Georgia Dept. of Transp. v. Miller
| Decision Date | 10 November 2009 |
| Docket Number | No. A09A1031.,A09A1031. |
| Citation | 300 Ga. App. 857,686 S.E.2d 455 |
| Parties | GEORGIA DEPARTMENT OF TRANSPORTATION v. MILLER et al. |
| Court | Georgia Court of Appeals |
Thurbert E. Baker, Attorney General; Davis, Pickren & Seydel, Paul R. Jordan, Donald P. Boyle, Jr., William G. Bertram, Atlanta, for appellant.
Pasley & Nuce, Derek C. Nuce, Thomaston; O'Neal, Brown & Clark, Manley F. Brown, John C. Clark, Macon; Walker, Hulbert, Gray & Byrd, Charles W. Byrd, Charles M. Cork III, Perry, for appellees.
Following a jury trial, the Georgia Department of Transportation ("DOT") appeals from a verdict in favor of plaintiffs Richard Miller (as administrator of the estate of Johnny Miller) and Linda Miller (Johnny Miller's surviving spouse), based on their claims arising from the death of Johnny Miller in a single-car crash on a wet roadway. Specifically, DOT asserts as error (1) the denial of DOT's motion for a directed verdict based on the Georgia Tort Claims Act1 ("GTCA"), (2) the admission of testimony from three expert witnesses, (3) the admission of evidence in violation of the parties' pretrial stipulation, (4) the trial court's failure to give certain jury charges, and (5) the giving of a jury instruction defining when a body of water is considered "permanent." For the reasons that follow, we affirm.
On appeal following a jury verdict in a civil case, we examine the record in the light most favorable to the verdict and judgment.2 So viewed, the evidence shows that Johnny Miller was killed in a single-car crash after his car hydroplaned on a wet road and landed submerged in a roadside pond, where he drowned. Due to debris blocking a drainage culvert, accumulated rainwater from the pond covered the road. The jury found that DOT failed to properly keep the culvert clear of debris, which caused water to run over the road where Miller lost control of his vehicle and died. After reducing the jury's verdict pursuant to OCGA § 50-21-29, the trial court entered a judgment in favor of Linda Miller in the amount of $1 million and in favor of Richard Miller in the amount of $507,921.90. DOT now appeals.
1. DOT contends that the trial court erroneously denied its motion for a directed verdict because DOT's negligence occurred in the performance of a discretionary function by a state employee, which is not subject to the waiver of sovereign immunity under the GTCA. We disagree.
The GTCA generally provides that
[t]he 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 the Act].3
OCGA § 50-21-24(2) sets forth an exception if the alleged tort is committed during "[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."4 The Act defines "[d]iscretionary function or duty" as "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."5
At trial, based on the language in the GTCA, DOT moved for a partial directed verdict with respect to DOT's alleged failure to comply with a storm patrol policy, on the ground that such a failure stemmed from the performance of (or failure to perform) a discretionary function by a state employee. DOT focused on testimony by plaintiffs' expert that DOT's Drainage Maintenance Manual stated, e.g., that "after each major storm, inspection should be performed to evaluate the need for clean up and repair ... Culverts must be kept free of obstructions."
DOT elicited testimony to the effect that, in practice, when implementing this policy, DOT personnel could make a "judgment call" as to which areas to inspect, and the policy afforded crews discretion as to whether to inspect after a particular storm. Based on this and other similar testimony from DOT employees, DOT argued that the trial court should have directed a verdict that the practices in the storm policy were discretionary and therefore not subject to sovereign immunity waiver in OCGA § 50-21-24(2).
However, the "judgment call" relied upon by DOT here is not the type of discretionary function contemplated by OCGA § 50-21-24(2). As noted above, the GTCA defines "discretionary function or duty" as 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.6 The 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: "Whether to buy copier paper from a particular vendor, and in which colors, are decisions that might be affected by all three factors, but they are not policy decisions."7
Similarly, in the scenario here, 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.8 For example, in Dept. of Transp. v. Brown,9 we explained that the initial decision to extend a highway is a policy matter within the discretionary function exclusion, but we held that DOT's decision to open the road prior to completion with an alternative traffic control system that relied on two-way stop signs rather than on four-way traffic light signals was not a policy decision.10 Noting that this decision was a "design and operational" decision, not a policy decision, the Supreme Court of Georgia approved of this characterization.11 Similarly, here, DOT's decision of when and where to inspect for road hazards during and following a rain event was not a policy decision requiring the exercise of discretion within the scope of OCGA § 50-21-24(2). Therefore, this enumeration is without merit.
2. DOT next enumerates as error the admission of expert testimony from three expert witnesses. "The question of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion."12
(a) Herman Hill. DOT contends that the trial court erred in admitting testimony from Herman Hill (1) that DOT failed to complete a routine biennial inspection of the drainage culvert and weekly inspections of the roadway and (2) that DOT failed to comply with its storm control policy. We disagree.
First, with respect to the inspections, DOT's appellate argument focuses on the content of Hill's testimony and essentially disputes the factual assertions made by Hill. DOT does not demonstrate how Hill failed to qualify as an expert under OCGA § 24-9-67.1(b), which provides, in relevant part:
If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.
Hill's qualifications were presented to the trial court, including his advanced degrees in civil engineering and public administration, professional engineer's license, certification as a professional traffic operations engineer, fifteen years experience working at DOT, and eight years experience at the local government level. Hill testified based on his personal knowledge of DOT's manuals and inspection policies. DOT's argument essentially disputes Hill's interpretation of DOT inspection policies, but DOT failed to show how the trial court abused its discretion in allowing Hill to testify as an expert. Thus, DOT's challenge to Hill's conclusions goes to the weight of his testimony, not the admissibility.13
Further, with respect to Hill's testimony about DOT's storm control policy, DOT challenged Hill's experience with the policy, eliciting testimony that he had not personally performed an inspection. Hill explained, however, that he had personally "reviewed hundreds and hundreds of them" and evaluated them based on other information relevant to the inspections. Essentially, this challenge impacted the weight of Hill's testimony, not the admissibility.
[I]f the expert's opinion was based upon inadequate knowledge, this does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion. If it be developed that the opinion is based on inadequate knowledge, this goes to the credibility of the witness rather than to the admissibility of the evidence. The weight given to expert testimony in negligence cases is for the trier of fact who can, but is not required to give it controlling influence.14
Because Hill's qualifications themselves were not impeached and Hill's testimony was based on his specialized knowledge of DOT policies and procedures, which would "assist the trier of fact ... to understand the evidence,"15 we discern no abuse of the trial court's discretion in allowing Hill's challenged testimony.
(b) Julian Beaver. DOT also challenges the trial court's admission of testimony from Julian Beaver, an accident reconstruction expert, who gave his opinion that Miller's vehicle veered into the...
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