Magueur v. Department of Transp.

• Decision Date: 13 March 2001
• Docket Number: No. A00A2338.,A00A2338.
• Citation: 547 S.E.2d 304,248 Ga. App. 575
• Parties: MAGUEUR v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

547 S.E.2d 304

248 Ga. App. 575

MAGUEUR v. DEPARTMENT OF TRANSPORTATION.

No. A00A2338.

Court of Appeals of Georgia.

March 13, 2001.

Robert M. Beauchamp, Albany, for appellant.

Thurbert E. Baker, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., Loretta L. Pinkston, Senior Asst. Atty. Gen., Allyson G. Krause, Jennifer D. Roorbach, Asst. Attys. Gen., for appellee.

RUFFIN, Judge.

While driving on County Road 92 in Decatur County, Shirley Magueur was allegedly injured when she lost control of her car on a 90-degree curve in the roadway. Although the road was owned, built, and maintained by the county, Magueur sued the State Department of Transportation (DOT), alleging that it negligently approved the road's design. The trial court granted the DOT's motion to dismiss, holding that it "had no duty to plan, design, improve, manage, control, construct or maintain County Road # 92." We agree that dismissal was proper, but for a different reason, and so affirm the trial court's ruling.

In considering a motion to dismiss for failure to state a claim, "all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor."¹ The motion should be granted only if

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.²

In her complaint, Magueur contends that the roadway was improperly designed and maintained in that (1) there were no signs or other warning devices alerting drivers to the impending 90-degree turn, and (2) there were no guardrails or barricades at the curve. Although DOT did not design the roadway and was not responsible for its maintenance, Magueur asserts that it can be held liable for negligence because it had a contract with the county to provide funds for the road's construction. In connection with this contract, DOT allegedly reviewed and approved the construction plans and inspected the site upon completion before releasing the funds. Magueur contends that such review and approval subjected DOT to liability under § 324A of the Restatement (Second) of Torts, which provides that

[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.³

Magueur claims that DOT "undertook the duty to use due care when it required that the plans for the construction be submitted to the DOT for approval." She argues that DOT can be held liable for breaching this alleged duty because it failed to alert the county to defects in the construction plans.

In its motion to dismiss, DOT contended the county had sole responsibility for designing, building, and maintaining County Road 92. In addition, DOT asserted that it was entitled to sovereign immunity pursuant to OCGA § 50-21-24(8), which provides that the state shall have no liability for losses resulting from

[i]nspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.

The trial court granted the motion to dismiss on grounds that DOT had no duty to design, build, or maintain the road, and thus did not address DOT's sovereign immunity defense. Because a judgment that is right for any reason must be affirmed,⁴ we first consider DOT's sovereign immunity argument.

In determining whether OCGA § 50-21-24(8) applies, the threshold question is whether this case involves an "inspection power or function," as that phrase is used in the statute. Although the statute does not define this phrase, it does offer an illustration, stating that the phrase includes an inspection to determine whether property "complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety."⁵ In the present case, the basis of Magueur's claim is that DOT violated a duty to notify the county that the road, as designed and as constructed, contained safety hazards.⁶ Even assuming that DOT had such a duty, however, the duty involved an "inspection power or function" within the meaning of the statute. Contrary to Magueur's assertion, we see no principled distinction between an inspection of physical...