City requested a signal here, and DOT performed yet another traffic engineering study of the intersection. On November [256 Ga. App. 670] 20, 1996, the district field personnel recommended a signal be installed at the intersection. After November 25, 1996, DOT issued Union City the permit to install a traffic signal at this intersection. Such studies done after the completion of the Widening Project demonstrated that the traffic control device should have been included in the original planning and design to protect crossing pedestrians and to avoid collisions.

Here, SR 14 had been widened from two to five lanes, but DOT took the position that the additional through lanes created easier access from side streets through gaps in the traffic flow on the main roadway, avoiding traffic congregation, and that the intersection functioned more safely and efficiently without the presence of a stop and go traffic signal. Thus, DOT took the position that its denial of a signal was based upon sound engineering judgment, which it contended was based upon generally accepted engineering design standards and practices, because there was no problem with backup or delay, which was its primary criterion and concern.

However, plaintiffs' evidence demonstrated that DOT committed design and engineering malpractice in 1986 in omitting the traffic control device, in having too short a sight distance to the intersection, in having too wide an intersection for pedestrian crossing within the sight distance, and in allowing uninterrupted vehicle approach speeds of 45 mph. In 1986, there was one accident there, and six in 1987. DOT treated these as occurring during the construction process, which was a different factor. Plaintiffs' expert testified that during the eighteen months of the study period prior to October 13, 1987, there had been ten angle accidents and six other types of accidents at the intersection.

Attached to the complaint was an adequate and complete OCGA § 9-11-9.1 expert affidavit, which opined that the DOT design was negligently done through malpractice in design without the traffic control device, deviating from generally accepted engineering standards for pedestrian and vehicle safety. At trial, the plaintiffs' expert opinion evidence showed that the original Widening Project's designs and plans without a traffic

570 S.E.2d 5

signal at the intersection, the approach speed of 45 mph, and a deficient sight distance negligently violated generally accepted engineering standards and practices at that time.

In 1996, when DOT determined the approval of the installation of a traffic signal, it issued a permit to the local government specifying the signal design plan and the equipment to be installed, assigning maintenance responsibility, securing power services, and allocating funding resources for installation and operation of the signal.

1. DOT contends that the trial court erred in denying DOT's motion to dismiss for lack of subject matter jurisdiction on grounds of sovereign immunity. We do not agree for a number of reasons.

[256 Ga. App. 671] DOT's first motion to dismiss was for failure to state a claim upon which relief can be granted and raised lack of waiver of sovereign immunity, an OCGA § 9-11-12(b)(6) motion on the merits. The trial court considered the motion to dismiss as an OCGA § 9-11-12(b)(6) motion on the merits and properly denied the motion. DOT's application for interlocutory appeal was denied by this Court.

Subsequently, DOT made a motion to dismiss for lack of subject matter jurisdiction on the grounds of sovereign immunity and filed an affidavit with DOT's traffic studies. The deposition and affidavit of plaintiffs' expert Herman A. Hill, civil engineer, were filed in which he set out the basis for his opinion that DOT committed engineering and design malpractice. On April 19, 2001, after an OCGA § 9-11-12(d) hearing, the trial court, after considering all the evidence on the OCGA § 9-11-12(b)(1) motion to dismiss, denied it. This Court again denied an interlocutory appeal.

Under OCGA § 9-11-12(b)(1), a defendant can raise a plea in abatement, which is not an adjudication on the merits, that raises the issue of the lack of subject matter jurisdiction in the trial court, but the grant of such motion only causes a dismissal of such action from the court without subject matter jurisdiction or until the condition precedent for subject matter jurisdiction has been satisfied, and the action can then be refiled. See generally Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615, 208 S.E.2d 459 (1974); Kim v. Dept. of Transp., 235 Ga.App. 480, 481-482(2), 510 S.E.2d 50 (1998); Hight v. Blankenship, 199 Ga.App. 744, 745, 406 S.E.2d 241 (1991); Taco Bell Corp. v. Calson Corp., 190 Ga.App. 481, 483, 379 S.E.2d 6 (1989) (physical precedent only); Theo v. Nat. Union Fire Ins. Co., 99 Ga.App. 342, 347-348(3), 109 S.E.2d 53 (1959). Sovereign immunity of a state agency is not an affirmative defense, going to the merits of the case, but raises the issue of the trial court's subject matter jurisdiction to try the case, and waiver of sovereign immunity "must be established by the party seeking to benefit from that waiver"; thus, the plaintiffs had the burden of establishing waiver of sovereign immunity. Bd. of Regents &c of Ga. v. Daniels, 264 Ga. 328, 329, 446 S.E.2d 735 (1994); see also Sherin v. Dept. of Human Resources, 229 Ga.App. 621, 625(4), 494 S.E.2d 518 (1997). With the deposition and affidavit of their expert witness, the plaintiffs carried their burden of proof on a motion to dismiss under OCGA § 9-11-12(b)(1) by showing DOT's malpractice.

"Jurisdiction of a court to afford the relief sought is a matter which should be decided preliminarily, at the outset. Jurisdiction either exists or does not exist without regard to the merit[s] of the case." Whitlock v. Barrett, 158 Ga.App. 100, 103, 279 S.E.2d 244 (1981); accord Kidd v....