Sadler v. Dep't of Transp. of State v. Dep't of Transp. of State v. Dep't of Transp. of State v. Dep't of Transp. of State

• Decision Date: 08 September 2011
• Docket Number: Nos. A11A0665,A11A0667,A11A0668.,A11A0666,s. A11A0665
• Citation: 716 S.E.2d 639,11 FCDR 2895,311 Ga. App. 601
• Parties: SADLER et al.v.DEPARTMENT OF TRANSPORTATION OF the STATE of Georgia.Daleyv.Department of Transportation of the State of Georgia.Daley et al.v.Department of Transportation of the State of Georgia.Hayes et al.v.Department of Transportation of the State of Georgia.
• Court: Georgia Court of Appeals

311 Ga.App. 601

716 S.E.2d 639

11 FCDR 2895

SADLER et al.

v.DEPARTMENT OF TRANSPORTATION OF the STATE of Georgia.Daley

v.

Department of Transportation of the State of Georgia.Daley et al.

v.

Department of Transportation of the State of Georgia.Hayes et al.

v.

Department of Transportation of the State of Georgia.

Nos. A11A0665

A11A0666

A11A0667

A11A0668.

Court of Appeals of Georgia.

Sept. 8, 2011.

Savage, Turner, Pinson & Karsman, Christopher Dorian Britt, Brent J. Savage, Savannah, Jack J. Helms, for appellants.Thurbert E. Baker, Atty. Gen., Robert C. Edwards, Claude McLaurin Sitton, Asst. Attys.Gen., for appellee.DILLARD, Judge.

This appeal follows the trial court's dismissal of four complaints filed against the Georgia Department of Transportation(“GDOT”) following a traffic accident in which Connie Sadler and Ana Pellerin were tragically killed and in which Peggy Sadler Daley and Dacia Mitchell were seriously injured (collectively “the plaintiffs”).¹The trial court granted GDOT's motion to dismiss based upon the plaintiffs' failure to show a waiver of sovereign immunity.For the reasons noted infra, we affirm.

The record shows that in 2005, Peggy Sadler Daley was driving home with three family members in her vehicle: her sister, Connie, in the passenger seat; her six-month-old daughter, Ana, restrained in the rear passenger-side seat; and her three-year-old daughter, Dacia, restrained in the rear driver-side seat.In order to reach her home, Daley had to pass through the intersection of Cassidy Road and the North Thomasville Highway Bypass/Georgia State Highway 38 in Thomas County.The two lanes of Cassidy Road cross over a four-lane bypass, which is divided by a median and turn lanes.The bypass is flanked by stop-signs on either side of Cassidy Road and white, painted stop-bars within the median.

Daley testified below that on the afternoon in question, she stopped at the stop-sign on Cassidy Road before entering the median of the bypass, and that once she entered the median, she stopped at the painted stop-bar to assess the amount of oncoming traffic before proceeding across the remainder of the bypass.²According to Daley, a white car in a left-hand turn lane partially blocked her view of oncoming traffic while she was stopped; nevertheless, Daley's sister helped her to determine when it was safe to proceed across the remainder of the bypass.Unfortunately, as Daley exited the median, her vehicle was struck on the passenger side by an oncoming pickup truck.³As a result of this collision, Daley's sister and younger daughter were tragically killed, and Daley and her older daughter were seriously injured.

Thereafter, the plaintiffs filed suit against GDOT,⁴ alleging that GDOT (1) was negligent in its analysis of the intersection and bypass operations; (2) negligently managed, designed, and maintained the intersection; (3) failed to comply with generally accepted design standards and failed to provide proper traffic-control devices and signals at the intersection; and (4) failed to provide supplemental traffic devices in the median.In response, GDOT asserted that it was immune to the plaintiffs' claims under the doctrine of sovereign immunity and moved to dismiss the complaints.⁵The trial court granted GDOT's motion to dismiss, concluding that the plaintiffs had not shown a waiver of sovereign immunity.This appeal by the plaintiffs follows.

At the outset, we note that “sovereign immunity is a threshold issue” for the trial court's consideration.⁶The Georgia Tort Claims Act⁷ sets forth exceptions to a state agency's sovereign immunity,⁸ which are subject to certain limitations; ⁹ and a plaintiff bears the burden “of establishing that a state agency's conduct is excepted from sovereign immunity.”¹⁰Moreover, we review a trial court's grant of a motion to dismiss on sovereign-immunity grounds de novo, bearing in mind that a motion to dismiss may be granted only when a plaintiff“would not be entitled to relief under any set of facts that could be proven in support of its claim.”¹¹Nevertheless, “[w]hen the trial court determines a jurisdictional issue based upon conflicting factual issues, on appeal, the court's finding on a factual issue will be sustained if there is evidence which authorizes the finding.”¹²With these guiding principles in mind, we turn now to the plaintiffs' enumerations of error.

1.The plaintiffs first argue that the trial court erred in finding that the design-standards exception applied and that, accordingly, GDOT's sovereign immunity had not been waived.We disagree.

The design-standards exception shields the State and its agencies from liability for losses that result from “[t]he plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works [when] such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.”¹³Thus, sovereign immunity does not exempt the State from liability when a plaintiff can show that the State failed to comply with the applicable standard of care.¹⁴To do this, a plaintiff must present “expert testimony or other competent evidence ... to show that the plan or design was not prepared in substantial compliance with generally accepted engineering or design standards at the time such plan was prepared.”¹⁵

In the case sub judice, the plaintiffs presented deposition testimony of a consulting engineer, Herman Hill, who posited, in pertinent part, that GDOT was negligent in failing to place adequate and necessary markings and signs in the intersection's median.

16GDOT then responded to this testimony by including with its motion to dismiss the affidavit of a professional engineer who averred that (1) the Cassidy Road/Thomasville Bypass intersection fully complied with the applicable generally accepted engineering and design guidelines as set forth in the “Manual of Uniform Traffic Control Devices”(MUTCD), and (2)the plaintiffs' expert opinions were unsupported by industry practice or were otherwise unreliable.

Based on “the evidence and the written and oral arguments of the parties,”the trial court found that the plans and designs for the intersection, which were completed in 1998, complied with the engineering and design standards that applied at that time—specifically, that the design complied with the policy suggestions in the 1984 edition of “A Policy on Geometric Design of Highways and Streets” and the 1988 edition of MUTCD.¹⁷And based on our review of the record, we agree with the trial court's conclusion.

Specifically, plaintiffs' expert (Hill) testified that if the median was 30 feet or greater in width, the MUTCD would require the placement of a stop-sign in the median.But according to GDOT's expert, the 1988 MUTCD specifies that stop-signs or yield-signs may be placed inside a median if the median is more than 30 feet wide.And the 1988 MUTCD further defines “may” as a “permissive condition” with “[n]o requirement for design or application ... intended.”¹⁸

Moreover, although Hill's testimony suggested various definitions of and methods for measuring what constitutes the width of a median, he never appeared to reach a definitive conclusion on this important factual issue,¹⁹ and even conceded that the median at issue could be considered less than 30 feet wide under one such definition.²⁰And GDOT's expert averred that the width of the median was in fact less than 30 feet wide.Finally, the testimony of the plaintiffs' other expert, Robert Stammer, also appeared to agree with the conclusion that the width of the subject median was less than 30 feet.²¹

After considering the foregoing evidence, the trial court found that the median was less than 30 feet wide and, thus, that no additional signage was required.The trial court further found that even if the median had been greater than 30 feet wide, the placement of additional signs would have been permissive, not mandatory, under the MUTCD.²²Additionally, as further discussed in Division 2, infra, the trial court found that GDOT was not negligent in failing to place a traffic signal at the intersection.²³As such, the trial court properly held that the plaintiffs failed to establish noncompliance with accepted design and engineering practices.And for all of the reasons outlined supra, we agree with the trial court's conclusion that the plaintiffs failed to meet their burden of showing that a waiver of sovereign immunity was authorized by the record evidence.²⁴

2.The plaintiffs next contend that the trial court erred in finding that the permit exception applied and that, accordingly, GDOT's sovereign immunity had not been waived.We disagree.

The permit exception creates a waiver of sovereign immunity as to “[l]icensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization.”²⁵And while GDOT issues permits to local governments for the installation of traffic signals, the MUTCD requires a traffic engineering study to evaluate, prior to any determination to add a traffic signal, the need for the issuance of a signal permit.²⁶In this respect, the MUTCD contains “warrants” that indicate when conditions in an area present the need for a traffic signal.²⁷

And here, the plaintiffs' expert (Hill) opined that GDOT was negligent in (1) failing to place a traffic signal at the Cassidy Road intersection and (2) failing to respond to a history of accidents at the intersection, which should have, in his opinion, compelled more than the minimum signal requirements.GDOT, however, presented evidence that when the Cassidy Road intersection opened, there were no warrants for the installation of a traffic signal.Additionally, after the...