Georgia Dept. of Transp. v. Brown

• Decision Date: 10 July 1995
• Docket Number: No. A95A0035,A95A0035
• Citation: 218 Ga.App. 178,460 S.E.2d 812
• Parties: GEORGIA DEPARTMENT OF TRANSPORTATION v. BROWN, Administratrix of the Estate of Anika Lotrale Colbert.
• Court: Georgia Court of Appeals

Page 812

460 S.E.2d 812

218 Ga.App. 178

GEORGIA DEPARTMENT OF TRANSPORTATION v. BROWN, Administratrix of the Estate of Anika Lotrale Colbert.

No. A95A0035.

Court of Appeals of Georgia.

July 10, 1995.

Reconsideration Denied July 27, 1995.

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.

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 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 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.

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 transition period from an all-way stop to a two-way stop; and failing to monitor the intersection in view of the change in plans to determine whether the modification was acceptable. Construing this testimony most favorably to Brown, as the opponent of the DOT's motion for directed verdict, we find that there was sufficient evidence regarding whether the DOT had substantially complied with generally accepted engineering or design standards in opening the road with the two-way stop configuration to submit this issue to the jury. The trial court did not err in denying the motion for directed verdict regarding the highway design exception to the sovereign immunity waiver provision of the Georgia Tort Claims Act.

2. The DOT argues that the trial court erred in denying its motions for summary judgment and a directed verdict based on immunity pursuant to the discretionary function exception to the Georgia Tort Claims Act. This exception is codified as OCGA § 50-21-24(2), which reads: "The 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." We again limit our discussion to the denial of the motion for a directed verdict, as the denial of the motion for summary judgment may not be reviewed for the reasons discussed in Division 1 of this opinion.

The Georgia Tort Claims Act defines discretionary function or duty as one "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." OCGA § 50-21-22(2). " '[T]he cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law and then to give it that construction which will effectuate the legislative intent and purpose.' ... [Cits.]" City of Calhoun v. North Ga. EMC, 233 Ga. 759, 761(1), 213 S.E.2d 596 (1975). See OCGA § 1-3-1. The stated intent of the Georgia Tort Claims Act, which was enacted in response to a 1991 amendment to the Georgia Constitution, is to reexamine the terms of the state's waiver of sovereign immunity, while recognizing the harsh results which occur as a result of strict application of the traditional doctrine of sovereign immunity. Curtis v. Bd. of Regents, etc., 262 Ga. 226, 227-228, 416 S.E.2d 510 (1992). Keeping the legislative intent of the Georgia Tort Claims Act in mind, a second applicable rule of statutory construction provides that where there is, in the same statute, a specific provision as well as a general one which in its most comprehensive sense would also include matters addressed in the specific, the particular provision must control. Schwartz v. Black, 200 Ga.App. 735, 736, 409 S.E.2d 681 (1991). The statute at issue in this case includes a highway design exception which applies to "plan or design for construction of or improvement to highways, roads, streets, bridge, or other public works...." Any decision made with regard to the these functions should be evaluated in terms of the specific provision dealing with highway design rather than the more general statutory exception to sovereign immunity for discretionary acts.

Even if we consider the decision to open the road with two-way stop signs instead of four-way traffic light signals under the discretionary function exception rather than under the planning or design exception, we still conclude that this exception to the limited waiver of sovereign immunity is inapplicable. Although the DOT asserts that the decision to open the road on schedule, rather than when complete, was based on "social and economic"...