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The Georgia Department of Transportation v. Balamo

Court of Appeals of Georgia, Second Division

October 16, 2017

THE GEORGIA DEPARTMENT OF TRANSPORTATION
v.
BALAMO.

          MILLER, P. J., DOYLE and REESE, JJ.

          Miller, Presiding Judge.

         Samuel Che Balamo sued the Georgia Department of Transportation ("GDOT") after he was injured when he lost control of his car on a wet road in 2005. GDOT moved to dismiss for lack of subject-matter jurisdiction due to sovereign immunity or, alternatively, for summary judgment on the ground that Balamo had not established the elements of negligence. The trial court denied both motions, and this interlocutory appeal ensued.[1] We conclude that Balamo's claims are barred by sovereign immunity and thus the trial court should have dismissed Balamo's claims for lack of subject matter jurisdiction. Accordingly, 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 . . . . [F]actual findings by the trial court in support of its legal decision are sustained if there is evidence authorizing them." (Punctuation and footnote omitted.) Ga. Dept. of Corrections v. James, 312 Ga.App. 190, 193 (718 S.E.2d 55) (2011), overruled on other grounds, Rivera v. Washington, 298 Ga. 770, 778, n. 7 (784 S.E.2d 775) (2016); Dept. of Transp. v. Dupree, 256 Ga.App. 668, 673 (1) (b) (570 S.E.2d 1) (2002) ("under OCGA § 50-21-24, waiver of sovereign immunity may be a mixed question of law and fact for the trial court's determination").

         So viewed, the record shows that around 5:50 a.m. on November 29, 2005, Balamo was driving towards Milledgeville on State Route 24 on his way to work. It was raining at the time, and he was driving between 40 and 45 mph. As the rain increased, Balamo tried to slow down, applying the brakes as he began to travel downhill. Nevertheless, he lost control of the truck, crossed into oncoming traffic, and collided with a tractor trailer. As a result of this accident, Balamo was seriously injured.

         Balamo sued GDOT under the Georgia Tort Claims Act ("GTCA"), OCGA § 50-21-20 et seq., alleging in his complaint negligent road design and operation. Attached to the complaint was an affidavit from an expert, Herman Hill, opining that the road failed to comply with accepted standards for design and maintenance. GDOT moved to dismiss for lack of subject-matter jurisdiction, arguing that it was immune from suits based on negligent design of the roadway under OCGA § 50-21-24 (10). Alternatively, GDOT moved for summary judgment on the elements of negligence. The trial court denied the motions, and this interlocutory appeal followed.

         1. In its first enumeration of error, GDOT argues that Balamo's claim is one for negligent design of the road and, as such, is barred by sovereign immunity. We agree.

         Under Article I, Section II, Paragraph IX (e) of the Georgia Constitution of 1983,

sovereign immunity from suit extends to all state departments and agencies unless properly waived through an act passed by the General Assembly. . . . Sovereign immunity is waived by a legislative act only if the statutory language specifically provides that sovereign immunity is waived and the extent of such waiver.

(Citations and punctuation omitted.) Pelham v. Bd. of Regents of the Univ. System of Ga., 321 Ga.App. 791, 793 (1) (743 S.E.2d 469) (2013). The GTCA waives the state's sovereign immunity for torts committed by state officers and employees acting within the scope of their official duties or employment. OCGA § 50-21-23. The conditions and limitations of a statute that waives immunity must be strictly followed. Ga. Dept. of Labor v. RTT Assoc., Inc., 299 Ga. 78, 83 (2) (786 S.E.2d 840) (2016).

         The waiver of immunity in the GTCA is subject to certain exclusions, including when the roadway's plan or design substantially complies with the generally accepted engineering design standards. See OCGA § 50-21-24; Diamond v. Dept. of Transp., 326 Ga.App. 189, 190-191 (1) (756 S.E.2d 277) (2014); Pelham, supra, 321 Ga.App. at 794-795 (2) (citation omitted). Thus, the state remains immune from suits arising out of

[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.

OCGA § 50-21-24 (10).

         Whether GDOT is entitled to sovereign immunity based on the design exception in OCGA § 50-21-24 (10), "is a threshold issue that the trial court was required to address before reaching the merits of any other argument." (Citation omitted.) Gonzalez v. Ga. Dept. of Transp., 329 Ga.App. 224, 225 (764 S.E.2d 462) (2014); Sadler v. Dept. of Transp. of the State of Ga., 311 Ga.App. 601, 603 (716 S.E.2d 639) (2011). "[I]f [GDOT] is entitled to immunity under . . . OCGA ยง 50-21-24 (10), then the trial court lacks ...


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