Donaldson v. Department of Transp., A99A0180.

• Decision Date: 26 January 1999
• Docket Number: No. A99A0180.,A99A0180.
• Citation: 511 S.E.2d 210,236 Ga. App. 411
• Parties: DONALDSON et al. v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

511 S.E.2d 210

236 Ga. App. 411

DONALDSON et al. v. DEPARTMENT OF TRANSPORTATION.

No. A99A0180.

Court of Appeals of Georgia.

January 26, 1999.

Reconsideration Denied February 11, 1999.

Certiorari Denied May 14, 1999.

Timmons, Haggard & Carney, John W. Timmons, Jr., Athens, for appellants.

Thurbert E. Baker, Attorney General, Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, Kim T. Stephens, Athens, for appellee.

ELDRIDGE, Judge.

At 5:45 p.m. on Thursday, April 25, 1996, Mary A. Donaldson, plaintiff-appellant, was a passenger in a motor vehicle traveling north on State Highway 53 in Winder, Georgia, which vehicle was struck by another vehicle coming south on State Highway 11 at the intersection of the two roads. This was a "Y" intersection called a "branch intersection." Highway 53 branched to the northwest, while Highway 11/211 branched to the northeast. The base had two northbound lanes for Highways 11 and 53 and one southbound lane for 11 and 53 at the intersection. Normally, there were yield markings and signs for northbound traffic on Highway 53 to yield to southbound traffic on Highway 11, which had the right-of-way. The center northbound lane for Highway 53 previously had a yield marking on the roadway before the intersection, while the northbound curb lane for Highway 11 turned to the northeast at the intersection.

On March 12, 1996, the Georgia Department of Transportation ("DOT") began a resurfacing project on Highways 11 and 53. On April 17, 1996, when the highway contractor ceased repaving and secured for the day, there were no yield signs or control devices left in place to control the intersection. The collision at issue in this case occurred at the intersection where the resurfacing had obliterated any surface markings. Plaintiffs, Mrs. Donaldson and her husband, Jack David Donaldson, sued DOT for negligently failing to mark the intersection during construction at the intersection, proximately causing the collision. The case was tried to a jury, and on November 5, 1997, the jury returned a verdict for DOT. The plaintiffs moved for a new trial, which was denied. Plaintiffs timely appeal.

1. Plaintiffs' first enumeration of error is that the trial court erred in failing to grant plaintiffs' motion for directed verdict on the issue of negligence per se. We do not agree.

(a) OCGA § 32-6-50(b) reads in pertinent part "[i]n conformity with its uniform regulations, the department [(DOT) ] shall place and maintain, or cause to be placed and maintained, such traffic-control devices upon the public roads of the state highway system as it shall deem necessary to regulate, warn, or guide traffic[.]" Plaintiffs contend that this statutory provision is mandatory, creating negligence per se for DOT's failure to maintain properly traffic control signage at this intersection during construction.

"`Generally, statutes directing the mode of proceeding by public officers, designed to promote method, system uniformity, and dispatch in such proceeding, will be regarded as directory if a disregard thereof will not injure the rights of parties, and the statute does not declare what result shall follow non-compliance therewith, nor contain negative words importing a prohibition of any other mode of proceeding than that prescribed.'... `When the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory.' " (Citations omitted.) Southern Security Co. v. American Discount Co., 55 Ga.App. 736, 740, 191 S.E. 258 (1937); see also Jordan v. State, 223 Ga.App. 176, 182(2), 477 S.E.2d 583 (1996).

OCGA § 32-6-50(b) was enacted by the General Assembly as part of the Uniform Act Regulating Traffic On Highways to control use of the state roads by DOT or by state-wide traffic laws. Ga. L.1953, Nov.-Dec. Sess., pp. 556, 568-569, §§ 31-32. Non-compliance by DOT does not exact a penalty under the statute and produces no injury to individual rights, i.e., rights of parties. The express language of the statute delegates discretionary powers to DOT to promulgate uniform regulations governing traffic control devices and to carry out its discretion to place control devices in a particular location. OCGA § 32-6-50(a), (b). Thus, no standard of non-discretionary conduct is mandated that can be the basis for negligence per se.

(b) Plaintiffs contend that the Manual On Uniform Traffic Control Devices ("MUTCD") establishes clear standards for negligence per se. However, the MUTCD was not tendered into evidence at trial and is not part of the record on appeal, although it was incorporated by reference as part of the repaving contract, which itself was not tendered. However, two pages of the MUTCD, § 150.01, Exhibit P-6, were admitted into evidence, but not included in the record on appeal.

Volume 10 of the Official Compilation of the Rules & Regulations of the State of Georgia, Part 2, Chapter 672 et seq., Rules of the State Department of Transportation contains no rules or regulations governing placement of traffic control devices, either permanently or temporarily, during construction or resurfacing. Neither do such DOT regulations adopt by reference the MUTCD. Unlike the regulations in Walter v. Orkin Exterm. Co., 192 Ga.App. 621, 622-623(1), 385 S.E.2d 725 (1989), MUTCD has not been published by authority by the Secretary of State as State-adopted regulations and therefore, does not have the force of law.

Through the Code of Federal Regulations, the MUTCD can be established applicable standard of care under proper facts, i.e., Federal-aid highways, and this would authorize judicial notice to be taken of it upon proper request. 23 CFR Subpart F, § 655.603, pp. 251-252, reads: "Standards— (a) National MUTCD. The MUTCD approved by the Federal Highway Administrator is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel in accordance with 23 U.S.C. 109(d) and 402(a). The national MUTCD is specifically approved by the FHWA for application on any highway project in which Federal highway funds participate and on projects in federally administered areas where a Federal department or agency controls the highway or supervises the traffic operations. (b) State or other Federal MUTCD. (1) Where State or other Federal agency MUTCDs or supplements are required, they shall be in substantial conformance with the national MUTCD. Changes to the national MUTCD issued by the FHWA shall be adopted by the States or other Federal agencies within 2 years of issuance. The FHWA Regional Administrator has been delegated the authority to approve State MUTCDs and supplements .... (d) Compliance—(1) Existing highways. Each State, in cooperation with its political subdivisions, and Federal agencies shall have a program as required by Highway Safety Program Standard Number 13, Traffic Engineering Services (23 CFR 1204.4) which shall include provisions for the systematic upgrading of substandard traffic control devices and for the installation of needed devices to achieve conformity with the MUTCD. (2) New or reconstructed highways. Federal-aid projects for the construction, reconstruction, resurfacing, restoration, or rehabilitation of streets and highways shall not be opened to the public for unrestricted use until all appropriate traffic control devices, either temporary or permanent, are installed and functioning properly. Both temporary and permanent devices shall conform to the MUTCD. (3) Construction area activities. All traffic control devices installed in construction areas using Federal-aid funds shall conform to the MUTCD. Traffic control plans for handling traffic and pedestrians in construction zones and for protection of workers shall conform to the requirements of 23 CFR part 630, subpart J, Traffic Safety in Highway and Street Work Zones." "Material Approved for Incorporation by Reference... The Director of the Federal Register has approved under 5 U.S.C. 552(a) and 1 CFR Part 51 the incorporation by reference of the following publications.... Federal Highway Administration ... Manual on Uniform Traffic Control Devices for Streets and Highways, FHWA." 23 CFR pp. 497-498.

While the MUTCD was published by authorization under the Code of Federal Regulations, so that judicial notice can be taken of it, there was no evidence that this was a Federal-aid highway so that the MUTCD would be applicable and have the force of law in this case. See Walter v. Orkin Exterm. Co., supra at 622-623(1), 385 S.E.2d 725. Had the evidence shown this to be a Federal-aid road, then the plaintiffs could have requested that the trial court take judicial notice of the MUTCD. However, as a practical matter, they would still have to tender a copy of the MUTCD to perfect the record so that it would be before the trial court and this Court, even though judicial notice could be taken of it. This is because the MUTCD is only part of the CFR by reference and available from the Federal Highway Administration. But, absent a request or prior notice to the parties, the trial court is prohibited from taking judicial notice of the MUTCD. In this case, there was no request for judicial notice to be taken of the MUTCD by any party. See Graves v. State, 269 Ga. 772, 504 S.E.2d 679 (1998).

The DOT project engineer and plaintiffs' expert witness identified the MUTCD and testified regarding the applicable standards to establish the minimum standard of ordinary care, but this testimony failed to establish such standards as mandatory regulations for purposes of negligence per se. OCGA § 32-6-50(a) directs that "[i]nsofar as practical, with due regard to the needs of the public roads of Georgia, such uniform regulations shall conform to the recommended regulations as approved by the ...