Georgia Dept. of Transp. v. Heller

• Decision Date: 23 March 2009
• Docket Number: No. S08G1198.,No. S08G1056.,No. S08G1055.,S08G1055.,S08G1056.,S08G1198.
• Citation: 285 Ga. 262,674 S.E.2d 914
• Parties: GEORGIA DEPARTMENT OF TRANSPORTATION v. HELLER et al. City of Atlanta et al. v. Heller et al. Heller et al. v. City of Atlanta et al.
• Court: Georgia Supreme Court

285 Ga. 262

674 S.E.2d 914

GEORGIA DEPARTMENT OF TRANSPORTATION v. HELLER et al.

City of Atlanta et al. v. Heller et al.

Heller et al. v. City of Atlanta et al.

No. S08G1055.

No. S08G1056.

No. S08G1198.

Supreme Court of Georgia.

March 23, 2009.

Reconsideration Denied April 10, 2009.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Robert C. Edwards, Assistant Attorney General, for Department of Transportation.

James H. Potts II, Sidney L. Moore Jr., Schenck & Associates, Hollis C. Cobb, Atlanta, for Heller.

Elizabeth B. Chandler, Jerry L. DeLoach, Laura Sauriol, Atlanta, for City of Atlanta.

Susan K. Moore, James F. Grubiak, Atlanta, for amici curiae.

MELTON, Justice.

The facts underlying these consolidated cases show that Ed Heller's wife, Patricia, was killed when the taxi in which she was riding spun out of control on a rain-slick interstate highway and hit a tree. Heller, individually and as administrator of his wife's estate (hereinafter collectively "Heller"), filed suit against the taxicab driver and the cab company that the driver worked for.¹ Heller also sued several governmental entities: the Georgia Department of Transportation ("DOT"), which maintained the roadway; Greg Shepard, a City of Atlanta Vehicle for Hire inspector, based on the fact that one day before the accident Shepard had given the taxi a passing grade even though its tires had little or no tread; and the City of Atlanta, based on the allegation that Shepard's practice of not properly inspecting the tires was known to department supervisors and constituted a nuisance. The trial court granted summary judgment to the governmental defendants, and the Court of Appeals affirmed in part and reversed in part, holding that, although the trial court correctly concluded that the City was entitled to summary judgment on Heller's nuisance claim, the trial court erred in concluding that the DOT was entitled to sovereign immunity and that Shepard was entitled to official immunity from Heller's claims. See generally Heller v. City of Atlanta, 290 Ga.App. 345, 659 S.E.2d 617 (2008). We granted certiorari in these consolidated cases to determine (1) whether the Court of Appeals erred in its finding that the DOT was not entitled to sovereign immunity (Case No. S08G1055), (2) whether the Court of Appeals erred in its determination that Shepard was not entitled to official immunity (Case No. S08G1056), and (3) whether the Court of Appeals erred in its determination that the trial court properly granted summary judgment in favor of the City on Heller's nuisance claim. For the reasons that follow, we affirm in all three cases.

Case No. S08G1055

1. Under the Georgia Constitution, "[t]he General Assembly may waive the state's sovereign immunity from suit by enacting a State Tort Claims Act ... [or by enacting a statute] which specifically provides that sovereign immunity is thereby waived and the extent of such waiver." Ga. Const. of 1983, Art. I, Sec. II, Par. IX (a) and (e). See also Gilbert v. Richardson, 264 Ga. 744(3), 452 S.E.2d 476 (1994). Pursuant to this constitutional authority, the Legislature enacted the Georgia Tort Claims Act, which states in relevant part 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 this article.

OCGA § 50-21-23(a). In this regard,

[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 ... [and the state shall have no liability for losses resulting from] [l]icensing powers or functions, including, but not limited to, the issuance denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization.

OCGA § 50-21-24(8),(9). See also Youngblood v. Gwinnett Rockdale Newton Community Service Bd., 273 Ga. 715(3), 545 S.E.2d 875 (2001) (pursuant to OCGA § 50-21-24(7), State not liable for loss resulting from assault and battery by third party).

Here, the DOT claims that it cannot be subjected to liability because Mrs. Heller's death resulted, at least in part, from either Shepard's inadequate inspection of the taxicab's tires or Shepard's failure to issue a "Do Not Operate" citation for the taxi, which would have suspended the taxi's operating permit and kept it off of the roads. See OCGA § 50-21-24(8),(9) (inspection and permitting exceptions to the State's waiver of sovereign immunity). However, assuming without deciding that the inspection and permitting exceptions to the State's waiver of sovereign immunity apply to non-State actors, these exceptions were not the only provisions of the Tort Claims Act that were at issue in this case. The Act also provides that

[t]he 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.

(Emphasis supplied.) OCGA § 50-21-24(10) (the design standards exception). In this connection, this Court has made clear that where evidence is presented that

some of DOT's actions and failures to act with regard to [an area covered by the design standards exception] violated generally accepted engineering standards ... [an issue of fact exists] on the question of whether DOT violated generally accepted engineering standards, thus removing it from the protection of the design standards exception [of the Tort Claims Act].

Dept. of Transp. v. Brown, 267 Ga. 6, 8(2), 471 S.E.2d 849 (1996).

Here, after Shepard's inspection and failure to issue a "Do Not Operate" citation had already taken place, the crash itself occurred when the taxi in which Mrs. Heller was riding careened into a tree that the DOT may have allowed to remain too close to the edge of the highway where the accident took place. Heller presented expert testimony specifically showing 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. Where, as here,

record contains expert testimony that some of DOT's actions and failures to act with regard to the [highway] involved in this case violated generally accepted engineering standards[,] ... [w]e agree with the Court of Appeals that [an issue of fact exists] on the question of whether DOT violated generally accepted engineering standards, thus removing it from the protection of the design standards exception.

Brown, supra, 267 Ga. at 8(2), 471 S.E.2d 849

Thus, prior to the accident, allegedly negligent inspection and permitting functions occurred.² See OCGA § 50-21-24(8),(9). This was followed by a second event, the accident resulting in the loss due to the State's alleged improper design of the roadway. See OCGA § 50-21-24(10); Brown, supra, 267 Ga. 6, 471 S.E.2d 849 (victim killed in car accident upon entering poorly designed intersection and being struck by a dump truck). Because this second event leading to the loss does not fall within any exception to the State's waiver of sovereign immunity, we hold that the State has waived its sovereign immunity in connection with the car accident that led to Mrs. Heller's death. See id.; OCGA § 50-21-24(10).

The Court of Appeals' decision in Dept. of Human Resources v. Coley, 247 Ga.App. 392, 544 S.E.2d 165 (2000), does not change the result. In Coley, the Department of Human Resources placed the victim in a hospital where the victim was later strangled to death by another patient. This second event, the attack by this third party patient, which caused the plaintiff's loss, was the assault and battery for which the State was expressly protected by sovereign immunity. Therefore, the State was immune from suit. Id. at 394(1), 544 S.E.2d 165. In the instant case, however, there is no express exception to the waiver that would provide immunity to the State for the second event that allegedly caused the plaintiff's loss.

Although Coley did not involve other factors relating to the State's waiver of sovereign immunity besides the assault and battery exception, the Court of Appeals went on to state:

It is true that there may be more than one proximate cause of a plaintiff's loss. Regardless of the number of proximate causes, however, the plaintiff sustains only one "loss." This loss cannot be apportioned among the various proximate causes, with part of the loss attributed to one event and another part attributed to a different event.

Id. at 397(2), 544 S.E.2d 165. The DOT argues that this language compels the result that, as long as any one of the causes connected to a plaintiff's loss is a cause for which the State would be immune from suit, the State would always be immune from any suit stemming from such loss. However, this is not the case. The situation presented in Coley is distinguishable from the instant case. As an initial matter, Coley has nothing to do with competing sections of the Tort Claims Act. Furthermore, as explained above, the latter event in Coley that led to the plaintiff's...