Whitley v. Gwinnett County

Decision Date15 March 1996
Docket NumberNo. A95A2136,A95A2136
Citation470 S.E.2d 724,221 Ga.App. 18
CourtGeorgia Court of Appeals

James L. Ford, Terry D. Jackson, Atlanta, for appellant.

Boyce, Ekonomou & Atkinson, Peter F. Boyce, William M. Coolidge III, Atlanta, for appellees.


In this wrongful death case, Mary Whitley appeals the grant of Gwinnett County, Georgia's (the County) motion for partial summary judgment and jury verdicts for the County and Roger Dewitt, a Gwinnett County police officer. She enumerates 11 errors.

This case arose after Officer Dewitt's patrol car collided broadside with a car driven by Mary Whitley's husband, James Whitley, who suffered fatal injuries. At the time of the collision, Officer Dewitt was on routine patrol, delivering some papers. As he traveled down a state highway, approaching an intersection just before a bridge over Interstate Highway 985, James Whitley exited I-985. The intersection was part of a typical interstate interchange insofar as it had entrance ramps and exit ramps separated by a bridge over the interstate. Officer Dewitt testified that he applied maximum braking when he realized James Whitley failed to stop at the stop sign at the end of the exit ramp and was entering the intersection. Officer Dewitt was unable to avoid the collision.

In April 1991, Whitley filed a complaint individually and as administratrix of James Whitley's estate alleging negligence against Officer Dewitt and joint and several liability against the County under a respondeat superior theory. Whitley filed an amended complaint in September 1993, alleging that the Gwinnett County Department of Transportation ("County DOT") negligently failed to maintain the intersection where the collision occurred.

The County moved for partial summary judgment on this claim, arguing that (1) the intersection where the fatal collision occurred was part of the state highway system and was not under the County's control; (2) the amendment was time barred and (3) Whitley's failure to attach the requisite affidavit to a professional malpractice claim was fatal. The trial court granted the motion and also granted the defendants' motion to bifurcate the trial's liability and damages phases. The jury returned a verdict in favor of Officer Dewitt and the County.

1. Whitley first contends the trial court erred in granting partial summary judgment to the County as to her negligent maintenance claim, arguing in pertinent part that her claim against the County for negligent maintenance is not a professional malpractice claim requiring an affidavit.

"[T]he relevant inquiry is whether 'a particular claim is grounded upon "professional malpractice," that is, an act or omission caused by a "professional" which constitutes malpractice.' [Cit.]" Adams v. Coweta County, 208 Ga.App. 334, 335(2), 430 S.E.2d 599 (1993). In the present case, the amended complaint alleged that the County DOT breached its primary responsibility to initiate a formal request for a traffic signal to the Georgia DOT when it knew or should have known that the intersection at issue presented an unreasonable risk to drivers.

It is undisputed that to acquire a traffic control device, the County DOT was required to apply to the Georgia DOT for a permit. The application process required the County DOT's engineers to prepare a traffic control study justifying the necessity of the traffic control device. These engineers were also required to submit a proposal for the signal's design to accompany the application. This evidence demonstrates that the process of applying for a traffic control signal permit required "the exercise of professional skill and judgment" by agents recognized as professionals under Georgia law. Id. Furthermore, the fact that an expert witness would be required to prove the claim against the County DOT is further proof that Whitley's allegations are not of simple negligence. Id. at 336, 430 S.E.2d 599. Notwithstanding Whitley's argument that the need for the traffic control device was patently obvious, the rule remains that "[e]ven in cases of 'clear and palpable' professional negligence it is still necessary that the plaintiff file an expert affidavit contemporaneously with the filing of the complaint." (Punctuation omitted.) Id. Consequently, the trial court properly granted summary judgment on this claim.

2. Whitley argues that the trial court erred in bifurcating the issues of liability and damages because there was but one issue to be tried, damages were merely the measure of relief flowing from that issue, and there was no dispute about causation or other issues which might confuse the jury about damages.

We disagree. Courts are authorized to bifurcate issues to further convenience or avoid prejudice. OCGA § 9-11-42(b). The decision to bifurcate is reviewed for clear and manifest abuse of discretion. Sollek v. Laseter, 124 Ga.App. 131, 132, 183 S.E.2d 86 (1971). Whitley has not shown how bifurcation prejudiced her. Inasmuch as we have upheld the bifurcation of the liability and damages issues in other vehicle collision cases, we find the trial court did not abuse its discretion in the case sub judice. Parks v. Consolidated Freightways, 187 Ga.App. 576, 577(1), 370 S.E.2d 827 (1988); Cline v. Kehs, 146 Ga.App. 350(1), 246 S.E.2d 329 (1978).

3. Whitley argues that the trial court erred in granting defendants' motion in limine on the admissibility of similar accidents at the intersection. She maintains the evidence was relevant to the issues of the dangerousness of the intersection, whether Officer Dewitt knew or should have known of the danger, and how the collision occurred.

Generally, evidence of similar accidents is not admissible to prove negligence. Bassham v. Diamond, 148 Ga.App. 620, 621(1), 252 S.E.2d 23 (1979). Although evidence of similar collisions has been admitted in the past to show the Georgia DOT's knowledge of the need for traffic control devices, see Dept. of Transp. v. Brown, 218 Ga.App. 178, 183(4), 460 S.E.2d 812 (1995), the decision to exclude evidence is reviewed for abuse of the trial court's discretion. Id. at 183, 460 S.E.2d 812. See also Gary v. E. Frank Miller Constr. Co., 208 Ga.App. 73, 74(1), 430 S.E.2d 182 (1993).

The trial court excluded the evidence as immaterial because Officer Dewitt denied any knowledge of the dangers of the intersection and no other evidence imputed knowledge to him. Had the motion in limine been denied, Whitley would have introduced a post-accident traffic study, eleven accident reports from the same intersection, and testimony by five witnesses on the visual obstruction caused by the bridge rail.

The evidence showed that Officer Dewitt had been a traffic officer in the county for 18 years and had served on a special accident investigation unit for years; however, none of the excluded reports linked Officer Dewitt to any of the accidents at the intersection. Thus, we cannot say the court abused its discretion in excluding them as irrelevant. Moreover, the relevance of the traffic study, which was conducted after the accident, is at best tenuous. Further, the additional evidence of visual obstruction would have been cumulative because Officer Dewitt's supervisor in the accident investigation unit and the state trooper who investigated this collision both testified about the visual obstruction caused by the bridge rails just before the intersection. Under these circumstances we cannot say that the trial court abused its discretion in excluding this evidence.

The dissent would find that evidence of similar side-impact collisions at the intersection where the collision occurred was relevant to impeach Officer Dewitt's testimony and to show that Dewitt knew or should have known of hazardous conditions at the intersection before he collided with the decedent's car. Although Dewitt denied knowledge of the similar collisions, the dissent questions Dewitt's unchallenged veracity based on evidence of Dewitt's history as an officer with Gwinnett County Traffic Control. Credibility is resolved at the trial court, and this Court has no authority to do so. During the hearing on the motion in limine, the trial court asked plaintiff's counsel if there was any evidence to dispute the defendants' contention that Dewitt had no knowledge of the additional collisions, plaintiff's counsel merely responded: "All the evidence about Officer Dewitt's knowledge and notice would be circumstantial evidence." Plaintiff's counsel did not tender any evidence of the other collisions or attempt to make an offer of proof with regard to the circumstantial evidence at the pretrial hearing. Near the end of the defendants' case at trial, plaintiff's counsel made what he termed an "offer of proof," of the documents ruled inadmissible at the pretrial motion hearing. Counsel neither detailed these documents for the trial court, nor did he question the veracity of Officer Dewitt. For the first time, plaintiff tendered the accident reports of the other collisions. Plaintiff did not impeach Dewitt at trial because he did not testify as to his knowledge of the other collisions at trial as the trial court had previously ruled such evidence inadmissible.

This Court has held many times that issues not properly raised in the trial court will not be considered on appeal. See City of Dalton v. Smith, 210 Ga.App. 858(1), 437 S.E.2d 827 (1993). "In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver." (Punctuation and emphasis omitted.) Hunter v. State, 202 Ga.App. 195, 197, 413 S.E.2d 526 (1991). In the present case, plaintiff's counsel failed to present evidence with regard to Dewitt's knowledge of previous collisions at the intersection involved....

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