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Negligence, etc. Fulton State Court. Before Judge Dixon.
Judgment affirmed in part, reversed in part, and vacated in part in Case No. A14A1486. Judgment affirmed in part and vacated in part in Case No. A14A1487.
Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, G. Michael Banick, Kirsten S. Daughdril, Senior Assistant Attorneys General, Sharon P. Horne, Assistant Attorney General, for appellant (case no. A14A1486).
Barnes Law Group, Roy E. Barnes, John F. Salter, Allison B. Salter, for appellant (case no. A14A1487).
Mark E. Murray, Weinberg, Wheeler, Hudgins, Gunn & Dial, Patrick B. Moore, Shubhra R. Mashelkar, for appellees.
ANDREWS, Presiding Judge. McFadden and Ray, JJ., concur.
Andrews, Presiding Judge.
These interlocutory appeals arise out of an action by Pamela and Ronnie Owens, individually and as parents and personal representative of the Estate of Christopher Rondale Owens (" Owens" ), Ryan Montgomery, and Scottie Joseph Thibodaux (" Appellees" ) against C. W. Matthews Contracting Company, Inc. (" CW Matthews" ), the Georgia Department of Transportation (" GDOT" ), and other defendants asserting claims of negligence and wrongful death arising out of a collision at a construction site along Interstate 75/85 (" I-75/85" ) in Atlanta in which Owens was killed and Montgomery and Thibodaux suffered severe injuries. In Case No. A14A1487, CW Matthews appeals from the trial court's order denying its motion for reconsideration of the trial court's prior order denying in large part CW Matthews' motion for summary judgment, which had argued, among other things, that Appellees could not establish proximate causation. CW Matthews also appeals from the trial court's orders denying motions to exclude testimony of two of Appellees' experts. In Case No. A14A1486, GDOT appeals from the trial court's order denying its motion to dismiss based on sovereign immunity and the same orders at issue in Case No. A14A1487 denying the motions to exclude expert testimony. In Case No. A14A1487, we affirm the trial court's order denying summary judgment, concluding that proximate causation is a question of fact. In Case No. A14A1486, we affirm in part and reverse in part the trial court's order denying GDOT's motion to dismiss, concluding that GDOT is entitled to immunity from claims relating to approval of traffic control plans for the construction site and on-site inspection of CW Matthews' traffic control activities. In both cases, we affirm the trial court's order denying the parties' motion to exclude Jeffrey Kidd's testimony but affirm in part and vacate in part its order on the motion to exclude Ruston Hunt's testimony.
[330 Ga.App. 124] In an appeal from the denial of a motion for summary judgment, we conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving
party, warrant judgment as a matter of law. Benton v. Benton, 280 Ga. 468, 470 (629 S.E.2d 204) (2006). So viewed, the record shows that Owens, Thibodaux and Montgomery, all members of the United States Army stationed at Fort Benning, drove to Atlanta in a rented Jeep Patriot to spend the weekend of May 14, 2010 there and celebrate with one of their friends, Aleyda Amaya, who was being relocated. Montgomery testified that when they went out in Atlanta on the evening of May 15, 2010, Owens was the designated driver because he was not the " party" type. Owens, Thibodaux and Montgomery met Amaya and others at the nightclub Esso. One of Amaya's friends saw Owens with a drink in his hand at the nightclub but testified that he did not look intoxicated at any point that evening. Owens, Thibodaux, Montgomery and their friends left Esso between 2:00 and 3:00 a.m. Amaya's friend testified that the group planned to meet at a Waffle House but that Owens, Thibodaux and Montgomery were going to make one stop first.
In the early morning of May 16, 2010 while it was still dark, CW Matthews, a contractor for GDOT on a project called the 14th Street Bridge project, was conducting repaving work on the right shoulder on the southbound side of I-75/85 just north of the 10th Street Bridge in Atlanta. At approximately 5:00 a.m., Garth Barnett, a contract dump truck driver, was planning to deliver his last load of asphalt for the night to the construction site. In a discovery response, Barnett stated that his dump truck was among other dump trucks approaching the work site at around 40 miles per hour or less. He slowed some more as the dump truck ahead of him prepared to pass through the placards marking the path to move to the end of the line of trucks ahead of the paver on the shoulder. Barnett testified that he was in the second lane over from the right shoulder (the " second lane" ). Barnett first testified that the second lane was not an open lane of travel at the time but then stated that he could not recall whether it was open. He believed, however, that at least at some point along the roadway, two right lanes were closed. Barnett told police that he was driving approximately 25 miles per hour in the second lane when Owens' Jeep struck his dump truck from behind. At the time of the [330 Ga.App. 125] collision, Barnett had activated the four-way flashers on his truck, and he had reflective tape on the back of the vehicle.
Montgomery and Thibodaux were both asleep when the collision occurred. Montgomery testified that at the time of the collision, Owens had not slept since waking up Saturday morning. Post-mortem tests showed that Owens' blood alcohol content was 0.069. The crash data retrieval report produced from the Jeep's airbag control module (" CDR report" ) revealed that in the five seconds prior to the crash, Owens was traveling 70 miles per hour, the engine throttle percentage remained relatively constant at approximately 17 percent, and Owens did not brake. The posted speed limit in the area where the accident occurred was 55 miles per hour.
Charles Payne, another dump truck driver, testified that he was driving southbound on I-75/85 when he saw Owens' Jeep merge onto I-75/85 from Interstate 85 in his left rearview mirror. According to Payne, as soon as the Jeep passed him, it swerved in front of him and veered across four or five lanes of traffic without signaling and collided with Barnett's dump truck. Payne estimated that the Jeep hit Barnett's dump truck at an angle of about 45 degrees. Barnett thought that if the Jeep had not hit the dump truck it would have kept going and hit the CW Matthews work crew.
Police officer Nadia Byrd witnessed the collision from behind while she was about one-and-a-half car lengths away in the far right lane (the " first lane" ). At the time, Byrd was providing a police presence behind the cone truck that was setting up a lane closure closing the first lane. She had flashing lights on the top and in the rear window of her vehicle. Byrd testified that Barnett's dump truck was in the second lane at the time of the collision, which was an open lane of travel,
and that it appeared that Barnett had slowed to try to get in the lane closure. She thought Barnett's truck was going 15 miles per hour or less. Byrd did not see the Jeep until it passed her but testified that it was coming " straight on" when it hit Barnett's truck.
Maurice Harrell was sitting in his dump truck on the right shoulder about three truck lengths ahead of Barnett's truck at the time of the collision. According to Harrell, the Jeep was in a closed lane of travel at the time of the accident. He stated that CW Matthews' dispatcher had advised truck drivers that " we need to enter the project ... inside those two right lanes that we were working in."
Lights from various sources illuminated the area where the collision took place, including from street lights, surrounding commercial buildings, and halogen lights mounted on construction equipment. Signs ahead of the construction site stated that one right-hand [330 Ga.App. 126] lane was closed. The lane closure began with a series of barrels tapering to the left, and an arrow board at the beginning of the taper directed motorists to move left.
Marvin Dunson, CW Matthews' division manager for asphalt lay down, testified that any time there is going to be a lane closure the plans will be submitted to GDOT in advance in a traffic interruption report (" TIR" ). Dunson also stated that GDOT's policy was that CW Matthews could not close down more lanes than specified in the TIR but could decide to close fewer. If CW Matthews changed the lane closure plan, it would notify GDOT. Dunson stated that CW Matthews initially planned to close the right shoulder and two right-hand lanes because he was uncertain if the planned work would extend into the first lane. When he realized it would not, he decided to close one lane. According to Dunson, truck drivers were instructed that once they passed the taper and all of the equipment with flashing lights, they could enter the project where they felt safe to do so. Rob Lovett, CW Matthews' project night superintendent for traffic control, testified that he may release traffic once the lane closure extends past the paving equipment. Prior to the collision, he released traffic before all of the panels closing the first lane were in place.
Dunson testified that after he was notified of the accident, he drove past the lane closure to get to the scene and saw that only one lane was closed. When he got to the accident scene and noticed that the Jeep was in a live lane of traffic, he took some panels and moved them to incorporate that lane into the lane closure. The first responders also started moving panels around. Dunson testified that at some point the lane closure was extended to allow the paving crew to finish its work and remove the equipment while the accident investigation was going on. Dunson admitted, however, that a photograph Lovett took minutes after the accident showed a line of panels closing two lanes south of the accident past the 10th Street Bridge. Dunson could not say who would have moved those panels.
Herman Hill, Appellees' engineering expert, testified that because of the limited work space at the construction site and various factors affecting the visibility of work trucks in the roadway, a double lane closure was needed to allow trucks to access the work site more easily; that to the extent a single lane was closed, there should have been a sign warning motorists that trucks would be entering or leaving the work site, a larger opening for trucks to enter the work site, and a reduced speed limit; and that CW Matthews failed to adequately instruct truck drivers on how to safely enter the work site and did not [330 Ga.App. 127] properly communicate its lane closure plans. The opinions of Appellees' other experts are discussed in Division 1.
Case No. A14A1487
1. CW Matthews argues that the trial court abused its discretion in denying its motions to exclude the expert testimony of Appellees' human factors expert, Ruston Hunt, and their accident reconstruction expert, Jeffrey Kidd. " The ...