The Georgia Department of Transportation (DOT) decided to design and construct an extension of Georgia Highway 365, converting it to a four-lane, divided highway. Highway 365 had previously ended at State Road 17 (formerly U. S. 123), forming a “T” intersection controlled by stop signs in all three directions. The plans for the new road, which would intersect the existing State Road 17, called for installation of a traffic light signal to control traffic in both directions. The project was scheduled for completion on August 31, 1991. However, the DOT rejected the original bid for the installation of the traffic lights and the subsequent bid projected a completion date for the installation of the traffic lights of November 30, 1991. Rather than delay the opening of the intersection, the DOT erected temporary stop signs to control the traffic in both directions on State Road 17, and made the new Georgia State Route 365, temporarily, a through highway without any traffic control signs or signals.
The new interseсtion, as described, opened to the public on September 4, 1991. On September 28, 1991, Elsie Wheeler Colbert was driving her daughters, Shirley Hunter and Anika Colbert, on State Road 17. After entering the intersection, the car in which the women were riding was struck by a dump truck. All three women were killed on impact.
Mildred C. Brown, administratrix of the estate of Anika Colbert, brought this wrongful death action against the DOT and others. The case against the DOT was tried before a jury which returned a verdict in the amount of $1,505,000 against the DOT. The trial court reduced the jury’s verdict to $1,000,000, the statutory limit of recovery under the Georgia Tort Claims Act, and entered judgment in that amount against the DOT.
1. The DOT asserts thе trial court erred in denying its motions for summary judgment and a directed verdict based on the design standards exception to the Georgia Tort Claims Act (OCGA § 50-21-24 (10)). The Georgia Tort Claims Act provides a waiver of the state’s sovereign immunity for torts of state officers and employees while act
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ing within the scope of their officiаl duties unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24. OCGA § 50-21-23 (a); see
City of Thomaston v. Bridges,
The trial court denied the DOT’s motion for summary judgment on this issue without explanation. At trial, the DOT moved for a directed verdict on the issue, which the trial court also denied. “After verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” (Citations and punctuation omitted.)
Brown Realty Assoc. v. Thomas,
However, the denial of a directed verdict motion is reviewable after entry of judgment.
Keenan v. Hill,
*180 At trial, Brown’s engineering expert acknowledged that no specific provision regarding such a transition exists in MUTCD, but opined that the DOT had deviated from generally accepted engineering and design standards in numerous ways. These deviations include failing to conduct additional engineering studies assessing the feasibility of opening the road with stop signs rather than the traffic light signals called for in the originаl plan; failing to establish a transition period from an all-way stop to a two-way stop; and failing to monitor the intersection in view of the change in plans to determine whether the modification was acceptable. Construing this testimony most favorably to Brown, as the opponent of the DOT’s motion for directed verdict, we find that there was sufficient evidence regarding whether the DOT had substantially complied with generally accepted engineering or design standards in opening the road with the two-way stop configuration to submit this issue to the jury. The trial court did not err in denying the motion for directed verdict regarding the highway design exception to the sovereign immunity waiver provision of the Georgia Tort Claims Act.
2. The DOT argues that the trial court erred in denying its motions for summary judgment and a directed verdict based on immunity pursuant to the discretionary function exception to the Georgia Tort Claims Act. This exception is codified as OCGA § 50-21-24 (2), which reads: “The state shall have no liability for losses resulting from . . . [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” We again limit our discussion to the denial of the motiоn for a directed verdict, as the denial of the motion for summary judgment may not be reviewed for the reasons discussed in Division 1 of this opinion.
The Georgia Tort Claims Act defines discretionary function or duty as one “requiring a state officer or employee to exercise his or her policy judgment in choosing among аlternate courses of action based upon a consideration of social, political or economic factors.” OCGA § 50-21-22 (2). “ ‘[T]he cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law and then to give it that construction which will effectuate the legislative intent and purpose.’. . . [Cits.]”
City of Calhoun v. North Ga. EMC,
Even if we consider the decision to open the road with two-way stop signs instead of four-way traffic light signals under the discretionary function exception rather than under the planning or design exception, we still conclude that this exception to the limited waiver of sovereign immunity is inapplicable. Although the DOT asserts that the decision to open the road on schedule, rather than when complete, was based on “soсial and economic” considerations, thus tracking the language of the statute, for the reasons discussed below we are not persuaded that this decision falls within the ambit of policy determinations contemplated by the discretionary functions exception to the Georgia Tort Claims Act.
While this is an issue of first impression in Georgia, the courts of numerous other states have examined the question whether the discretionary function exception to state tort claims acts is applicable to decisions affecting highways and have concluded that it is not. See, e.g.,
Japan Air Lines Co. v. State,
OCGA § 50-21-24 (2) should insulate the DOT from liability with regard to policy matters such as the underlying initial decision to extend Georgia Highway 365. The decision to open the road prior to completion with an alternative traffic control system which relied on two-way stop signs rather than on four-way traffic light signals is not a policy decision entitling the DOT to immunity under the discretionary functions exception to the Georgia Tort Claims Act. The trial court did not err in denying the DOT’s motion for directed verdict on this issue.
3. The DOT is оbligated by statute to plan, construct and maintain public highways. OCGA § 32-2-2 (a) (1). This obligation is intended to benefit all of the citizens of the state. Pointing to the Supreme Court’s decision in
City of Rome v. Jordan,
Even if the
City of Rome
is interpreted broadly so as to bar statutory rights of action as well as those arising by common law, “ ‘where a constitutional or statute law has received a given constructiоn by the courts of last resort. . . vested rights (may not be) impaired by a change of construction made by a subsequent decision.’ [Cits.]”
Dept. of Transp. v. Kendricks,
4. The DOT alleges the trial court erred in denying its motion in limine seeking to exclude evidence of other collisions at the intersection including seven accidents which occurred between the date it opened, September 4, 1991, and the date of this accident, September 28, 1991, as well as evidence of two аdditional accidents which occurred between September 28, 1991 and October 9, 1991, when the DOT began installing traffic signals. The DOT argues that the only exception to the general rule that similar accidents are inadmissible is to show that the defendant had knowledge of a certain condition.
Pembrook Mgmt. v. Cossaboon,
Brown offered the evidence to show that the intersectiоn — as opened, not as planned — was dangerous, and to show that the DOT knew or should have known of the accidents occurring at the intersection. The DOT’s attempt to factually distinguish this accident from the others on the basis of the speed or direction of the cars involved is unavailing as there is no requirement that thе other accidents be identical. See
Doster v. Central of Ga. R. Co.,
5. The trial court’s instruction to the jury regarding the limited purpose for which evidence of other collisions was allowed was a correct statement of the law, and was properly given. See
Mutual Benefit Health &c. v. Hickman,
6. Finally, the trial court’s charge on concurrent negligence was not error. The DOT suggests a governmental entity cannot be a joint tortfeasor because that status would constitute an impermissible gratuity in contravention of Art. Ill, Sec. VI, Par. VI (a) of the Georgia Constitution, which prоhibits the General Assembly from granting any donation or gratuity, or to forgive any debt or obligation owing to the public. The Supreme Court, however, has held that the DOT may
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be a joint tortfeasor. See
Dept. of Transp. v. Land,
Judgment affirmed.
Notes
The rule adopted by the Supreme Court, known as the public duty doctrine provides: “[L]¡ability does not attach where the duty owed by the governmental unit runs to the public in general and not to any particular member of the public, except where there is a special relationship between the governmental unit and the individual giving rise to a particular duty owed to that individual.” (Punctuation omitted.) City of Rome, supra at 27.