While driving on Interstate 20 in Greene County in rainy weather, Estelle Meshal Crooms lost control of her vehicle, spun off the road across the grass right-of-way adjacent to the interstate, and crashed into trees. Crooms was injured in the single-vehicle accident and a passenger in the vehicle, Crooms’s minor daughter, Courtney Crooms, was killed. Crooms and her husband, Derick Crooms, sued the Georgia Department of Transportation (DOT) for the wrongful death of their daughter, injuries suffered by Crooms in the accident, and loss of consortium. The complaint, brought pursuant to the Georgia Tort Claims Act (GTCA) (OCGA § 50-21-20 et seq.), alleged that Crooms lost control because her vehicle hydroplaned on rain water, and that the DOT was responsible because it negligently failed to maintain Interstate 20 in a safe condition that would have prevented the accident.
Pursuant to OCGA§ 9-11-12 (b) (1), the DOT moved prior to trial for dismissal of the complaint asserting that, because it had sovereign immunity from the suit under the GTCA, the court lacked subject matter jurisdiction. After considering evidence supporting and opposing the motion, the trial court ruled that the DOT was not immune and denied the motion. The DOT brought this direct appeal.
Under the GTCA, sovereign immunity granted by the Georgia Constitution to the State and its departments, including the DOT, is waived subject to certain exceptions. Ga. Forestry Comm. v. Canady,
In its dismissal motion, the DOT asserted that the GTCA exception to the waiver of immunity set forth in subsection (10) of OCGA § 50-21-24 established that it was immune from any claim based on the contention that it negligently failed to maintain Interstate 20 in a safe condition. Subsection (10) provides that
[t]he 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 exception set forth in OCGA § 50-21-24 (10) retained the DOT’s immunity from a claim that an accident was proximately caused by the DOT’s negligent failure to adequately design and construct a roadway, as long as the evidence shows that the roadway was originally designed and constructed in substantial compliance with generally accepted engineering or design standards in effect at the time of the original design. Dept. of Transp. v. Cox,
In the present case, there is no evidence that the DOT elected to improve Interstate 20 by altering its original design and construction, nor is there any evidence that the original design and construction of Interstate 20 was not in substantial compliance with generally accepted engineering or design standards in effect at the time of the original design. Accordingly, under OCGA § 50-21-24 (10), the DOT remained immune from any claim that the accident at issue was proximately caused by a negligent failure to adequately design or construct Interstate 20 in a manner that would have prevented Crooms’s vehicle from hydroplaning on rain water. In fact, after the DOT moved for dismissal of the complaint on the basis of sovereign immunity provided under the design exception set forth in OCGA § 50-21-24 (10), the Croomses entered into a stipulation with the DOT stating that “the parties hereby stipulate that the Plaintiffs have not and shall not assert or allege any claim against the DOT for damages arising out of negligent design or professional negligence.”
Rather, the Croomses contend that their complaint asserted ordinary negligence based on an allegation that the DOT negligently maintained Interstate 20 for which OCGA § 50-21-24 (10) provides no immunity. In support of this contention, the Croomses provided evidence showing that Crooms was driving on a section of Interstate 20 that had just experienced heavy rainfall; that while traveling 12 to 14 miles per hour below the posted speed limit she suddenly felt her steering wheel pull to the right; that she lost control of her vehicle, spun off the roadway, and crashed; and that she lost control because her vehicle hydroplaned on rain water on the roadway. The Croomses produced a professional engineer who testified that, based on rainfall data at or before the time of the accident, and considering the flow of rain water on the cross slope of Interstate 20, Crooms lost control of her vehicle because she hydroplaned on rain water flowing off
Assuming that Crooms lost control of her vehicle and crashed because of a hydroplaning hazard on Interstate 20 that the DOT knew about or should have known about, there is no evidence in the record that the hazard existed because Interstate 20 had deteriorated in some manner so that it no longer substantially conformed to its original design and construction. The DOT provided evidence based on surveys made after Crooms’s accident that showed the section of Interstate 20 at issue was originally designed and constructed, and thereafter maintained, in conformance with the generally accepted design standards in effect at the time of the original design. Nevertheless, the Croomses contend in their brief on appeal that the DOT had a duty to address a hydroplaning hazard at the accident site as part of routine maintenance to restore Interstate 20 because “concrete surfaces such as the roadway at issue wear down and need to be restored.” In support of their contention that Interstate 20 was worn down at the location of the accident and needed to be restored or maintained, the Croomses cited to a portion of an affidavit by one of their expert engineers filed in response to the DOT’s motion to dismiss about a year after the engineer’s deposition. The affidavit addresses the engineer’s prior deposition testimony about an increased accumulation of rain water where Interstate 20 was designed with little or no cross slope, and the steps he recommended that the DOT take to make the surface of the roadway safer. The affidavit states:
This area of accumulation of water on the roadway can and should have been remedied with minor, small scale, inexpensive maintenance activities affecting the surface of the roadway. This type of maintenance is regularly performed by or through the DOT maintenance department in response to areas of roadway that are accumulating water. The DOT regularly, as part of its ordinary maintenance of the state highway system, responds to problem areas where wrecks are occurring by implementing such small scale remedies, that in no way change the design of the roadway. Indeed, over time, the concrete surface of the roadway wears down and needs to be restored when there is a history of accidents at a particular, discrete location. This is a maintenance function and the responsibility of the maintenance department of the DOT. While the geometric configuration of 1-20 westbound in this area has not changed since it was built approximately forty years ago, there can be no question that the concrete surface was no longer in the same condition forty years later.
The affidavit does not state that the engineer saw any deteriorated or worn down areas of Interstate 20 at the accident location; it does not refer to any observation or measurement showing that Interstate 20 was deteriorated
In fact, the engineer’s earlier deposition testimony confirms that he examined Interstate 20 at the accident site and reported no visible wear or deterioration in the roadway. In the deposition, the engineer testified that the construction of Interstate 20’s concrete road surface according to the original design was completed in the early 1970s, and that he visited, surveyed, and photographed the roadway at the accident site in 2007. When asked at his deposition what observable evidence was present at the accident site on Interstate 20 to show that the roadway was unsafe, the engineer pointed only to: (1) the history of similar hydroplane accidents at that location, and (2) the original design of Interstate 20 in the transition area between cross slopes at that location. The engineer was specifically asked at his deposition: “Did you ever make a comparison with the designed cross slope for the same area that you surveyed and how it compared with what you surveyed out there? In other words, did you compare the design plans to what was ultimately constructed or what actually exists out there today?” He responded that he did not make that comparison; that he did not test the roadway for rain water flow; that he did not check the roadway for wear or rutting caused by wheel tracks or for cracking; and that he did not test the roadway for “skid-resistance numbers or pavement texture.” The engineer testified he was aware that in the late 1990s the DOT employed contractors to do routine maintenance work on the concrete surface of Interstate 20 in the subject area, and concluded that “if there were any construction defects in the material or surface itself, those kinds of work by contractors would be removing that anyway.” The engineer further testified that the DOT’s maintenance work did not change the design or geometries of the roadway, and that he had no criticisms of the maintenance work. Finally, he was asked: “Isn’t the problem with the roadway, whatever this problem is, a problem at the time it was built?” to which he responded, “Could have been. I don’t have any information about that.”
To the extent the engineer’s earlier deposition testimony contradicted his affidavit opinion regarding the condition of the roadway at the accident site, the contradiction cannot be addressed by this Court under the contradictory testimony rule in Prophecy Corp. v. Charles Rossignol, Inc.,
As the record stands after disregarding the engineer’s speculative opinion, there is no evidence showing that the DOT failed to originally design, construct, and thereafter maintain Interstate 20 in substantial compliance with then-existing engineering or design standards. It follows that there is no evidence to support the Croomses’ claim that a hydroplaning hazard on Interstate 20, which caused Grooms to lose control of her vehicle and crash, was caused by the DOT’s negligent failure to maintain the roadway in substantial conformance with its original design and construction. Assuming that Interstate 20, as originally designed and constructed, presented a known hydroplaning hazard at the location of Crooms’s accident, the DOT remained immune pursuant to OCGA § 50-21-24 (10) from any claim that it negligently failed to take steps to make the roadway safer to eliminate the hazard. Because the Croomses failed to carry their burden to establish a waiver of the DOT’s immunity, the trial court erred by finding the DOT was not immune and by denying the DOT’s motion to dismiss the complaint.
Judgment reversed.
Notes
Although the order denying the DOT’s motion pursuant to OCGA §9-11-12 (b)(1) was not a directly appealable final judgment under OCGA § 5-6-34 (a) (1), we have jurisdiction to consider the DOT’s direct appeal of this ruling pursuant to the collateral order exception to the final judgment rule. Bd. of Regents &c. of Ga. v. Canas,
We need not address the DOT’s additional enumerations of error contending on other grounds that the trial court was required to dismiss the complaint.