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Department of Transportation v. Jarvie

Court of Appeals of Georgia

November 17, 2014

DEPARTMENT OF TRANSPORTATION
v.
JARVIE et al

Sovereign immunity. McIntosh Superior Court. Before Judge Russell.

Judgment reversed.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Robert L. Bunner, Senior Assistant Attorneys General, for appellant.

Savage & Turner, Robert B. Turner, Conner Law Group, David M. Conner, Southeast Law, LLC, Ashleigh R. Madison, Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard A. Brown, for appellees.

DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.

OPINION

Page 95

Doyle, Presiding Judge.

The Georgia Department of Transportation (" DOT" ) appeals from the denial of its motion to dismiss a lawsuit filed by the surviving children of William Jarvie, who died as a passenger in a collision with a construction vehicle on Interstate 95. The DOT contends that the trial court erred by ruling that it was not entitled to sovereign immunity, arguing that the licensing powers exception to the waiver of immunity under the Georgia Tort Claims Act (" GTCA" ) prohibits liability for the DOT's approval of a construction methodology proposed and designed by an independent contractor. For the reasons that follow, we reverse.

" We review de novo a trial court's denial of a motion to dismiss based on sovereign immunity grounds, which is a matter of law. However, factual findings by the trial court in support of its legal decision are sustained if there is evidence authorizing them." [1]

Page 96

The record shows that in 2007, the DOT awarded a contract to Plant Improvement Company, Inc., d/b/a Seaboard Construction Company (" Seaboard" ) to act as the general contractor for a road-widening project on Interstate 95. The project involved installing large quantities of aggregate rock to construct the road bed, so Seaboard submitted a written request for permission from the DOT to stockpile aggregate material in the highway median. The DOT responded in a letter giving Seaboard permission to construct a stockpile area subject to certain conditions, including that Seaboard submit a traffic control plan for DOT approval. Although the traffic control plan has not been located during this litigation, it is undisputed that the DOT ultimately approved Seaboard's request to stockpile the material in the median.

The plaintiffs allege that in April 2009, Jarvie was a passenger in a vehicle traveling in the left lane on Interstate 95 when the vehicle collided with a dump truck entering the highway from the median at the material storage area. The dump truck was driven by Jeffrey Wallace, an operator working for Flo Jo, a subcontractor of Seaboard. The plaintiffs sued Wallace, Flo Jo, Seaboard, and the DOT for each party's role in causing Jarvie's death. With respect to the DOT, the plaintiffs allege that the DOT negligently designed, constructed, and [329 Ga.App. 682] maintained the construction vehicle access and egress to the interstate median. In particular, the complaint alleges that the stockpile site lacked certain safety features such as acceleration or deceleration lanes for construction vehicles, dust control measures, proper warning signs, adequate field monitoring, and appropriate operating hours.

After filing an answer and conducting discovery, the DOT moved to dismiss the complaint on sovereign immunity grounds. Following a hearing, the trial court denied the motion in a one-sentence order, giving rise to this appeal.[2]

" Under Georgia law ... sovereign immunity has constitutional status, and that immunity may be waived only by an act of the General Assembly or by the Constitution itself." [3] " [A]ny waiver of sovereign immunity must be established by the party seeking to benefit from that ...


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