Georgia Dep't of Transp. v. Smith

• Decision Date: 29 February 2012
• Docket Number: A11A2017,Nos. A11A1579,A11A2089.,A11A1580,s. A11A1579
• Citation: 724 S.E.2d 430,314 Ga.App. 412,12 FCDR 770
• Parties: GEORGIA DEPARTMENT OF TRANSPORTATION v. SMITH et al. Smith et al. v. Georgia Department of Transportation.
• Court: Georgia Court of Appeals

12 FCDR 770

314 Ga.App. 412

724 S.E.2d 430

GEORGIA DEPARTMENT OF TRANSPORTATION

v.SMITH et al. Smith et al.

v.Georgia Department of Transportation.

Nos. A11A1579

A11A1580

A11A2017

A11A2089.

Court of Appeals of Georgia.

Feb. 29, 2012.

Samuel S. Olens, Atty. Gen., Robert Lee Bunner, Asst. Atty. Gen., Kathleen M. Pacious, Dep. Atty. Gen., Loretta L. Pinkston, Sr. Asst. Atty. Gen., for Georgia Department of Transportation.

Johnson & Ward, Clark H. McGehee, William C. Lanham, for Smith et al.

MIKELL, Presiding Judge.

Ernest F. Smith, Sr., and his wife, Irene D. Smith, lost their lives from injuries they sustained after a large oak tree fell on their vehicle as they were driving on State Route 154. Ernest F. Smith, Jr., and Robert M. Smith (the Smiths), individually and as co-executors of their parents' estates, brought the underlying wrongful death actions against the Georgia Department of Transportation (DOT), alleging that the tree in question was hazardous; that it was growing on the DOT's right of way; and that the DOT's employees were negligent in failing to discover and remove it. In each lawsuit, the DOT moved to dismiss based on sovereign immunity. The trial court denied the DOT's motion to dismiss, and the DOT appeals from these orders in Case Nos. A11A1579 and A11A1580.¹ The trial court subsequently granted summary judgment in favor of the DOT and against the Smiths; the Smiths appeal from these orders in Case Nos. A11A2017 and A11A2089. For the reasons set forth below, we affirm the trial court's orders in these cases.

Case Nos. A11A1579 and A11A1580

1. In Case Nos. A11A1579 and A11A1580, the DOT argues that it is immune from suit under the Georgia Tort Claims Act (“GTCA”),² and therefore that the trial court lacked subject matter jurisdiction over it.³ “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, and the burden of proof is on the party seeking the waiver of immunity.” ⁴

The tree which fell and struck the vehicle driven by the decedents was located in the right–of–way maintained by the DOT. In their complaints, the Smiths alleged that the DOT was negligent in failing to inspect the tree adequately and in failing to remove it before it fell on their parents' car.

According to the affidavit of Eric Pitts, state maintenance engineer for the DOT, the DOT is responsible for maintaining approximately 18,000 linear miles of the State Highway System, including the right–of–way on both sides of the road, and has a limited budget with which to accomplish this end. The DOT's existing inspection policy for the state right–of–way includes, first, weekly “windshield” inspections by the DOT's maintenance foreman of the state routes in his or her assigned area; and second, a semi-annual written inspection by the DOT's assistant area engineer for maintenance, also conducted as a “windshield” inspection while driving. Under the DOT's tree removal policy, the district maintenance engineer decides whether to remove a tree from the right–of–way and consults with the state agronomist in the event he suspects that a tree is diseased. Although Pitts averred that DOT foremen are specifically trained to inspect “the vegetation adjacent to the paved surface” and other “issues that may affect safe travel on state routes,” the DOT foreman who was responsible for weekly inspections of the area that included the subject tree testified by deposition that during his inspections, beginning in 2004, he did not inspect trees.

Under the GTCA, the state waives its sovereign immunity for the torts of state employees while acting within the scope of their official duties “in the same manner as a private individual or entity would be liable under like circumstances.” ⁵ The waiver is subject to the exceptions set forth in OCGA § 50–21–24, and “[a] major exception to state liability under the [GTCA] is the ‘discretionary function’ exception.” ⁶ Under this exception, “[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.” ⁷

The DOT contends that its tree inspection “policy” falls within the “discretionary function” exception to the waiver of sovereign immunity found in the GTCA; and that therefore the Smiths' lawsuits were barred by the doctrine of sovereign immunity. We do not agree.

The GTCA provides the following definition of “discretionary function”: “ ‘Discretionary function or duty’ 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.” ⁸ In Ga. Dept. of Transp. v. Miller,⁹ plaintiffs alleged that the DOT failed to keep a culvert free of debris, causing rainwater to accumulate on the road where plaintiffs' decedent lost control of his vehicle and was killed in a single-car crash. ¹⁰ The DOT contended that its personnel had to make a “judgment call” as to which culverts to inspect after a storm; and that this “judgment call” was a “discretionary function” which was not subject to the waiver of sovereign immunity found in the GTCA.¹¹ We rejected the DOT's argument in that case, noting that a “discretionary function” within the meaning of the GTCA was one requiring the exercise of “ policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” ¹² We explained that “[t]he Supreme Court of Georgia has emphasized that these factors are only intended to signal ‘basic governmental policy decisions,’ and are not to be construed overly broadly.” ¹³ We concluded that “the day-to-day operational decision of whether and where to send out DOT personnel to inspect for road hazards on the day in question was not a basic governmental policy decision for purposes of the GTCA,” ¹⁴ and that therefore it did not fall within the “discretionary function” exception to the GTCA's waiver of sovereign immunity.¹⁵ Similarly, in Dept. of Transp. v. Brown,¹⁶ our Supreme Court noted that “the discretionary function exception is limited to basic governmental policy decisions,” ¹⁷ and that “[t]he key to this issue is the difference between design and operational decisions and policy decisions.” ¹⁸ In that case, the Supreme Court held that the DOT's decision to open a new intersection before installing traffic lights was not a “policy decision” within the scope of the “discretionary function” exception to the immunity waiver.¹⁹

We conclude that the case before us is governed by our decision in Miller.²⁰ The DOT employees' operational inspections of the roadways, and their concomitant decisions as to whether or not to inspect and remove hazardous trees, do not constitute “basic governmental policy decisions” within the scope of the “discretionary function” exception to the waiver of immunity found in the GTCA. The trial court did not err in denying the DOT's motions to dismiss the Smiths' claims.

Case Nos. A11A2017 and A11A2089

2. In Case Nos. A11A2017 and A11A2089, the Smiths appeal from the trial court's orders granting summary judgment to the DOT on their claims. Because there is no genuine issue of material fact regarding whether the DOT knew or should have known that the tree constituted a dangerous condition, we conclude that the trial court did not err in granting summary judgment in favor of the DOT.

In order to prevail on a motion for summary judgment, the movant must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may obtain summary judgment by demonstrating that the record contains no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case. A defendant is not required to affirmatively disprove the plaintiff's case, but may prevail by pointing to the absence of evidence to support the plaintiff's case. If the defendant does so, the plaintiff cannot rest on [his] pleadings, but must point to specific evidence giving rise to a triable issue of fact.²¹

The standard for a landowner's liability for damage resulting when a tree on his property falls on adjacent property is well established in Georgia. As this Court stated in Willis v. Maloof, ²² “In regard to liability for a defective tree[,] the ordinary rules of negligence apply. The owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition.” ²³ Thus, a landowner who knows that a tree on his property is decayed and may fall and cause damage to another has “a duty to eliminate the danger,” ²⁴ but “there is no duty to consistently and constantly check all ... trees for non-visible rot[,] as the manifestation of decay must be visible, apparent, and patent.” ²⁵ The following standard applies here: the landowner is only charged with knowledge of the dangerous condition of the tree if “a layman should have reasonably known the tree was diseased.... [D]efendant would not be charged with the knowledge or understanding of an expert trained in the inspection, care and maintenance of trees.” ²⁶

Here, there is no evidence that the tree at issue showed any evidence of disease or decay that would have been apparent to a layman. The Smiths' expert examined the tree at issue on February 25, 2009, three months after the tree fell on November 14, 2008. He testified that it was a white oak tree, approximately 90 feet tall before its fall, with a 24–inch diameter. He further testified that the tree was alive and...