Studard v. Department of Transp., A95A1233

• Decision Date: 05 December 1995
• Docket Number: No. A95A1233,A95A1233
• Citation: 466 S.E.2d 236,219 Ga.App. 643
• Parties: STUDARD v. DEPARTMENT OF TRANSPORTATION et al.
• Court: Georgia Court of Appeals

Page 236

466 S.E.2d 236

219 Ga.App. 643

STUDARD v. DEPARTMENT OF TRANSPORTATION et al.

No. A95A1233.

Court of Appeals of Georgia.

Dec. 5, 1995.

Reconsideration Denied Dec. 20, 1995.

Certiorari Denied April 5, 1996.

Action for damages. Cobb State Court. Before Judge McDuff.

Mundy & Gammage, John S. Husser, Cedartown, Robert K. Finnell, Rome, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, C. Latain Kell, Assistant Attorney General, Gerard & Matthews, William T. Gerard, Athens, Susan J. Levy, Decatur, for appellees.

RUFFIN, Judge.

Martha Studard sued the Georgia Department of Transportation ("DOT") and four DOT employees for injuries she sustained in an automobile collision on a DOT road construction site. The jury returned a verdict in favor of the defendants. Studard appeals, enumerating as error the trial court's refusal to admit certain evidence. For reasons which follow, we affirm.

The collision occurred in a highway construction zone where a DOT contractor was resurfacing the road. Beginning 1,500 feet before both ends of the construction zone, signs were placed every 500 feet warning of the construction zone and containing advisory speed limits. Throughout the zone signs also warned of lane closures and flagmen. There was a pilot car with a sign reading "follow me" to lead drivers around the paving operation, and signs instructed drivers to merge due to a lane drop. Because all previous road markings were covered with new asphalt, temporary lane and centerline markings were put in place. Along that portion of the highway where the accident occurred, there were such temporary markings delineating one southbound and two northbound lanes. The accident occurred when a southbound vehicle veered off the roadway, traveled approximately 250 feet on the shoulder of the road and suddenly crossed over the centerline and one northbound lane, colliding head-on with Studard's northbound car.

It is undisputed that another accident occurred approximately 500 feet south of the location of Studard's accident four days before Studard's accident. It is also undisputed that the day after Studard's accident, the DOT placed "low shoulder" signs throughout the project and white pavement edge line in the area of both collisions. The court granted defendants' motions in limine prohibiting the introduction of any evidence concerning either the prior accident or the remedial measures taken by defendants immediately after Studard's accident. Although the transcript of the motion hearing is not included in the appellate record, in an order denying Studard's motion for reconsideration, the trial court ruled that Studard made "an inadequate showing of substantial similarity between the two collisions." Accordingly, the court found "that the introduction of evidence of the [prior] collision would not fall within the limited evidentiary exception to the general rule of inadmissibility of prior events." The court also ruled, without explanation, that the defendants' motions in limine regarding the subsequent remedial measures were granted.

1. In her first two enumerations of error, Studard asserts the court erred in granting the defendants' motions in limine. We find no error.

" 'The burden is on the party alleging error to show it affirmatively by the record. (Cits.)' [Cit.] ... Unfortunately for [Studard], there is no transcript of the ... hearing [on the motions]. 'Without a transcript of the evidence presented, we will in keeping with very old authority in this state presume in favor of public officers, in the absence of all proof to the contrary, that they discharged their duty in compliance with the law. [Cits.]' " Gillespie v. Gillespie, 259 Ga. 838, 388 S.E.2d 688 (1990). Thus, we must assume as a matter of law that the evidence adduced at the hearing on defendants' motions in limine supported the trial court's rulings. Id. See also Gay v. State, 199 Ga.App. 80(1), 403 S.E.2d 895 (1991).

2. During the trial, Studard again tried to present evidence showing that after the accident, DOT employee and codefendant Ben Hess directed the placement of the white edge line along the southbound shoulder of the roadway in the immediate vicinity of both accidents. Although this evidence had already been ruled inadmissible by the court's ruling on the defendants' motions in limine, Studard contends that it should have been admissible for impeachment purposes because Hess testified that the traffic controls in place at the time of the accident were adequate. We disagree.

The record shows that during Studard's cross-examination of Hess, the following exchange took place: "Q: Would it be fair to say that you felt that the traffic controls in place at any time you drove through prior to September the 10th, 1986 were adequate? A: I didn't see anything that jumped out as being inadequate, no, sir. Q: Your answer is they were adequate? A: Yes, sir."

Generally, " '[e]vidence of subsequent repairs following an injury is not admissible on the trial of negligence cases, the usual purpose of such evidence being as a basis for drawing the inference that the defendant thereby impliedly admitted his realization of negligence. [Cits.]' [Cits.]" Chastain v. Fuqua Indus., 156 Ga.App. 719, 722(3), 275 S.E.2d 679 (1980). The reason for excluding such evidence lies in sound public policy "that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrong-doers." Ga. Southern etc. v. Cartledge, 116 Ga. 164, 168(1), 42 S.E. 405 (1902). Although we have allowed certain exceptions to this rule, we have only suggested in dicta that evidence of subsequent remedial measures may be used for impeachment purposes. See Chastain, supra.

While our decision here is not intended to proscribe such use of...