In a wrongful death case filed by a couple against the Georgia Department of Transportation (“DOT”) for the death of their daughter, the couple argued that the trial court erred in dismissing their claims for negligent design and negligent inspection because the DOT waived sovereign immunity as to those claims.
Background of the case
The couple’s daughter was a passenger in a vehicle driving on Thigpen Trail in Colquitt County. As the vehicle entered Thigpen Trail’s intersection with State Route 37, a tractor trailer traveling on Route 37 was also crossing the intersection. The vehicles collided, and the girl died as a result of the truck accident. Her parents filed a lawsuit, alleging that the DOT negligently designed, installed, maintained, and inspected the intersection.
The DOT filed a motion to dismiss for lack of subject-matter jurisdiction on the ground that it hadn’t waived sovereign immunity. In a one-sentence order issued by the trial court judge, the court granted the DOT’s motion to dismiss on the ground of sovereign immunity.
What is Sovereign Immunity?
Sovereign immunity refers to the fact that the government cannot be sued without its consent.
The Georgia Constitution authorizes the legislature to waive the state’s sovereign immunity, and the Georgia Tort Claims Act says that it’s the public policy of the state to be “only be liable in tort actions within the limitations” set out in the Act. So, while the Act waives the state’s sovereign immunity, that waiver is limited by certain specified exceptions and limitations in the Act. Thus, the state is only liable in tort actions within the limitations of the Act. Further, any suit brought to which an exception applies is subject to dismissal pursuant to OCGA § 9-11-12(b)(1) for lack of subject matter jurisdiction. The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.
Negligent Design
The parents argued that the trial court erred in dismissing their negligent design claim because the design exception to the waiver of sovereign immunity didn’t apply. That exception in O.C.G.A. § 50-21-24 (10) provides:
The state shall have no liability for losses resulting from . . . [t]he plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where 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[.]
The parents alleged that the intersection had been negligently designed because the angle of the intersecting roads was 60 degrees. They argued that the design exception to the waiver of sovereign immunity didn’t apply because the intersection’s design wasn’t “prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design,” as stated in O.C.G.A. § 50-21-24(10).
The Court of Appeals Opinion
Presiding Judge Christopher J. McFadden wrote for the Court of Appeals that to sustain this argument, the parents were required to prove the “generally accepted engineering or design standards in effect at the time of preparation of the . . . design,” O.C.G.A. § 50-21-24(10), which required them to submit expert testimony. This testimony is required because the court and jury aren’t allowed to speculate as to the standard against which to measure the acts of the professional in determining whether he exercised a reasonable degree of care.
To prove the applicable standards, the parents relied on the testimony of their expert. But the Georgia Evidence Code requires expert witnesses in professional malpractice actions to have been licensed at the time of the alleged act or omission. The parent’s expert wasn’t licensed as a professional engineer until 1969, which, the parties agree, was after the intersection had been designed. So under O.C.G.A. § 24-7-702(c)(1), he couldn’t testify about the “generally accepted engineering or design standards in effect at the time of preparation of the plan or design.”
Judge McFadden recognized that the application of O.C.G.A. § 24-7-702(c)(1) effectively destroys an entire class of claims for the negligent design of roads, as many roads in Georgia were designed long before any potential living expert witness had been licensed and that maybe the General Assembly didn’t intend this result. But if the statutory limitation is unintended or requires alteration, it was a matter for the General Assembly.
Traffic Control Devices and Speed Breakers
The parents argued that the trial court erred in dismissing their negligent design claim to the extent it was based on the DOT’s breach of its duty to warn motorists through the installation of “appropriate signage, speed breakers, warning devices, including flashing caution lights or other warning signage.”
Judge McFadden again stated that because the average layperson isn’t familiar with design and function features of traffic control devices, expert testimony is required to support a claim of professional engineering negligence based on the choice and installation of traffic control devices. As such, to avoid the design exception to the waiver of sovereign immunity, the parents were required to present expert testimony that the choice and installation of traffic control devices weren’t “in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design[.]” But again, their expert couldn’t testify about the standards in effect when the intersection was designed.
To make such a failure-to-improve claim, the parents were required first to show that the design of the intersection didn’t comply with the standards in effect at the time of the preparation of the design. Their expert couldn’t testify that the design of the intersection didn’t comply with the standards in effect at the time of the preparation of the design. So the parents failed to meet their burden of showing a waiver of sovereign immunity on their negligent design claim.
Negligent Inspection
As to negligent inspection, the parents argued that the trial court erred by dismissing their claim that the DOT breached its duty to inspect the intersection to determine whether it was properly maintained. On this issue, the Court of Appeals agreed.
Judge McFadden explained that the Georgia Tort Claims Act waives sovereign immunity for losses resulting from the inadequate or negligent inspection of state property. That rule is derived from a three-step analysis. The Act generally waives “sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment[.]” It establishes an exception to that waiver for claims alleging negligent inspection or failure to inspect in O.C.G.A. § 50‑21‑24(8). However, the statute goes on to establish an exception to the exception, in other words to waive sovereign immunity, where the inspection is of state property. O.C.G.A. § 50‑21‑24(8) provides:
The state shall have no liability for losses resulting from inspection 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.
As the parents pointed out, the DOT conceded that it hadn’t claimed sovereign immunity to their claims on the basis of the Tort Claims Act’s inspection exception. Instead, the DOT argued that the parents’ negligent inspection claim was inextricably intertwined with their negligent design claim. Consequently, the DOT asserted, the exception to the waiver of sovereign immunity on the negligent design claim meant that the DOT was also entitled to dismissal of the negligent inspection claim.
However, the parents alleged in their complaint that the DOT negligently inspected the intersection apart from its alleged negligent design of the intersection. In their trial court papers, they elaborated on their allegation, claiming that the DOT failed to inspect the intersection to ensure that the intersection was properly maintained by the removal of hazardous vegetation.
The Court of Appeals agreed with the parents that “[t]his claim… involves the [inspection and] maintenance of the subject intersection and not its engineering design.” As such, the Court of Appeals also agreed with the parents that immunity was waived to the extent that the DOT’s role included inspection of the state roadway and intersection itself to detect hazards or to determine compliance with laws, regulations, codes, or ordinances. Therefore, the trial court erred in dismissing the negligent inspection claim.
The judgment was affirmed in part and reversed in part. Munro v. Ga. DOT, 2023 Ga. App. LEXIS 337 (Ga. App. June 27, 2023).
Our Team Can Help
Suing the government for damages resulting from a motor vehicle accident is not an easy task. You need a law firm that understands sovereign immunity and its exceptions. Our experienced personal injury lawyers tackle tough personal injury questions every day. For a free consultation, call 404-JUSTICE (404-587-8423) or use our online contact form.