The Georgia Department of Transportation appeals from a judgment in a negligent design malpractice wrongful death action entered upon a jury verdict against it and in favor of Carolyn W. Dupree, administratrix of the estate of Betty N. Lamb, and for Samuel Lamb, husband of the deceased. Finding no merit to the appeal, we affirm.
At approximately 7:20 p.m. on November 25, 1996, a cloudy and overcast night, at the intersection of State Route 14 and High Point Road in Union City, Betty Lamb, a pedestrian, attempted to cross SR 14 (Roosevelt Highway, U. S. 29) going from east to west; when she
was near the western curb of the five-lane highway, Mrs. Lаmb was struck
Beginning in October 1986, DOT began widening SR 14 from two to five lanes in the vicinity of and including the intersection as the Widening Project. As part of the Widening Project, DOT considered in the overall design the types of traffic controls to place at the intersection, which included whether or not to install a traffic signal there. Prior to October 1986, the final revision of the Widening Project plans and design was completed, and the final design negligently did not include a traffic control device at thе intersection although this would negatively affect both motorists and pedestrians crossing. In August 1987, the Widening Project was completed without a traffic control signal at the intersection. In 1996, the intersection still had no traffic light prior to the death, and the closest traffic control device to slow traffic was nearly two miles away in either direction.
Since 1987, Union City had repeatedly sought a permit from DOT to install a traffic control light at the intersection, because the intersection had a high collision rate. The Manual of Uniform Traffic Control Devices (“MUTCD”) adopted by DOT required a traffic engineering study prior to any determination to permit a traffic light. In 1987 and 1988 DOT performed such traffic engineering studies to evaluate the need for the issuance of a traffic signal permit and to determine its operational design. This MUTCD standard does not fall within the mandatory installation of traffic control devices but in the advisory area; it only recommends such installation. MUTCD contained “warrants” which describe conditions indicating the need for a traffic signal. Even where warrants existed justifying installation of such traffic signal, DOT did not permit the installation of a traffic control device until after the death. The basis for DOT’s refusal from 1986 until 1996 to issue a permit was that there was nо vehicle backup or delay at this intersection from its studies. Again in 1996, Union City requested a signal here, and DOT performed yet another traffic engineering study of the intersection. On November 20, 1996, the district field personnel recommended a signal be installed at the intersection. After November 25, 1996, DOT issued Union City the permit to install a traffic signal at this intersection. Such studies done after the completion of the Widening Project demonstrated that the traffic control device should have been included in the original planning and design to protect crossing pedestrians and to avoid collisions.
Here, SR 14 had been widened from two to five lanes, but DOT took the position that the additional through lanes created easier access from side streets through gaps in the traffic flow on the main roadway, avoiding traffic congregation, and that the intersection functioned more safely and efficiently without the presence of a stop and go traffic signal. Thus, DOT took the position that its denial of a signal was based upon sound engineering judgment, which it contended was based upon generally accepted engineering design standards and practices, because there was no problem with backup or delay, which was its primary criterion and сoncern.
However, plaintiffs’ evidence demonstrated that DOT committed design and engineering malpractice in 1986 in omitting the traffic control device, in having too short a sight distance to the intersection, in having too wide an intersection for pedestrian crossing within the sight distance, and in allowing uninterrupted vehicle approach speeds of 45 mph. In 1986, there was one accident there, and six in 1987. DOT treated these as occurring during the construction process, which was a different factor. Plaintiffs’ expert testified that during the eighteen months of the study period prior to October 13, 1987, there had been ten angle aсcidents and six other types of accidents at the intersection.
Attached to the complaint was an adequate and complete OCGA § 9-11-9.1 expert affidavit, which opined that the DOT design was negligently done through malpractice in design without the traffic control device, deviating from generally accepted engineering standards for pedestrian and vehicle safety. At trial, the plaintiffs’ expert opinion evidence showed that the original Widening Project’s designs and plans without a traffic
In 1996, when DOT determined the approval of the installation of a traffic signal, it issued a permit to the local government specifying the signal design plan and the equipment to be installed, assigning maintenance responsibility, securing power services, and allocating funding resources for installation and operation of the signal.
1. DOT contends that the trial court erred in denying DOT’s motion to dismiss for lack of subject matter jurisdiction on grounds of sovereign immunity. We do not agree for a number of reasons.
DOT’s first motion to dismiss was for failure to state a claim upon which relief can be granted and raised lack of waiver of sovereign immunity, an OCGA § 9-11-12 (b) (6) motion on the merits. The trial court considered the motion to dismiss as an OCGA § 9-11-12 (b) (6) motion on the merits and properly denied the motion. DOT’s application for interlocutory appeal was denied by this Court.
Subsequently, DOT made a motion to dismiss for lack of subject matter jurisdiction on the grounds of sovereign immunity and filed an affidavit with DOT’s traffic studies. The deposition and affidavit of plaintiffs’ expert Herman A. Hill, civil engineer, were filed in which he set out the basis for his opinion that DOT committed engineering and design malpractice. On April 19, 2001, after an OCGA § 9-11-12 (d) hearing, the trial court, after considering all the evidence on the OCGA § 9-11-12 (b) (1) motion to dismiss, denied it. This Court again denied an interlocutory appeal.
Under OCGA § 9-11-12 (b) (1), a defendant can raise a plea in abatement, which is not an adjudication on the merits, that raises the issue of the lack of subject matter jurisdiction in the trial court, but the grant of such motion only causes a dismissal of such action from the court without subject matter jurisdiction or until the condition precedent for subject matter jurisdiction has been satisfied, and the action can then be refiled. See generally
Ogden Equip. Co. v. Talmadge Farms,
“Jurisdiction of a court to afford the relief sought is a matter which should be decided preliminarily, at the outset. Jurisdiction either exists or does not exist without regard to the merit [s] of the case.”
Whitlock v. Barrett,
(a) Where the determination of subject matter jurisdiction and waiver of sovereign immunity are so factually intertwined with determination of the merits of the case, it is not error for the trial court to defer final determination of such issues until trial, and such deferral would constitute the better practice to avoid the merits of the case. See
(b) The next best approach by the trial court, where the issues of liability and subject matter jurisdiction are so intertwined that to decide subject matter jurisdiction requires determination of the merits, would be to make a preliminary determination and defer any final decision until trial on the merits. Sеe OCGA § 9-11-12 (d);
Derbyshire v. United Builders Supplies,
supra at 843;
Sherwood Mem. Park v. Bryan,
In this design and engineering malpractice action against DOT, the plaintiffs attached to their complaint an expert witness’ affidavit and submitted his deposition, which stated that DOT had committed malpractice in omitting the traffic control device from the design and planning of the Widening Project, deviating from generally accepted engineering standards then applicable. In its motion to dismiss for lack of subject matter jurisdiction, DOT attached an affidavit that identified and authenticated the DOT engineering studies.
While an OCGA § 9-11-9.1 affidavit does not require the plaintiff to prove a prima facie case, if the expеrt opinion is sufficient to demonstrate that the malpractice case is not frivolous, then it should also be sufficient for a preliminary ruling to satisfy subject matter jurisdiction.
Gadd v. Wilson & Co. &c.,
Generally, issues of the waiver of sovereign immunity are issues of law for determination by the trial court under an OCGA § 9-11-12 (b) (1) motion based upon the face of the complaint where the nature of the complaint indicates whether thеre is waiver with undisputed facts. However, under OCGA § 50-21-24, waiver of sovereign immunity may be a mixed question of law and fact for the trial court’s determination; subsections (1), (10), (12), and (13) of this Code section are based upon a factual predicate to determine nonwaiver; the
facts may be in dispute. Specifically applicable in this case, the “plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where . . . plan or design” does not waive sovereign immunity, if, and only if, the trial court finds that it was
“prepared in substantial compliance with generally accepted engineеring or design standards in effect at the time of preparation of the plan or design”
(Emphasis supplied.) OCGA § 50-21-24 (10);
Daniels v. Dept. of Transp.,
[t]he defenses specifically enumerated in paragraphs (1) through (7) of subsection (b) of this Code section, whether made in a pleading or by motion, and the motion for judgment mentioned in subsection (c) of this Code section shall be heard and determined before [the] trial on application of any рarty unless the court orders that the hearing and determination thereof be deferred until the trial.
Thus, the trial court may hear evidence to determine the defense in abatement or may defer such determination until trial. OCGA § 9-11-12 (d);
Hardy v. Arcemont,
(c) In this case, the trial court denied both a motion to dismiss based upon a failure to state a cause of action regarding sovereign immunity and a motion to dismiss for lack of subject matter jurisdiction after hearing evidence that there was a waiver of sovereign immunity by DOT’s malpractice. This Court twice refused to grant
interlocutory appeals. When the trial court determines a jurisdictional issue based upon conflicting factual issues, “[o]n appeal, the court’s finding on a factual issue will be sustained if there is evidence which authorizes the finding.” (Citation omitted.)
Hardy v. Arcemont,
supra at 243; see also
Watts v. Kegler,
When ruling on a motion to dismiss based upon jurisdictional grounds, the trial court must make the determination acting as the trier of fact. Big Canoe Corp. v. Williamson,168 Ga. App. 179 , 180 (308 SE2d 440 ) (1983); Montgomery v. USS Agri-Chem. Div., [supra at 190 (1)]. Its evaluation rests on where the preponderance of evidence lies, not necessarily on whether the issue may be decided as a matter of law. Barrow v. Gen. Motors Corp.,172 Ga. App. 287 , 288 (2) (322 SE2d 900 ) (1984).
Derbyshire v. United Builders Supplies, supra at 842-843.
In this case, the trial court submitted to the jury the determination whether or not in the design and plans for the Widening Project the failure to include a traffic control device at the intersection constituted a negligent departure from substantial compliance from generally accepted engineering practices at such time. By allowing the case to go to trial on the issue of malpractice in design, the trial court found that under OCGA § 50-21-24 (10) a waiver of sovereign
2. DOT contends that the trial court erred in denying its motion for directed verdict on the design exception to sovereign immunity. We do not agree.
“The Georgia Tort Claims Act provides a waiver of the state’s sovereign immunity for torts of state officers and employees while acting within the scope of their official duties unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24. The highway design standards exception provides” an exception only when there was no engineering design and planning malpractice by DOT. (Citations omitted.)
Dept. of Transp. v. Brown,
supra,
“Where and whether to install traffic lights were design decisions. When to open the intersection, and whether to open it without traffic lights are operational decisions, and the decision to use stop signs ... for the cross-road was a design decision.”
Dept. of Transp. v. Brown,
supra,
The design standard exception does not make reference to MUTCD; it refers to “generally accepted engineering or design standards.” While MUTCD certainly has that status in this state (OCGA § 32-6-50), it does not have the status of being the exclusive source of engineering and design standards that DOT suggests. If the legislature intended to limit the source of standards to MUTCD or to written mandatory standards as DOT suggests, it could have done so specifically, but it did not. . . . Just as expert witnesses are competent to establish standards in other professional malpractice actions (“[i]n malpractice actions, a plaintiff must present expert testimony ‘to establish the parameters of acceptable professional conduct,’ ”) we see no reason, and DOT has supplied none, why expert witnesses should not be competent to do so in actions against DOT for engineering malpractice. Contrary to DOT’S assertion on appeal, the record contains expert testimony that some of DOT’s actions and failures to act with regard to the intersection involved in this case violated generally accepted engineering standards. That testimony conforms to the requirements of the statute. We agree with the Court of Appeals that the trial court did not err in denying DOT’s motion for directed verdict on the question of whether DOT violated generally accepted engineering standards, thus removing it from the protection of the design standards exception.
(Citations omitted.) Id. at 8 (2).
Hill, a civil engineer with highway design expertise, testified for the plaintiffs that he had studied the intersection from 1978 to 1996; that historically there had been numerous
“[T]he trial court did not err in denying DOT’S motion for directed verdict on the question of whether DOT violated generally accepted engineering standards, thus removing it from the protection of the design standards exception.”
Dept. of Transp. v. Brown,
supra,
Further, John Padgett, retired DOT district traffic engineer, testified for the plaintiffs that from August 1987 until August 1988 there had been nine accidents, of which seven had been angle collisions and of which four involved injuries, which a traffic control signal would have prevented. Angela B. Bastion, former DOT traffic engineer, testified that between January 1986 and June 1987 there had been ten angle collisions at the intersection; the north sight distance from the intersection as designed by DOT was only 320 feеt; in 1994 six right angle collisions and one rear-end collision had occurred; and in 1995 there were four right angle collisions. She further testified that there was a MARTA stop at the intersection, an apartment complex on the west side of the road, and pedestrian traffic crossing SR 14 was heavy, because of a pay telephone at the AMOCO store. The nearest traffic light to the intersection was 1.97 miles away to the north.
3. DOT contends that the trial court erred in denying its motion for directed verdict on the permit exception to sovereign immunity. We agree that the permit exception prevented sovereign immunity from bеing waived as to negligence in failing to issue the permit for a traffic light after completion of the Widening Project.
Under OCGA § 50-21-24 (9), the Act creates a permit exception to waiver of sovereign immunity as to: “Licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization.”
Failure to timely issue a permit to install a traffic control device does not waive sovereign immunity.
Dept. of Transp. v. Cox,
In Divisions 1 and 2, we determined that the issue of design malpractice waived sovereign immunity, which included the failure to require that a traffic control device be installed at the intersection under the Widening Project, and which proved DOT committed design malpractice. Subsequent evidence as to the absence of the traffic control device and the various studies was relevant and mate rial as to the knowledge, necessity of, аnd feasibility of the installation of such traffic control device as part of the original Widening Project design and plans deviating from the generally accepted engineering standards at such time. The failure to direct a verdict on this issue has no effect on the verdict and judgment. Further, the effect of the denial of such motion on the verdict and judgment was not raised and preserved before the trial court in a motion for new trial.
4. The DOT contends that the trial court erred in denying its motion for directed verdict on the administratrix’s claim for preimpact pain and suffering. We do not agree.
For pre-impact pain and suffering to be awarded, the jury must have some evidence that the deceased at some point in time was conscious of her imminent death; the jury may infer such consciousness from evidence immediately prior to impact or following her injury.
Monk v. Dial,
Nonetheless, from evidence that the [van] veered shortly before the [car struck the decedent], the jury could infer that [the] decedent was aware of the impending [impact], and from these circumstances could extrapolate the probable mental state of [the] decedent in [the] last moment of consciousness. The fright, shock, and mental suffering experienced by an individual due to wrongful acts of negligence will authorize a recovery where attended with physical injury. Contrary to defendantPs] assertion, we find no requirement that the physical injury precede the mental pain and suffering.
(Citations omitted.) Id. at 362 (1).
While the driver of the car that struck Mrs. Lamb did not see her, this does not give rise to the inference that Mrs. Lamb did not both see and hear the van and the car as they bore down upon her at 45 mph when she was only part of a lane from the safety of the west curb. The headlights would have been visible to Mrs. Lamb at least 150 feet away from her. Mrs. Lamb would have been able to see the apрroaching headlights rounding the curve over 350 feet away and up to 14 seconds away. Since it would take the van approximately 120 to 180 feet to change lanes, then Mrs. Lamb would have had several seconds to realize her deadly peril as the headlights of the following car loomed behind the swerving van. Thus, Mrs. Lamb would have gone from relief at seeing the van swerve away from her to horror at seeing the car’s lights looming at her in her lane. Thus, denial of the motion was proper.
Judgment affirmed.
Notes
If the plaintiff must make out a prima facie case on the merits through his evidence to meet his burden of proof to satisfy subject matter jurisdiction, then the trial court under OCGA § 9-11-12 (d) has the authority to resolve disputed issues of fact and to draw reasonable inferences from the evidence. In such situation where liability and subject matter jurisdiction are inextricably intertwined, a ruling for the plaintiff on subject matter jurisdiction also decides the issue of liability, leaving only the issue of damages for jury determination.
However, although OCGA § 9-11-12 (d) clothes the [trial] court with discretion to hear jurisdictional issues in advance of trial, it is a legal discretion which must balance the factors favoring pretrial determination of a defense against other circumstances favoring delay, and which generally should not be exercised to consider questions of jurisdiction which are largely co-extensive with the merits of a claim. In exercising this discretion, the cotut must balance the need to test the sufficiency of the defense or objection and the right of a party to have his defense or objection promptly decided and thereby possibly avoid costly litigation against such factors as the expense and delay the hearing may cause, the difficulty or likelihood of arriving at a meaningful result at the hearing, and the possibility that the issue to be decided on the hearing is so interwoven with the merits of the case that a postponement until trial is desirable. In particular, where determination of the defense will involve going into the merits, the question may well be reserved until trial. The rule is not intended to permit fragmentary and separate trials of issues that require coherent presentation for their just determination.
(Citations and punctuation omitted.)
Ga. Power Co. v. Harrison,
By analogy, the intertwining of factual issues of subject matter jurisdiction and tort liability are like the determinаtion of Long Arm jurisdiction. See generally
Atlanta Propeller Svc. v. Hoffman GMBH & Co. KG,