Georgia Dept. of Transp. v. Cannady

• Decision Date: 13 February 1998
• Docket Number: No. A97A2523,A97A2523
• Citation: 497 S.E.2d 72,230 Ga.App. 585
• Parties: , 98 FCDR 927 DEPARTMENT OF TRANSPORTATION v. CANNADY.
• Court: Georgia Court of Appeals

Page 72

497 S.E.2d 72

230 Ga.App. 585, 98 FCDR 927

DEPARTMENT OF TRANSPORTATION v. CANNADY.

No. A97A2523.

Court of Appeals of Georgia.

Feb. 13, 1998.

Certiorari Granted June 25, 1998.

Thurbert E. Baker, Attorney General, George P. Shingler, Deputy Attorney General, C. Latain Kell, Senior Assistant Attorney General, Eric A. Brewton, Assistant Attorney General, Franklin, Taulbee, Rushing, Bunce & Brogdon, James B. Franklin, Statesboro, for appellant.

Edenfield, Cox & Classens, Gerald M. Edenfield, Susan W. Cox, Eschol L. Davis, Jr., Statesboro, for appellee.

ELDRIDGE, Judge.

On July 15, 1992, Adelle C. Cannady, plaintiff-appellee, was a passenger in a car driven by her daughter, Brenda C. Martin, traveling westbound on Georgia State Highway 26, also designated U.S. Highway 80; they had left Brooklet and were driving toward Statesboro, Georgia. Daniel Steven Stafford, Jr., a joint tortfeasor with defendant-appellant, the Georgia Department of Transportation ("DOT"), was driving eastbound toward them on the same road.

As Stafford approached the intersection of Ga. 26 and Grimshaw Road, a county-maintained road, an intense summer thunderstorm struck; while of brief duration, the rain inundated the roadway with rainwater, as well as the surrounding area. Stafford lost control of his car because of the water on the road and hydroplaned across the centerline into the vehicle in which plaintiff was riding, severely injuring her. Immediately prior to the collision, Stafford's vehicle had just rounded a slight curve adjacent to a farmhouse called the Water's House.

The plaintiff sued Stafford for negligent driving and DOT for negligent maintenance of the roadway.

Prior to trial, DOT made a motion in limine to exclude, as an admission of negligence, any evidence of subsequent remedial measures taken on the roadway at the collision scene to deal with the road elevation and drainage. The trial court denied such motion, and the evidence was admitted for a permissible purpose to show notice, feasibility of repair, and as the proximate cause of the collision from DOT's negligent maintenance of the roadway. DOT renewed its objections at trial.

The jury returned a verdict against DOT for $2,750,000. The trial court reduced the verdict by the amount paid by Stafford. The trial court entered a judgment against DOT in the amount of $2,650,000, although it acknowledged in the judgment that the Georgia Tort Claims Act, OCGA § 50-21-29, placed "a limit on the recovery" by an individual of $1,000,000. DOT filed a timely appeal from the judgment.

1. The first enumeration of error is that the trial court erred in denying DOT's motion in limine to exclude evidence of subsequent remedial measures and allowing this evidence into the trial of the case. We do not agree.

At pretrial, DOT's motion in limine sought to exclude evidence that the road's superelevation and cross-slope (crown), designed and constructed in 1931, had been deleted for cost reasons in the 1989 resurfacing project and had not been restored until three weeks after the collision. Plaintiff proffered evidence that such repairs were being offered, not to prove an admission of negligence, but to demonstrate the ease, feasibility, and ability to repair; DOT's prior notice and knowledge of the danger; and proximate causation. The evidence showed that cost was the reason for the deletion of the cross-slope and superelevation in 1989 and for failure to restore it in 1991 and 1992 prior to the collision. DOT later renewed its motion, which the trial court denied.

At trial, the evidence showed that the 1931 plans called for a cross-slope (crown) in the straight road and a two-degree curve with a superelevation of .125 per foot located just west of Grimshaw Road (County Road 351) and milepost 24. The superelevation was to begin 100 feet from the curve; when built, the curve was 118 feet from Grimshaw Road and the superelevation of .24 feet, at the outside of the curve greater than the centerline, was to begin at approximately Grimshaw Road. The 1931 plans called for a cross-slope of one-eighth inch higher at the centerline. In new construction, the cross-slope should be a quarter inch higher at the centerline, to cause faster water drainage off the road. In 1989, the highway was resurfaced, and such resurfacing should have had an equal or better slope; however, due to a lack of funding for the repaving project, the superelevation and proper cross-slope were not included. In 1991, Craig Black, DOT District Engineer, notified Glenn Durrence, DOT Area Engineer, that the curves no longer had superelevations and needed to be corrected, but the work was not done because of a lack of funds. In fact, going around this curve, the road was crowned without a superelevation, so that the water drained to the outside of the curve instead of to the inside; while there was drainage, such drainage was slower than if the proper cross-slope and superelevation were used. Funds to correct the superelevation were not made available in 1991 or prior to the collision, but were made available after the collision. DOT did not maintain the road with the designed superelevation or cross-slope from 1989 until after the July 15, 1992 collision; however, DOT was able to find the funds and do the work within three weeks of the collision.

Plaintiff introduced evidence of prior similar cases of vehicles hydroplaning in the area prior to the collision. The evidence of a number of prior incidents of vehicles hydroplaning at this location prior to July 15, 1992, was testified to by eyewitnesses. Such testimony was similar to the testimony of Stafford regarding the collision, showing that the negligent maintenance was the concurrent proximate cause of the collision.

"Generally, evidence of subsequent repairs following an injury is not admissible on the trial of negligence cases, the usual purpose of such evidence being as a basis for drawing the inference that the defendant thereby impliedly admitted his realization of negligence. [Cits.] Chastain v. Fuqua Indus., 156 Ga.App. 719, 722(3), 275 S.E.2d 679 (1980). The reason for excluding such evidence lies in sound public policy that men should be encouraged to improve, or repair and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers. Ga. Southern &c. [etc.,] [R. Co.] v. Cartledge, 116 Ga. 164, 168(1), 42 S.E. 405 (1902)." (Punctuation omitted.) Studard v. Dept. of Transp., 219 Ga.App. 643, 644-645(2), 466 S.E.2d 236 (1995); accord Evans v. Dept. of Transp., 226 Ga.App. 74, 76-77(3), 485 S.E.2d 243 (1997); Ratliff v. CSX Transp., 219 Ga.App. 53, 54(1), 464 S.E.2d 1 (1995); Wilson Foods Corp. v. Turner, 218 Ga.App. 74, 77(4), 460 S.E.2d 532 (1995); Stuckey's Carriage Inn v. Phillips, 122 Ga.App. 681, 178 S.E.2d 543 (1970).

The Supreme Court of Georgia recognized that no evidentiary rule is absolute, even the non-admissibility of evidence of subsequent remedial action. In Brooks v. Cellin Mfg. Co., 251 Ga. 395, 397, 306 S.E.2d 657 (1983), the Supreme Court held: "It is generally presumed that evidence of subsequent repair is submitted by plaintiffs for the purpose of showing that the defendant recognizes and admits his negligence. Flowers v. Slash Pine Elec. Membership Corp., 122 Ga.App. 254(3), 176 S.E.2d 542 (1970). If submitted for some other purpose, however, it may be admissible in a particular case. 'Such testimony may, in proper circumstances, be admitted for other purposes ...' and the jury instructed as to the purpose for which it is received. Stuckey's Carriage Inn v. Phillips, [supra]." In Studard v. Dept. of Transp., supra at 645, 466 S.E.2d 236, this Court indicated, that "[a]lthough we have allowed certain exceptions to this rule," it is in the sound discretion of the trial judge in making such determination as to whether to admit or deny evidence of subsequent remedial action as coming within an exception.

The exceptions to the rule include, inter alia, "when the subsequent repair, change, or modification tends to prove some fact of the case on trial (other than belated awareness of negligence, of course), to show contemporary knowledge of the defect, causation, a rebuttal of a contention that it was impossible for the accident to happen in the manner claimed, and so on. (Cit.) Such evidence may also be admitted where the feasibility of repair or modification is an issue. (Cit.) Wilson Foods [Corp. v. Turner], supra at 77-78(4), 460 S.E.2d 532." (Punctuation omitted.) Royals v. Ga. Peace Officer Standards, etc., Council, 222 Ga.App. 400, 401(1), 474 S.E.2d 220 (1996); see also Brooks v. Cellin Mfg. Co., supra at 397, 306 S.E.2d 657; Doster v. Central of Ga. R. Co., 177 Ga.App. 393, 396, 339 S.E.2d 619 (1985); Chastain v. Fuqua Indus., supra at 722, 275 S.E.2d 679; Stuckey's Carriage Inn v. Phillips, supra at 687, 178 S.E.2d 543.

The evidence that, after the collision, the superelevation and proper cross-slope were restored to the pre-1989 condition as called for under the 1931 design plans was relevant and material to show that the absence of such conditions was negligent maintenance and that the restoration was not a change in condition within the evidentiary rule. This case is analogous to Medi-Clean Svcs. v. Hill, 144 Ga.App. 389, 393-394(5), 241 S.E.2d 290 (1977), in which a safety guard had been removed for repair prior to the injury but restored immediately after the injury. "[T]his was not actually evidence of a change in a condition following an accident. It had been the normal circumstance for the guard to be on the machine prior to the accident." Id. In this case, there was a substantial passage of time between the elimination and restoration of the superelevation and proper cross-slope, but it had been knowingly and consciously done for lack of funding; lack of funds cannot be a defense to improper maintenance, because such defense would...