Diamond v. Dep't of Transp.

• Decision Date: 13 March 2014
• Docket Number: A13A1742.,Nos. A13A1741,s. A13A1741
• Citation: 756 S.E.2d 277,326 Ga.App. 189
• Parties: DIAMOND v. DEPARTMENT OF TRANSPORTATION (two cases).
• Court: Georgia Court of Appeals

326 Ga.App. 189

756 S.E.2d 277

DIAMOND

v.DEPARTMENT OF TRANSPORTATION (two cases).

Nos. A13A1741, A13A1742.

Court of Appeals of Georgia.

March 13, 2014.

Charles H. McAleer, Robert Scott Christopher, for Appellants.

Robert Lee Bunner, Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., for Appellee.

McFADDEN, Judge.

Christy and Jay Diamond each filed a negligence action against several defendants, including the Department of Transportation (“DOT”). The DOT filed a motion to dismiss and for summary judgment in each case, arguing that certain claims were barred by the doctrine of sovereign immunity and that it owed no duty to the plaintiffs. The trial court dismissed the Diamonds' claims of negligent inspection on sovereign immunity grounds and granted summary judgment to the DOT on the remaining claims, including the negligent failure to include adequate signs or other warning devices on the roadway and the negligent failure to construct the roadway so as to diminish the appearance of its being a functioning roadway, due to lack of duty.

We have combined the Diamonds' appeals for purposes of this opinion. They argue that the DOT's waiver of immunity on their negligent design claims also waived immunity on their negligent inspection claims. But we find that a waiver of immunity on one claim does not amount to a waiver of immunity on all claims. The Diamonds also argue that whether the DOT owed them a duty to notify them that the roadway was no longer operable is a fact question. But whether a party owes another a duty is a legal question. And the Diamonds have pointed to no statutory or case law authority demonstrating that the DOT owed them a duty in the circumstances of this case. We therefore affirm.

The Diamonds were injured when their car plunged into a ditch. At the time of the accident, a road construction project was underway in the area. As part of the project, a county road, Lakeshore Drive, was rerouted. Mr. Diamond drove the car on what he thought was Lakeshore Drive but was actually a grassy area where the road formerly had existed but then had been removed. The Diamonds continued along for 90 to 100 feet on the grass and dirt surface before plunging into the ditch.

1. Sovereign immunity.

The Diamonds argue that the trial court erred in dismissing their negligent inspection claims because the DOT's waiver of immunity on the negligent design claims also waived immunity on the negligent inspection claims. We disagree.

The Georgia Constitution authorizes the legislature to waive the state's sovereign immunity. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (a) and (e). The Georgia Tort Claims Act, OCGA § 50–21–20 et seq., 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 Act. OCGA § 50–21–21(a). Consequently,

[a]lthough the [Act] 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 [Act]. Or, stated succinctly, the state is only liable in tort actions within the limitations of the [Act]. 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, and the trial court's pre-trial ruling on factual issues necessary to decide the OCGA § 9–11–12(b)(1) motion is reviewed on appeal under the any evidence rule.

Hagan v. Ga. Dept. of Transp., 321 Ga.App. 472, 474–475(1), 739 S.E.2d 123 (2013) (citations and punctuation omitted).

Under the Act, the state waives its sovereign immunity

for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state's sovereign immunity is waived subject to all exceptions and limitations set forth in this article. The state shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment.

OCGA § 50–21–23(a). An exception to the state's waiver of sovereign immunity concerns losses resulting from inadequate or negligent inspections of non-state property. OCGA § 50–21–24(8) provides that

[t]he state 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 state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.

In accordance with the exception set out in this provision, the trial court granted the DOT's motion to dismiss the Diamonds' claims to the extent they were based on a theory of negligent inspection of the county-owned area in which the accident occurred. The Diamonds argue that the trial court erred because the DOT's waiver of sovereign immunity on their negligent design claim, see OCGA § 50–21–24(10) (waiving immunity for losses resulting from construction design that is not prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design), means that it also waived immunity on the negligent inspection claim.

The DOT argues that simply because it may have waived immunity on the design claim does not mean that it waived immunity on the inspection claim. We agree. We so held in Reidling v. City of Gainesville, 280 Ga.App. 698, 701–703(1), 634 S.E.2d 862 (2006). In that case, the trial court granted summary judgment to the DOT on the plaintiffs' claims for both negligent design and negligent inspection. We reversed the grant of summary judgment on the negligent design claim but affirmed the grant of summary judgment on the negligent inspection claim. The plaintiffs had contended that the DOT's design plans for a road project did not comply with generally accepted engineering and design standards and that the DOT either negligently approved a disposal site for the excess fill soil from the construction site or negligently inspected the site. We held that whether the DOT's design plans complied with generally accepted engineering and design standards, thereby supporting a waiver of sovereign immunity under OCGA § 50–21–24(10), was a fact question. Id. But we expressly affirmed the grant of summary judgment to the DOT on the claim that the DOT either negligently approved the disposal site for the excess fill soil or negligently inspected the site, agreeing with the trial court that these claims were barred by OCGA § 50–21–24(8) and (9). Id. at 703(1), 634 S.E.2d 862. In short, we held that the DOT waived sovereign immunity on some but not all claims. We did not hold, as the Diamonds would have it, that a waiver of immunity on some claims amounts to a waiver of immunity on all claims.

The Diamonds cite Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 674 S.E.2d 914 (2009), in support of their argument that a waiver of immunity under one provision of the Tort Claims Act waives immunity for all claims asserted. But Heller does not so hold. The Diamonds' argument reverses the argument at issue in Heller. There the DOT argued that, “as long as any one of the causes connected to a plaintiff's loss is a cause for which the [s]tate would be immune from suit, the [s]tate would always be immune from any suit stemming from such loss.” Id. at 266(1), 674 S.E.2d 914.

In Heller, the plaintiff's wife was killed when the taxicab in which she was riding “spun out of control on a rain-slick interstate highway and hit a tree.” Id. at 262, 674 S.E.2d 914. The plaintiff alleged that the day before, the tires of the taxicab had been inadequately inspected and that the inspector had failed to suspend the taxi's operating permit. He also presented evidence that “the DOT may have failed to maintain a proper clear zone for trees located near the edge of the highway, in possible violation of generally accepted engineering standards for the highway and standards set by the DOT itself.” Id. at 265(1), 674 S.E.2d 914. The DOT argued that it could not be subjected to liability because the plaintiff's loss resulted, at least in part, from either inadequate inspection or improper permitting of the taxicab in which his wife was killed. Under OCGA § 50–21–24(8) and (9), the state is not liable for losses resulting from “[i]nspection powers or functions” or from “[l]icensing powers or functions.” Our Supreme Court observed, however, that “these exceptions were not the only provisions of the Tort Claims Act that were at issue in this case.” Id. at 264(1), 674 S.E.2d 914. The state could be liable under OCGA § 50–21–24(10), the design standards exception, which provides:

The state shall have no liability for losses resulting from ... [t]he plan or design for construction of or improvement 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[.]

The court concluded that “[b]ecause [the] second event[, the allegedly improper highway design,] leading to the loss [did] not fall within any exception to the [s]tate's waiver of sovereign immunity, ... the [s]tate ha [d] waived its sovereign immunity in connection with the car accident that led to [the plaintiff's wife's] death.” Id. at 265(1), 674 S.E.2d 914. The court did not expressly address whether the plaintiff could pursue his claims for negligent inspection and negligent permitting, notwithstanding...