Ga. Dep't of Transp. v. Wyche

• Decision Date: 25 June 2015
• Docket Number: No. A15A0346.,A15A0346.
• Citation: 332 Ga.App. 596,774 S.E.2d 169
• Parties: GEORGIA DEPARTMENT OF TRANSPORTATION v. WYCHE.
• Court: Georgia Court of Appeals

332 Ga.App. 596

774 S.E.2d 169

GEORGIA DEPARTMENT OF TRANSPORTATION

v.WYCHE.

No. A15A0346.

Court of Appeals of Georgia.

June 25, 2015.

Certiorari Granted Oct. 5, 2015.

Samuel S. Olens, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., Loretta L. Pinkston, C. McLaurin Sitton, Senior Asst. Attys. Gen., Atlanta, for Appellant.

The Boston Law Firm, Russell M. Boston, Wendy S. Boston, for Wyche.

Carlock, Copeland & Stair, Cheryl H. Shaw, for Moreland Altobelli Associates, Inc.

Drew, Eckl & Farnham, Stevan A. Miller, Melanie C. Eyre, for Reeves Construction Company.

Opinion

McMILLIAN, Judge.

Defendant Georgia Department of Transportation (“DOT”) appeals the trial court's order denying its motion to dismiss the complaint of Plaintiff Mary Wyche, individually and as surviving mother of Larry J. Bowen, Jr., deceased. Because we find that Wyche's claims against the DOT are barred by the doctrine of sovereign immunity for the reasons that follow, we reverse.

“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 evidence supporting them.”¹ (Citation and punctuation omitted.) Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga.App. 505, 509(3), 672 S.E.2d 471 (2009).

So viewed, the record shows that Bowen was killed on the night of May 4, 2005 while employed as a construction worker by Reeves Construction Company. (“Reeves”). Reeves was performing paving work on Eisenhower Parkway in Macon, Georgia pursuant to a contract with the DOT for Project No. STP–3201(9). At approximately 11:20 p.m., Bowen was standing in the area of the intersection of Eisenhower Parkway and Log Cabin Drive² when he was struck by a vehicle traveling south on Log Cabin Drive. He was then struck and dragged through the intersection by a second vehicle also traveling southbound on Log Cabin Drive. Tragically, he died at the scene. The drivers later deposed that they were proceeding through a green light at the intersection, which was “very dark,” and that they did not see any signs indicating construction work was underway at the intersection. That evening, the only DOT employee present was Johnny Moss, a field materials inspector, who had just arrived to perform asphalt testing and was still stopped at the traffic light at the time of the accident. Also at the scene was Cedric Howard, an employee of Moreland Altobelli Associates, Inc. (“Moreland”), which was under contract with the DOT to perform inspections³ and ensure that Reeves was in compliance with the DOT contract in all respects, including safety requirements.⁴

On May 2, 2007, Wyche filed a complaint against the DOT and Moreland,⁵ asserting claims of ordinary and professional negligence against both defendants, alleging that their lack of inspection and planning left drivers “without positive guidance, conspicuous, and unambiguous road signage and appropriate lighting.” With respect to the DOT, Wyche alleged that the DOT failed to inspect and enforce its contract with Moreland when it did not provide appropriate signage and lighting at the intersection and failed to oversee and train “its employees and agents as to appropriate inspection procedures.” The DOT was subsequently granted leave to file a third-party complaint against Reeves for indemnification under their contract.

In its third-party complaint, the DOT cites Section 150 of the contract's Special Provisions, which “as supplemented by the Plans, Specifications, and Manual on Uniform Traffic Control Devices (MUTCD),” constitutes the project's “Traffic Control Plan.” The DOT also cites subsection 150.01 of the contract, which provides that Reeves is responsible for “ ‘furnishing, installing, maintaining, and removing necessary traffic signs, barricades, lights, signals, cones, pavement markings and other traffic control devices and shall include flagging and other means for guidance and protection of vehicular and pedestrian traffic through the Work Zone.’ ”⁶

On March 7, 2014, the DOT filed a motion to dismiss on the grounds of sovereign immunity. Following a hearing, the trial court denied the motion, and this appeal followed.

1. In its first enumeration of error, the DOT asserts that the trial court erred in finding a waiver of sovereign immunity for the negligent acts committed by Reeves and Moreland, as independent contractors.⁷ The Georgia Constitution provides that sovereign immunity extends to the State and all of its departments and agencies.

Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). This sovereign immunity can only be waived by a constitutional provision or an Act of the General Assembly that specifically provides for such waiver. Id. The Georgia Tort Claims Act (“GTCA”) is one such Act and provides for a limited waiver of sovereign immunity for the torts of State employees while acting within the scope of their employment.⁸ See OCGA § 50–21–20 et seq. ; Johnson v. Ga. Dept. of Human Resources, 278 Ga. 714, 715(1), 606 S.E.2d 270 (2004).

In determining whether there has been a waiver of sovereign immunity, we must keep in mind that, “in acting for the public good and in responding to public need, state government must provide a broad range of services and perform a broad range of functions throughout the entire state, regardless of how much exposure to liability may be involved.” (Citations omitted.) Bd. of Regents of the Univ. System of Ga. v. Brooks, 324 Ga.App. 15, 17(1), 749 S.E.2d 23 (2013). For this reason, our legislature determined that “the exposure of the state treasury to tort liability must therefore be limited, and that state government should not have the duty to do everything that might be done.” (Citation omitted.) Id. And, “the doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed.” (Citation and punctuation omitted.) Id. Moreover, “[t]he party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.” Id. at 16, 749 S.E.2d 23.

Wyche asserts that because the DOT has a nondelegable duty to maintain traffic safety in construction zones on state highways, the DOT can be held liable for the actions of contractors like Reeves and Moreland, which should be considered “employees” under the GTCA. This question has been answered unequivocally under state law. Although the DOT is tasked with the duty to “plan, designate, improve, manage, control, construct, and maintain a state highway system”⁹ under the Georgia Code of Public Transportation, OCGA § 32–1–1 et seq., nothing in that Code prohibits the DOT from delegating its responsibilities to a private contractor. See Johnson, 278 Ga. at 716(2), 606 S.E.2d 270 (state departments “have meaningful statutory responsibilities ... and they satisfy those responsibilities by exercising reasonable care in the selection and supervision of their independent contractors”); Comanche Constr., Inc. of Georgia v. Dept. of Transp., 272 Ga.App. 766, 770(2), 613 S.E.2d 158 (2005) (physical precedent only) (finding no language in the statute that would prohibit the DOT from delegating its responsibility to a private contractor through a construction contract).

Here, the DOT delegated its responsibilities with respect to Project No. STP–3201(9) to Reeves and Moreland under their respective contracts, including the responsibility for traffic control and inspections for contract compliance. And the DOT is correct that corporations and independent contractors doing business with the State are not included within the GTCA's definition of “employee.” See OCGA § 50–21–22(7) ; Brooks, 324 Ga.App. at 17–18(1), 749 S.E.2d 23 (the State is immune from liability if the tort was committed by a third party). Thus, under the GTCA, the DOT's sovereign immunity has not been waived for the negligence committed by independent contractors such as Reeves or Moreland.¹⁰ Id.

Wyche now argues for the first time on appeal that the DOT was not permitted to delegate its duties to Reeves or Moreland because the State's project was partially funded by federal highway funds, and pursuant to 23 C.F.R. § 635.105(a), the DOT was required to maintain full authority over the construction project. However, “[a]s she raises [this] question for the first time on appeal, she presents nothing for us to consider.” Kumar v. Hall, 262 Ga. 639, 644(3), 423 S.E.2d 653 (1992). We also note that this Court rejected a similar argument in Comanche, and although it is physical precedent only, we find it persuasive. 272 Ga.App. at 771(2), 613 S.E.2d 158. The plaintiff in Comanche also argued that federal regulations placed sole responsibility for traffic control plans on the DOT, but this Court found that nothing in those regulations necessarily rendered DOT ultimately liable for design decisions related to traffic control plans. Id. (“23 C.F.R. § 630.1010(a)(4) (2004) specifically allows a state highway agency to permit a contractor to develop and use its own traffic control plan in a roadway project.”). And while the State is required to designate a person who will have “ ‘the primary responsibility and sufficient authority for assuring that the [plan is] effectively administered,’ ” there is “no reason why this requirement necessarily elevates DOT's involvement to something more than inspection and approval.” Id. (quoting 23 C.F.R. § 630.1010(b) (2004) ). See Ga. Dept. of Corrections v. James, 312 Ga.App. 190, 194(1), 718 S.E.2d 55 (2011) (“Implied waivers of governmental immunity should not be favored. Thus, even if, pursuant to the cited statutory provisions, [the third parties] are subject to the DOC's rules and supervision, those statutory provisions did not authorize the trial court's ultimate conclusion that sovereign immunity was waived.”) (citations and punctuation omitted).

Accordingly, Wyche's claims against the DOT for negligence relating to the paving operations on the night of the...