413 S.E.2d 457 | Ga. Ct. App. | 1991
The appellant filed suit against the appellees herein, consisting of the City of Hogansville, the Georgia Department of Transportation, and three of the department’s employees, Edward C. Brown, Archie Burnham and David Studstill, seeking to recover damages for the alleged wrongful death of her eight-year-old son, who was struck and killed by an automobile while attempting to cross Georgia Highway 54 within.the city limits of Hogansville. Also named as defendants in the action were Olden Dansby, the driver of a taxicab in which the decedent had been riding shortly before he was struck, and Joyce Driver, the operator of the vehicle which struck the decedent. However, the claims against these latter defendants have been dismissed with prejudice, apparently as the result of settlement agreements reached with them.
The claim against the Department of Transportation and its employees is based on allegations that they negligently established or recommended the establishment of a speed limit of 45 mph for the location where the accident occurred, without performing a traffic and engineering study at that location. The claim against the City of Hogansville is based on allegations that it failed to enforce its own ordinance requiring that taxicab businesses operating within the city maintain a bond or liability insurance coverage in the amount of $100,000 for the benefit of persons injured due to the negligence of their employees. The case is before us on appeal from the trial court’s grant of summary judgment to these defendants.
1. The appellant contends that the speed limit at the location in question was required by OCGA § 40-6-181 to be set at 30 mph, absent a joint determination by the commissioner of public safety and the commissioner of transportation, predicated on a traffic and engineering investigation, that a higher speed limit was appropriate at that location.
The accident occurred in a residential district located within the city limits of Hogansville. OCGA § 40-6-181 (b) specifies, in pertinent
It is evident without dispute that the speed limit at the location in question was not set pursuant to OCGA § 40-6-182 — that is, by joint action of the commissioners of transportation and public safety. Appellee Brown submitted an affidavit averring that he had performed engineering and traffic investigations for the subject portion of Highway 54 in 1983 and 1985, and further averring that the speed limit for this location was set at 45 mph by the City Council of Hogansville in 1985. A copy of the ordinance in question is attached to this affidavit, and there appears to be no dispute as to its authenticity. However, in support of its motion for summary judgment, the City of Hogansville submitted an affidavit from another DOT employee, Jerry J. Dubberly, who identified himself as the General Operations Engineer for the Office of Traffic and Safety for the Georgia Department of Transportation and who averred that “ [i]t [was] the Georgia Department of Transportation and not the City of Hogansville, which actually determined and set the speed limit at 45 miles per hour.”
There seems to be no question that the city was authorized by OCGA § 40-6-183 (b), supra, to set a 45 mph speed limit at the location in question, and as previously indicated, it is apparent without dispute that the city passed an ordinance in 1985 doing so. We have been cited to no statutory authority under which the DOT would have been authorized to preempt the city’s action in this regard merely to set its own identical speed limit at this location, nor can we
2. The appellant contends that, acting in their capacity as Department of' Transportation employees, appellees Brown, Burnham and Studstill negligently and unlawfully recommended a speed limit of 45 mph for the location in question without the benefit of an engineering and traffic study. However, it is apparent without dispute from affidavits submitted by Brown and other departmental employees that the recommendation in question was in fact predicated on a traffic and engineering study performed by Brown himself. Moreover, the making of this recommendation was quite obviously a discretionary rather than a ministerial function. “[I]f the [public] employee acted in his official capacity and the challenged act involved the performance of a discretionary duty, the employee is entitled to the defense of official immunity provided the act complained of was not malicious, wilful, or corrupt, or done in reckless disregard for the safety of others.” Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). See generally Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980). There being no allegation or suggestion that these employees acted maliciously or in reckless disregard of the public safety in recommending a 45 mph speed limit for the location in question, the trial court did not err in granting their motion for summary judgment.
3. The appellant contends that the trial court erred both in striking certain affidavit testimony she had obtained from several area res
4. As previously indicated, the appellant’s claim against the City of Hogansville was predicated on its alleged failure to enforce its own ordinance requiring taxicab businesses licensed by it to maintain a bond or liability insurance coverage in the amount of $100,000 in favor of persons injured due to the negligence of their agents or employees. However, inasmuch as the appellant has dismissed her claims against Mr. Dansby and his taxicab company with prejudice, she is no longer in a position to establish the extent, if any, to which their lack of insurance coverage or other assets prevented her from obtaining full recovery for her injuries. It follows that the trial court did not err in granting the city’s motion for summary judgment on this claim.
Judgment affirmed.