Georgia Dept. of Transp. v. Brown, A95A0035

CourtUnited States Court of Appeals (Georgia)
Citation218 Ga.App. 178,460 S.E.2d 812
Docket NumberNo. A95A0035,A95A0035
PartiesGEORGIA DEPARTMENT OF TRANSPORTATION v. BROWN, Administratrix of the Estate of Anika Lotrale Colbert.
Decision Date10 July 1995

Page 812

460 S.E.2d 812
218 Ga.App. 178
BROWN, Administratrix of the Estate of Anika Lotrale Colbert.
No. A95A0035.
Court of Appeals of Georgia.
July 10, 1995.
Reconsideration Denied July 27, 1995.

Page 814

[218 Ga.App. 184] Michael J. Bowers, Atty. Gen., George P. Shingler, Sr. Asst. Atty. Gen., C. Latain Kell, Asst. Atty. Gen., Atlanta, for appellant.

Lanham & McGehee, Clark H. McGehee, Johnson & Ward, William C. Lanham, Atlanta, for appellee.

Samuel W. Oates, Jr., Columbus, Franklin, Taulbee, Rushing & Bunce, Elizabeth F. Bunce, Statesboro, Craig T. Jones, Atlanta; Cathey & Strain, Dennis T. Cathey, J. Edward Staples, Cornelia, amici curiae.

[218 Ga.App. 178] JOHNSON, Judge.

The Georgia Department of Transportation (DOT) decided to design and construct an extension of Georgia Highway 365, converting it to a four-lane, divided highway. Highway 365 had previously ended at State Road 17 (formerly U.S. 123), forming a "T" intersection controlled by stop signs in all three directions. The plans for the new road, which would intersect the existing State Road 17, called for installation of a traffic light signal to control traffic in both directions. The project was scheduled for completion on August 31, 1991. However, the DOT rejected the original bid for the installation of the traffic lights and the subsequent bid projected a completion date for the installation of the traffic lights of November 30, 1991. Rather than delay the opening of the intersection, the DOT erected temporary stop signs to control the traffic in both directions on State Road 17, and made the new Georgia State Route 365, temporarily, a through highway without any traffic control signs or signals.

The new intersection, as described, opened to the public on September 4, 1991. On September 28, 1991, Elsie Wheeler Colbert was driving her daughters, Shirley Hunter and Anika Colbert, on State Road 17. After entering the intersection, the car in which the women were riding was struck by a dump truck. All three women were killed on impact.

Mildred C. Brown, administratrix of the estate of Anika Colbert, brought this wrongful death action against the DOT and others. The case against the DOT was tried before a jury which returned a verdict in the amount of $1,505,000 against the DOT. The trial court reduced the jury's verdict to $1,000,000, the statutory limit of recovery under the Georgia Tort Claims Act, and entered judgment in that amount against the DOT.

1. The DOT asserts the trial court erred in denying its motions for summary judgment and a directed verdict based on the design standards exception to the Georgia Tort Claims Act (OCGA § 50-21-24(10)). The Georgia Tort Claims Act provides a waiver of the state's sovereign immunity for torts of state officers and employees while acting[218 Ga.App. 179] within the scope of their official duties unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24. OCGA § 50-21-23(a); See City of Thomaston v. Bridges, 264 Ga. 4, 439 S.E.2d 906 (1994); Collier v. Whitworth, 205 Ga.App. 758, 759, 423 S.E.2d 440 (1992). The highway design standards exception provides: "The 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." OCGA § 50-21-24(10).

The trial court denied the DOT's motion for summary judgment on this issue without explanation. At trial, the DOT moved for a directed verdict on the issue, which the trial court also denied. "After

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verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case." (Citations and punctuation omitted.) Brown Realty Assoc. v. Thomas, 193 Ga.App. 847(1), 389 S.E.2d 505 (1989). Therefore, as to the denial of DOT's motion for summary judgment, this enumeration of error cannot be considered on the merits.

However, the denial of a directed verdict motion is reviewable after entry of judgment. Keenan v. Hill, 190 Ga.App. 108, 110(5), 378 S.E.2d 344 (1989). "In considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion; and a verdict shall be directed only where there is no conflict in the evidence as to any material issue, and the evidence introduced with all reasonable deductions therefrom, shall demand a particular verdict. ... [Cit.]" Strong v. Wachovia Bank of Ga., 215 Ga.App. 572, 573(3), 451 S.E.2d 524 (1994). The highway design exception to the Georgia Tort Claims Act requires that expert testimony or other competent evidence be submitted to show that the plan or design was not prepared in substantial compliance with generally accepted engineering or design standards at the time such plan was prepared. The DOT asserts that there was no evidence that the plan or design of the road, as opened, deviated from generally accepted engineering or design standards in effect at the time the road was constructed. In support of that assertion, the DOT notes that the Manual on Uniform Traffic Control Devices (MUTCD), which has been accepted by statute (OCGA § 32-6-50) as authoritative, although not exclusively so, neither addresses nor sets a standard for transitioning traffic from an all-way stop configuration to a two-way stop intersection. Because no standard has been established, the DOT reasons, there can be no evidence of a deviation from an existing standard.

[218 Ga.App. 180] At trial, Brown's engineering expert acknowledged that no specific provision regarding such a transition exists in MUTCD, but opined that the DOT had deviated from generally accepted engineering and design standards in numerous ways. These deviations include failing to conduct additional engineering studies assessing the feasibility of opening the road with stop signs rather than the traffic light signals called for in the original plan; failing to establish a...

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26 cases
  • Howard v. City of Columbus, No. A99A0680
    • United States
    • United States Court of Appeals (Georgia)
    • July 15, 1999
    ...the exception swallow the waiver." Dept. of Transp. v. Brown, 267 Ga. 6, 7(1), 471 S.E.2d 849 (1996); accord Dept. of Transp. v. Brown, 218 Ga.App. 178, 180-182(2), 460 S.E.2d 812 (1995). Clearly, Edwards v. Dept. of Children &c. Svcs., supra, is distinguished from this case on both the law......
  • Department of Transp. v. Dupree, A02A1573.
    • United States
    • United States Court of Appeals (Georgia)
    • July 24, 2002
    ...(Emphasis supplied.) OCGA § 50-21-24(10); Daniels v. Dept. of Transp., 222 Ga.App. 237, 474 S.E.2d 26 (1996); Dept. of Transp. v. Brown, 218 Ga.App. 178, 460 S.E.2d 812 (1995), aff'd, 267 Ga. 6, 471 S.E.2d 849 (1996). Thus, to determine waiver, the trial court must find, based upon expert o......
  • Whitley v. Gwinnett County, A95A2136
    • United States
    • United States Court of Appeals (Georgia)
    • March 15, 1996
    ...been admitted in the past to show the Georgia DOT's knowledge of the need for traffic control devices, see Dept. of Transp. v. Brown, 218 Ga.App. 178, 183(4), 460 S.E.2d 812 (1995), the decision to exclude evidence is reviewed for abuse of the trial court's discretion. Id. at 183, 460 S.E.2......
  • Rowe v. Coffey, S98G1226.
    • United States
    • Supreme Court of Georgia
    • March 19, 1999
    ...v. T.R.C., 229 Ga.App. 608(1)(a), 494 S.E.2d 714 (1997) (physician's failure to report child abuse); and Dept. of Transp. v. Brown, 218 Ga.App. 178(3), 460 S.E.2d 812 (1995) (doctrine not applicable "where the legislature, by statute, creates exposure of the state to potential liability for......
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