Johnson v. Department of Transp.

• Decision Date: 08 September 2000
• Docket Number: No. A00A1417., No. A00A1416
• Citation: 245 Ga. App. 839,538 S.E.2d 879
• Parties: JOHNSON v. DEPARTMENT OF TRANSPORTATION (Two Cases).
• Court: Georgia Court of Appeals

538 S.E.2d 879

245 Ga. App. 839

JOHNSON v. DEPARTMENT OF TRANSPORTATION (Two Cases).

Nos. A00A1416, A00A1417.

Court of Appeals of Georgia.

September 8, 2000.

Certiorari Denied February 16, 2001.

Dillard, Bower & Crowley, Bryant H. Bower, Jr., Fitzgerald, E. Kontz Bennett, Jr., Waycross, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Casey, Gilson, Williams & Schingler, George P. Schingler, Mark A. Basurto, Atlanta, for appellee.

SMITH, Presiding Judge.

James Leon Johnson and James Roy Johnson, cousins, brought these actions against the Georgia Department of Transportation and Pierce County for personal injuries arising out of a one-car accident on December 20, 1993.¹ After discovery, the DOT filed identical motions for summary judgment in each case. The trial court, in a well-written and thorough order, granted the DOT's motions, and the Johnsons appeal. Because the trial court correctly pinpointed and analyzed the fatal weakness in the Johnsons' case— failure of proof of negligence and causation— we affirm.

Inexplicably, the Johnsons' brief addresses first and at some length the issue of whether an expert witness affidavit was required under OCGA § 9-11-9.1(a), even though the trial court ruled in the Johnsons' favor on this issue. But the Johnsons' argument, while misdirected, inadvertently points to the dispositive issue in this case. The problem is not that expert testimony is required by the malpractice affidavit statute. Instead, the state of this record required expert testimony to survive summary judgment because, as it stands, it is devoid of any evidence of either causation or negligence.

In order to demonstrate negligence, the Johnsons were required to show a breach of duty by the DOT. With respect to alleged defects in maintenance of the roadway, they were required to present evidence of the proper maintenance standard, the deviation from that standard, and the causal connection between the deviation and the collision. Dept. of Transp. v. Mikell, 229 Ga.App. 54, 59-60(1)(c), 493 S.E.2d 219 (1997) (plaintiff alleging failure to trim bushes must show "how high the bushes were, how high they were allowed to be, how often they were supposed to be cut, or to what extent, if any, they interfered with visibility at the intersection, and how the overgrowth of bushes contributed to the incident").

In order for the Johnsons to show negligent maintenance by the DOT, they could not testify merely that "ruts" and "water" were present in the roadway. As the DOT observes in its brief, the combination of asphalt surfacing, heavy trucks, and hot Georgia summers guarantees the presence of ruts to some degree on any roadway. Expert testimony, or the proper presentation of engineering standards or contractual requirements, was necessary to show both the criteria for determining when ruts in asphalt pose a hazard to traffic sufficient to require repaving, and also that these particular ruts met those criteria. The Johnsons presented no testimony whatsoever of the DOT's standards or general engineering standards for inspecting and repairing ruts in pavement. They did not present any DOT records and did not depose any DOT official or supervisor regarding applicable inspection standards or procedures. Nor did they photograph the ruts or measure them so that the record would contain some evidence of the amount of deviation from any standard that exists.

Evidence of causation is also absent from the record. Neither of the Johnsons can recall anything about the incident. The record does not contain the testimony of the officer who investigated the incident or even a police report. The only other evidentiary items in the record are affidavits from the boys' fathers and from others who knew of other accidents in the same general location. One witness, in an unnotarized statement, offered only that he had hydroplaned on the same curve approximately three years after the Johnsons'...