Hagan v. Georgia Department of Transportation

• Decision Date: 11 April 2013
• Docket Number: A12A2412.,A12A2410,Nos. A12A2409,A12A2411,s. A12A2409
• Citation: Hagan v. Georgia Department of Transportation, 321 Ga.App. 472, 739 S.E.2d 123 (Ga. App. 2013)
• Parties: HAGAN, et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION. City of Ila, et al. v. Hagan, et al. City of Ila, et al. v. Hagan, et al. Hagan, et al. v. Georgia Department of Transportation.
• Court: Georgia Court of Appeals

321 Ga.App. 472

739 S.E.2d 123

HAGAN, et al.

v.GEORGIA DEPARTMENT OF TRANSPORTATION.

City of Ila, et al.

v.Hagan, et al.

City of Ila, et al.

v.Hagan, et al.

Hagan, et al.

v.Georgia Department of Transportation.

Nos. A12A2409, A12A2410, A12A2411, A12A2412.

Court of Appeals of Georgia.

March 20, 2013.

Reconsideration Denied April 11, 2013.

John Christopher NeSmith, Charles Madden Cork III, Kevin Trent Moore, Chandler W. Mason, for Hagan.

Samuel S. Olens, Loretta L. Pinkston, Elizabeth Ahern Monyak, for Georgia Department of Transportation.

Edward A. Miller, for City of Ila.

McMILLIAN, Judge.

Bobby L. Hagan, individually and as next friend of his wife Charlotte Louise Hagan, an incapacitated adult, brought suit against the Georgia Department of Transportation (GDOT) and the City of Ila, Georgia (City) seeking to recover damages for injuries Mrs. Hagan allegedly suffered when she fell on a sidewalk (the sidewalk) that was located in downtown Ila adjacent to State Route 106 on one side and a row of buildings owned by Team America Vans, Inc. on the other.¹ GDOT filed a combined motion to dismiss and motion for summary judgment asserting, among other things, that Hagan's claims were barred by sovereign immunity. The City also moved for summary judgment on immunity and other grounds, including that it had no liability for Mrs. Hagan's injuries because it did not own or maintain the part of the sidewalk where she fell. The trial court agreed that GDOT was immune from suit and granted its motion to dismiss, but denied the City's motion for summary judgment. Both Hagan and the City filed applications for interlocutory appeal, which this Court granted, and the parties filed notices of appeal and cross-appeal, which we have consolidated for review.²

The events giving rise to this lawsuit occurred in 2008 when Mrs. Hagan fell while walking down the sidewalk to a hair salon. The salon was located in a row of buildings owned by Team America Vans, which ran adjacent to the sidewalk. The sidewalk had been in existence for decades, was uneven in slope, and had been constructed with a one-step “riser,” ³ which was near the entrance of the hair salon. Mrs. Hagan, who had never walked along that stretch of the sidewalk before, apparently lost her balance and fell near the riser, allegedly sustaining serious and permanent injuries.

Although the buildings adjacent to the sidewalk were built sometime in the 1890's, the sidewalk appears to have been built later, although exactly who built it or when it was built is unknown. However, the record shows that in the 1930's, GDOT's predecessor, the State Highway Board of Georgia, acquired a 60–foot right of way across the property where the sidewalk was located, although the deeds were later corrected to 50 feet to reflect the landowners' intent that the right of way not extend into the actual buildings. Further, the buildings and property adjacent to the right of way where Mrs. Hagan fell were later deeded to Team America Vans, and a title examination did not reveal any other conveyances since those deeds were executed.

In 2005, Daniel Jack (John) Davis, Jr., the CEO of Team America Vans, hired a contractor to repair and improve the appearance of the sidewalk, and as part of that project, brick pavers were placed in front of the shop entrances and bricks were added along the curb and the riser, which remained elevated in relation to the surrounding sidewalk. Hagan alleged in his complaint “that an optical illusion exists with respect to the design, configuration, construction, maintenance and location of the step[,]” that defendants “failed to adequately warn the general public” of this defective and “hazardous condition,” and that “[d]efendants were negligent in failing to design, configure, build, permit, keep, maintain and/or repair the sidewalk in safe condition.”

Against this factual and procedural backdrop, we now turn to the parties' arguments on appeal, reciting additional facts as necessary to consider their contentions.

Case Nos. A12A2409 and A12A2412

1. First we consider Hagan's challenge to the dismissal of his claims against GDOT based on the bar of sovereign immunity (Case Numbers A12A2409 and A12A2412, respectively).

“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).” Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 263(1), 674 S.E.2d 914 (2009). So authorized, the legislature enacted the Georgia Tort Claims Act (GTCA), OCGA § 50–21–20 et seq., to ameliorate against the “inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity” while recognizing the difference between the roles and duties of state government and private entrepreneurs and the concomitant need to limit the exposure of the state treasury to tort liability. OCGA § 50–21–21(a). Thus, although the GTCA waives the state's sovereign immunity, OCGA § 50–21–23, that waiver is limited by certain specified exceptions and limitations, which are also set forth in the GTCA. Or, stated succinctly, “[t]he state is only liable in tort actions within the limitations of the [GTCA].” Dept. of Transp. v. Bishop, 216 Ga.App. 57, 58(1), 453 S.E.2d 478 (1994). Further,

any suit brought to which an exception applies is subject to dismissal pursuant to OCGA § 9–11–12(b)(1) for lack of subject matter jurisdiction. The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver, and the trial court's pre-trial rulingon factual issues necessary to decide the OCGA § 9–11–12(b)(1) motion is reviewed on appeal under the any evidence rule.

(Citations omitted.) Murray v. Ga. Dept. of Transp., 284 Ga.App. 263, 265(2), 644 S.E.2d 290 (2007).

The GDOT based its motion to dismiss on three exceptions under the GTCA—the discretionary function exception, the licensing exception, and the design exception, set forth respectively in OCGA § 50–21–24(2), (9) and (10).

Under the discretionary function exception, “[t]he 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 [.]” OCGA § 50–21–24(2). A discretionary function or duty is defined in OCGA § 50–21–22(2) and “means 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.”

Our appellate courts have considered the scope of this exception on several occasions, and our Supreme Court has emphasized that it is “limited to basic governmental policy decisions” and should not be extended in such a way that any decision affected by social, political, or economic factors would be encompassed within the exception. Dept. of Transp. v. Brown, 267 Ga. 6, 7(1), 471 S.E.2d 849 (1996).⁴ Thus, for the exception to apply, the discretionary function or duty must be one that requires a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of actions based upon the applicable factors. Ga. Dept. of Transp. v. Miller, 300 Ga.App. 857, 859(1), 686 S.E.2d 455 (2009). “The key to this issue is the difference between design and operational decisions and policy decisions.” Dept. of Transp. v. Brown, 267 Ga. at 7(1), 471 S.E.2d 849. For example, in Brown, the court held that while the initial decision to build a road was a policy decision, the decision to open the road before traffic lights were installed was an operational decision, and whether to use stop signs was a design decision. Similarly, while in Ga. Dept. of Transp. v. Smith, 314 Ga.App. 412, 414(1), 724 S.E.2d 430 (2012), we rejected the GDOT's evidence and argument that we should defer to its identificationof a “hierarchy or priorities” for the allocation of limited resources, we did so because the allegedly negligent failure to remove a hazardous tree in that case was not the policy but rather an “operational” decision by the responsible foreman to not carry out the GDOT's tree removal policy; and the alleged negligence was therefore not a “discretionary function.” Id. at 414, 724 S.E.2d 430 (“the GDOT foreman who was responsible for weekly inspections of the area that included the subject tree testified by deposition that during his inspections, beginning in 2004, he did not inspect trees.”). See also Ga. Dept. of Transp. v. Miller, 300 Ga.App. 857, 859(1), 686 S.E.2d 455 (when and where to send out DOT personnel to inspect roads for hazards after a rain was operational); see also Edwards v. Dept. of Children & Youth Svs., 271 Ga. 890, 892, 525 S.E.2d 83 (2000) (decision on type of emergency medical care to provide incarcerated juveniles does not fall within the exception); ⁵Brantley v. Dept. of Human Resources, 271 Ga. 679, 683, 523 S.E.2d 571 (1999) (foster parent's decision to leave a two-year-old in a swimming pool not a basic policy decision).

As the citations above illustrate,⁶ there are a number of Georgia appellate court cases addressing the applicability of the discretionary function exception in a variety of contexts. But, as the trial court noted, there appears to be no Georgia authority directly addressing this exception in the specific context of sidewalk repair or maintenance. However, the Oregon Court of Appeals has considered this issue under similar facts, Ramirez v. Hawaii T & S Enters., Inc., 179 Or.App. 416, 39 P.3d 931 (2002); the trial court found this opinion persuasive and so do we.

In Ramirez, the plaintiff sued the City of Portland after ...