Hubbard v. Department of Transp., No. A02A0488

• Decision Date: 03 July 2002
• Docket Number: No. A02A0488, No. A02A0489.
• Citation: 568 S.E.2d 559,256 Ga. App. 342
• Parties: HUBBARD et al. v. DEPARTMENT OF TRANSPORTATION et al. C.W. Matthews Contracting Company, Inc. v. Hubbard et al.
• Court: Georgia Court of Appeals

568 S.E.2d 559

256 Ga. App. 342

HUBBARD et al. v. DEPARTMENT OF TRANSPORTATION et al.

C.W. Matthews Contracting Company, Inc. v. Hubbard et al.

Nos. A02A0488, A02A0489.

Court of Appeals of Georgia.

July 3, 2002.

Certiorari Denied September 6, 2002.

James W. Lewis, Mableton, George R. Dean, Atlanta, for appellants.

Thurbert E. Baker, Atty.Gen., Moore, Ingram, Johnson & Steele, William R. Johnson, Jere C. Smith, John H. Ross, Marietta, Cobb, Grabbe, Spillers & Irwin, Sharon C. Barnes, Susan J. Levy, Atlanta, for appellees. MIKELL, Judge.

Young Hee Hubbard filed suit against C.W. Matthews Contracting Company, Inc. ("Matthews"), Shepherd Construction Company, Inc. ("Shepherd"), the Department of Transportation for the State of Georgia ("DOT"), and four individual drivers to recover damages for injuries she sustained in an accident on the ramp merging onto I-285 East from Georgia 400 South. Hubbard's former husband, Jim Lewis, Jr., sought damages for loss of consortium. Hubbard and Lewis appeal the trial court's denial of their motion for partial summary judgment on the issue of the liability of Matthews, Shepherd, and the DOT, and the grant of summary judgment to Matthews and Shepherd on all claims against them. In a cross-appeal, Matthews contends that the court erred in denying its motion for summary judgment on the issue of proximate cause. We affirm the judgment of the trial court.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Dover v. Mathis, 249 Ga. App. 753, 549 S.E.2d 541 (2001).

The record shows that at approximately 6:53 p.m. on November 26, 1995, Hubbard drove up the ramp that merges from Georgia 400 southbound onto I-285 eastbound. That portion of I-285 was under construction at the time. She passed an orange and black sign warning traffic of "road work ahead." According to Hubbard, she came to a stop because the vehicle in front of her had stopped. That vehicle then proceeded to merge onto I-285, but Hubbard's car stalled on the ramp. Hubbard was unable to restart the engine by depressing the gas pedal several times. She exited the vehicle on the driver's side and started to move up the ramp toward a concrete barrier wall to the right of her lane of travel. Rather than proceeding directly to the wall, however, Hubbard ran behind her car and waved her hands at vehicles which were following in the merge lane. The car immediately following Hubbard's was able to avoid striking her person, but as it proceeded around her stalled vehicle, it was struck by the third car, which forced it to collide with Hubbard's disabled car. Almost immediately, the fourth and fifth cars collided and slid into the second and third cars, causing the third car to strike Hubbard, resulting in serious injuries to her left leg. At the scene of the accident, the drivers of the third and fifth cars were ticketed for following too closely. The driver of the third car was convicted, and the driver of the fifth pled no contest to the charge and paid a fine.

The record shows that in 1993, Matthews and Shepherd, operating as a joint venture, entered into a contract with the DOT for a project that called for 5.087 miles of road widening on I-285. The ongoing construction included the on-ramp where Hubbard's accident took place. Hubbard and Lewis filed the underlying suit in August 1996 against the DOT, Matthews, Shepherd, and each of the individual drivers involved in the accident. They alleged claims of negligent design, construction, and traffic control against the DOT, Matthews, and Shepherd, as well as claims for punitive damages. The plaintiffs subsequently settled their claims with the individual drivers, leaving only the DOT and the two construction companies.

Case No. A02A0488

1. First, we must consider Hubbard and Lewis' argument that the trial court erred in considering the defendants' renewed motions for summary judgment after the Superior Court of Cobb County had denied their prior motions. Hubbard's suit originally was filed in Cobb County and was transferred to the Superior Court of Fulton County in December 2000. The Fulton County trial judge invited the parties to renew their motions for summary judgment. Hubbard and Lewis emphasize that the record was not expanded prior to the renewal of the motions. They argue that the doctrine of res judicata prevented the Fulton County judge from considering the motions. We disagree.

This Court has repeatedly held that "[i]t is within the discretion of a trial judge to consider a renewed motion for summary judgment even without an expansion of the record. [Cit.] There is nothing in OCGA § 9-11-56 limiting the number of times a party may make a motion for summary judgment." (Punctuation omitted.) T.L. Rogers Oil Co. v. South Carolina Nat. Bank, 203 Ga.App. 605, 606(2), 417 S.E.2d 336 (1992). See also Travelers Indem. Co. v. Thomas, 172 Ga. App. 816, 818(2), 324 S.E.2d 735 (1984); Southeastern Metal Products v. Horger, 166 Ga.App. 205, 206(1), 303 S.E.2d 536 (1983). Further, res judicata would not apply, because the Cobb County trial judge denied the motions for summary judgment. According to OCGA § 9-12-40, "[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue." (Emphasis supplied.) No judgment was entered by the Cobb County court. Accordingly, the Fulton County trial court properly considered the renewed motions.

2. In several related errors, Hubbard and Lewis argue that the trial court erred in granting Matthews and Shepherd's motions for summary judgment. In their complaint, the plaintiffs alleged that the two contractors were responsible for the design of the traffic lanes and on-ramp at the scene of the collision and that such design was negligent. The plaintiffs also alleged negligent construction and traffic control. The trial court granted summary judgment to Matthews and Shepherd because there was no evidence that they performed the construction in a negligent manner, the two contractors did not hold themselves out as experts in design, and they did not participate in the design of the road construction. We affirm.

In David Allen Co. v. Benton, 260 Ga. 557, 398 S.E.2d 191 (1990), the Supreme Court provided the general rule regarding the liability of contractors to third parties in Georgia:

[W]here a contractor who does not hold itself out as an expert in the design of work such as that involved in the controversy, performs its work without negligence, and the work is approved and accepted by the owner ..., the contractor is not liable for injuries resulting from the defective design of the work.

Id. at 558, 398 S.E.2d 191. Similarly, this Court has held that "[a] contractor for the State engaged in work on a public project is not liable for injury or damage to private property resulting from the work performed unless that damage or injury results from the contractor's negligence or wilful tort." C.W. Matthews Contracting Co. v. Marasco, 184 Ga.App. 150, 151, 361 S.E.2d 34 (1987). The sole exception to the rule in the case of a nonnegligent contractor is that "a contractor who is an expert in the design of the type of work being done may not ignore defects in the design." David Allen Co., supra at 558, 398 S.E.2d 191. Therefore, Matthews and Shepherd could be held liable only if they performed the work negligently or if they held themselves out as experts in design. We note that the trial court denied the DOT's motion for summary judgment on the plaintiffs' negligence claims after finding that the proximate cause of Hubbard's injury was a jury question.¹ That decision has not been appealed. Thus, Hubbard and Lewis continue to maintain a cause of action against the DOT for negligent construction, design, and traffic control.

(a) Hubbard and Lewis contend that the trial court erred in finding no evidence that Matthews and Shepherd performed the construction negligently. They argue that the contractors were negligent in constructing an on-ramp to I-285 eastbound that was only 230 feet long. However, while Hubbard and Lewis raise issues concerning the design of the on-ramp, they fail to point to any evidence in the record demonstrating negligent construction on the part of the contractors.

Significantly, the record shows that Shepherd did not perform any construction at all on the eastbound side of I-285, where Hubbard's accident took place. Donald Mayo, a vice president of Shepherd and the project manager over Shepherd's portion of the I-285 construction, deposed that Matthews and Shepherd bid on the I-285 project as a joint venture, and that the two companies agreed that Matthews would perform all work on the eastbound side while Shepherd would work on the westbound side. The two contractors executed a joint venture agreement, which expressly provided that "Shepherd shall furnish all labor, materials, equipment, and all other things necessary to perform the Contract Roadway work items required in connection with the West bound lanes on the Project." The written agreement contained an identical provision regarding Matthews' work on the eastbound side. Hubbard has not alleged that Shepherd negligently constructed the westbound portion of I-285, nor has she shown any evidence of negligent construction by Matthews on the eastbound side.

Because Hubbard and Lewis failed to present any evidence supporting their claims of negligent construction against Matthews or Shepherd, the trial court did not err in granting summary judgment on this ground. See David Allen Co., supra.

(b) Next, we address Hubbard and Lewis' argument that Matthews and...