Welch v. Georgia Dept. of Transp.

• Decision Date: 07 March 2007
• Docket Number: No. A06A1967.,A06A1967.
• Citation: Welch v. Georgia Dept. of Transp., 642 S.E.2d 913, 283 Ga. App. 903 (Ga. App. 2007)
• Parties: WELCH et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

283 Ga. App. 903

642 S.E.2d 913

WELCH et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION.

No. A06A1967.

Court of Appeals of Georgia.

March 7, 2007.

Mike S. Bennett, Sr., Jim T. Bennett, Valdosta, for appellants.

Thurbert E. Baker, Attorney General, G. Michael Banick, Assistant Attorney General, for appellee.

MIKELL, Judge.

Addie D. Welch was killed when the pickup truck she was driving collided with a dump truck at the intersection of East Courtland Avenue (Georgia Highway 333) and North Washington Street (Georgia Highway 76) in Quitman. Claiming that trees and shrubs on the property adjacent to the intersection were negligently maintained and obstructed Welch's line of sight, the executor of her estate and her surviving children and grand-children sued the Georgia Department of Transportation ("DOT") for her wrongful death.¹ DOT subsequently moved for summary judgment, arguing that OCGA § 32-2-2 precluded plaintiffs' claim, or in the alternative, that plaintiffs presented no evidence that Welch's line of sight was obstructed. The trial court granted DOT's motion without specifying the grounds for its ruling. For reasons that follow, we affirm.

Summary judgment is proper when the moving party shows that no genuine issue of material fact exists, and that the movant is entitled to judgment as a matter of law.² We apply a de novo standard of review to an appeal from a grant or denial of summary judgment and construe the evidence most favorably to the nonmovant.³ So construed, the evidence shows that at approximately 11:55 a.m. on September 10, 2003, Welch was traveling east on East Courtland Avenue, approaching its intersection with North Washington Street. She approached the stop sign and then proceeded through the intersection where her vehicle was struck on the driver side by a loaded dump truck driven by Leroy Head, an employee of GEM Trucking. Head testified that a witness to the accident told him that Welch was talking to her passenger and did not stop at the stop sign. Welch died from her injuries.

Officer Robert Denton of the City of Quitman Police Department responded to the accident. He recalled that witnesses told him that Welch stopped at the stop sign and then proceeded across the intersection. Denton opined that the overgrown bushes on the northwest corner of the intersection contributed to the accident and further acknowledged that he personally has experienced visibility problems at the intersection. Chief Investigator Roy Bamburg of the Brooks County Sheriff's Department investigated the accident. He testified that the house on the northwest corner of the intersection had been vacant for some time and that overgrown shrubs on the property and a "curvature" in the road combine to make the inter-section dangerous.

According to DOT employees, in the days and weeks following the accident, the City of Quitman asked DOT to assist in a cleanup of the intersection. DOT performed maintenance and cleaned the area, including hiring a tree service to remove three trees.

Appellants' engineering expert, Scott Bladen, opined that Welch's line of sight was obstructed by overgrown shrubs and trees on the northwest corner of the intersection; that the overgrowth extended two feet into the DOT right-of-way; and that DOT was responsible for maintaining the line of sight pursuant to OCGA § 32-4-93. After reviewing the depositions of several DOT employees, Bladen concluded that the right-of-way began at the edge of the vacant property and extended 100 feet to the highway. Bladen explained that the American Association of State Highway and Transportation Officials' guidelines for that intersection require a line of sight of 430 feet. Because of the overgrown vegetation, Welch's line of sight was between 143 and 277 feet.

The record further reflects that several accidents have occurred at the intersection, including one in 1995 involving Mary Catherine Williford, who testified that the overgrown vegetation obstructed her view, and another in 2000 that resulted in the death of Susan Fenno, where the same overgrowth was cited as a contributing factor.

1. Appellants contend that the trial court erred in finding DOT immune from liability for failing to maintain the overgrown area. We disagree.

Pursuant to OCGA § 32-2-2, DOT has the general responsibility to design, manage and improve the state highway system.⁴ But, where state highways are within city limits, the DOT is required to provide only substantial maintenance and operation.⁵ These include things such as reconstruction and resurfacing, reconstruction of bridges, erection and maintenance of official department signs, painting of striping and pavement delineators and other major maintenance activities.⁶ Specifically, OCGA § 32-2-2(a)(1) provides that

[t]he powers and duties of the department, unless otherwise expressly limited by law, shall include but not be limited to the following: (1) The department shall plan, designate, improve, manage, control, construct, and maintain a state highway system and shall have control of and responsibility for all construction, maintenance, or any other work upon the state highway system and all other work which may be designated to be done by the department by this title or any other law. However, on those portions of the state highway system lying within the corporate limits of any municipality, the department shall be required to provide only substantial maintenance activities and operations, including but not limited to reconstruction and major resurfacing, reconstruction of bridges erection and maintenance of official department signs, painting of striping and pavement delineators, furnishing of guardrails and bridge rails, and other major maintenance activities.

Though Georgia Highway 333 is a state highway, there is no dispute that the subject intersection lies within the corporate limits of the City of Quitman. Accordingly, DOT is required only to provide substantial maintenance activities and operations.

Appellants insist that maintenance of the overgrown shrubbery on the northwest corner of the intersection constitutes a "substantial" or "other major" maintenance activity as defined by the statute. We disagree. The expansive scope urged by appellants conflicts with the principle of ejusdem generis, which provides that "w...