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The Georgia Department of Transportation v. Delor

Court of Appeals of Georgia, Fourth Division

June 27, 2019

THE GEORGIA DEPARTMENT OF TRANSPORTATION
v.
DELOR et al. C AND H PAVING, INC.
v.
DELOR et al. CSX TRANSPORTATION, INC.
v.
DELOR et al. DELOR et al.
v.
CSX TRANSPORTATION, INC.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          DOYLE, PRESIDING JUDGE

         Alexander Delor and John Harof, Jr. ("the decedents"), died in a motor vehicle accident when the car they were in spun off the road after traversing a railroad crossing that recently had been updated with concrete panels. The decedents' parents, David Delor and John Harof, Sr., sued the Georgia Department of Transportation ("GDOT"), CSX Railroad, and C and H Paving (hereinafter "C&H Paving"), which paved the crossing after installation of the panels. The parties filed various motions, and the trial court granted some of them and denied others. We have consolidated the parties' subsequent interlocutory appeals for purposes of this opinion. In Case No. A19A0361, GDOT appeals the denial of its summary judgment motion, its motion to dismiss, and its motion to exclude the testimony of three of the plaintiffs' experts. In Case No. A19A0362, C&H appeals the denial of its summary judgment motion. In Case No. A19A0364, the plaintiffs appeal the grant of partial summary judgment to CSX on the issue of liability for a joint enterprise. In Case No. A19A0363, CSX appeals the denial of its summary judgment motion and its motion to exclude the testimony of two of the plaintiffs' experts. For the reasons that follow, we affirm in Case Nos. A19A0361, A19A0362, and A19A0364. In Case No. A19A0363, we affirm in part and reverse in part.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is 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.[1]

         So viewed, the record shows that in January 2011, as part of a state-wide improvement project, GDOT contracted with CSX to install prefabricated concrete panels at a Milledgeville railroad crossing ("the crossing") that intersects with State Route 24 (also known as U.S. Highway 441).[2] The contract required CSX to purchase the materials, install the concrete panels, and hire a paving contractor; GDOT agreed "to provide the necessary road traffic control and detour signing during the installation of the prefabricated concrete crossing systems" and to supply a "representative who shall be responsible for the inspection of the work. . . ."

         After receiving written authorization from GDOT to proceed, CSX and its paving subcontractor, C&H, performed the work on the crossing on September 14 and 15, 2011. GDOT barricaded the roadway on both sides of the crossing to close it to through traffic and installed warning signs and signage marking a detour route. CSX removed the existing track, cross-ties, and asphalt; dug a trench on the north and south sides for the new concrete panels; installed dirt and ballast, new cross-ties, and the prefabricated concrete panels; and filled the trenches with dirt. C&H then paved over the trenches with asphalt.

         On September 15, 2011, GDOT's assistant area engineer, Bryan Haines, inspected the work at the crossing. At the conclusion of the inspection, Haines advised Norris Hunt (the CSX employee in charge of the work at the crossing) that he "would like to see a smoother transition on the paving, especially on the south side of tracks to provide a smoother ride and tie[-]in with the [highway]."[3] As he explained to Hunt, Haines's "goal was to obtain a smoother tie-in, . . . to try to get as smooth and enhanced ride-ability [sic] as possible for the traveling public." Chadwick Norris, C&H's paving crew chief, was present during the conversation between Haines and Hunt. Haines later testified at his deposition that he did not believe that the installers had the equipment necessary to properly pave the tie-in. CSX refused to perform additional paving work on the tie-ins, but agreed to pay for the additional asphalt, and GDOT agreed to perform the additional paving.[4] Haines remained on-site until the construction detour was removed and the crossing was reopened. There were no warning signs put up to advise drivers of the unsatisfactory asphalt at the crossing.

         On September 22, 2011, one week after the inspection and reopening of the crossing, the decedents were in the backseat of a Mini Cooper traveling southbound on State Route 24. As the car traversed the southern tie-in of the crossing, the driver lost control, and the car veered off the road and into a tree, killing the decedents.

         The plaintiffs filed this wrongful death action, alleging that the defendants, as a result of their negligence and wrongful acts, created and permitted "a dangerous and hazardous condition . . . that resulted in the death of [the decedents]" and that the

[d]efendants were negligent in failing to provide any warnings, through safety signage and/or devices, alerting the motoring public . . . that the defective ramp-like formation of the paving patch tie-in on the north and south side of the [r]ailroad [c]rossing was an extremely dangerous road hazard and required caution upon approaching and traversing the . . . [c]rossing.

         The plaintiffs also alleged that the "[d]efendants are jointly and severally liable for each other's negligent acts and omissions" because they "were acting in a joint enterprise and/or joint venture and exercised mutual control over the repair and maintenance work performed at the . . . [c]rossing. . . ."

         The defendants filed multiple motions in the trial court, including motions for summary judgment, a motion to dismiss, and motions to exclude expert witnesses. The trial court entered the following orders: (1) an order denying GDOT's motion for summary judgment based on ownership of the crossing, breach of duty, and causation; (2) an order denying GDOT's motion to dismiss based on sovereign immunity, but granting the motion as to the theory of a joint venture; (3) an order denying GDOT's motion to dismiss based on the plaintiffs' failure to file an expert affidavit; (4) an order denying GDOT's motion to exclude the expert testimony of three of the plaintiffs' experts; (5) an order denying CSX's motion for summary judgment; (6) and order denying C&H's motion for summary judgment based on the acceptance doctrine; and (6) an order denying in part and granting in part C&H's motion to exclude the testimony of two of the plaintiffs' experts. These interlocutory appeals followed.

         Case No. A19A0361

         1. Sovereign immunity. GDOT contends that the trial court erred by denying its motion to dismiss based on sovereign immunity under OCGA § 9-11-12 (b) (1). We disagree.

         "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."[5]

         Pursuant to the Georgia Constitution of 1983, "sovereign immunity extends to the [S]tate and all of its departments and agencies. The sovereign immunity of the [S]tate and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver."[6] Generally, the Georgia Tort Claims Act ("GTCA") waives the sovereign immunity of the State and its departments for "the torts of [S]tate officers and employees acting within the scope of their official duties or employment," subject to certain exceptions.[7] GDOT contends that the inspection powers/functions, licensing powers/function, and design/plan exceptions apply in this case.[8]

         (a) GDOT's liability with regard to its contractors. The trial court concluded that GDOT "is not liable for the actions of contractors." The court also concluded, however, that GDOT could be held liable for "its own actions in allowing road traffic [while] knowing of a defective condition," citing Ga. Dept. of Transp. v. Kovalcik.[9]In Kovalcik, this Court concluded that "the presence of contractors performing services on behalf of [GDOT] does not relieve [GDOT] from potential liability for its own actions."[10]

         GDOT maintains that Kovalcik is inapposite because in that case, it was undisputed that GDOT owned the roadway at issue, [11] while here, GDOT does not own the crossing or the railroad right-of-way that the decedents traversed before their accident. The question of who holds the deed to a roadway has not been treated as a relevant consideration when determining whether GDOT has authority over that road. Instead, the pivotal question is whether the road is part of the State highway system.[12]Here, it is undisputed that the road in question - State Route 24 - is identified by statute as part of the State highway system.[13] Thus, this argument is without merit.

         (b) Licensing powers/function exception. The licensing exception provides that "[t]he [S]tate shall have no liability for losses resulting from . . . [l]icensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization."[14] "[T]his exception, by its plain terms, is not strictly limited to decisions related to permits or licenses. Instead, it also applies as to decisions relating to issuance, denial, suspension, or revocation of approvals."[15]

         The licensing exception immunizes GDOT from certain potential claims, for example: pre-construction approval of a contractor's traffic control plan, [16] approval of construction plans, [17] approval of plans to use an interstate median to stockpile construction materials, [18] and permitting the construction of a wall near the intersection of a State highway.[19] It does not, however, provide immunity for liability for the plaintiffs' claims regarding GDOT's decision on whether and how to re-open the crossing after C&H completed its paving work.[20]

         (c) Inspection powers/function exception. The inspection exception provides that

[t]he [S]tate shall have no liability for losses resulting from . . . [i]nspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the [S]tate to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.[21]

         But the plaintiffs are not alleging that GDOT negligently inspected the property. Instead, they contend that GDOT negligently re-opened the hazardous crossing, an action to which the inspection powers/function does not apply.[22]

         (d) Design/plan exception. The design exception provides that

"[t]he [S]tate 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."[23]

         Here, again, the plaintiffs are not alleging that GDOT negligently designed the crossing. In fact, GDOT did not provide a plan or design for the paving of the crossing, and no GDOT employee approved the paving in advance. Thus, this exception is also inapplicable to the plaintiffs' claims against GDOT.

         2. Motion to dismiss for failure to comply with OCGA § 9-11-9.1. Next, GDOT contends that the trial court erred by denying its motion to dismiss based on the plaintiffs' failure to file an expert affidavit. We disagree.

         OCGA § 9-11-9.1 requires plaintiffs to attach to their complaint the affidavit of an expert in an action alleging professional malpractice by 25 categories of professionals.[24] But the plaintiffs do not allege that GDOT is liable for the actions or inactions of one of the categories listed or described in OCGA §§ 9-11-9.1 (g).[25]Instead, they allege that GDOT negligently made the decision to reopen the crossing when it remained in a dangerous condition following repairs. Thus, no expert affidavit was required to be filed with the plaintiffs' complaint.[26]

         3. Summary judgment based on breach of duty and causation. GDOT argues that the trial court erred by denying its motion for summary judgment because there is insufficient evidence of breach of duty and causation. We disagree.

         GDOT argues that without an expert affidavit, there is no evidence that it breached a duty and no evidence of a causal connection between any breach and the plaintiffs' injuries. As we concluded in Division 2, however, the plaintiffs were not required to file an expert affidavit. Therefore, this argument is meritless.

         4. Motion to exclude three of the plaintiffs' experts. GDOT also argues that the trial court abused its discretion by denying its motion to exclude the testimony of three of the plaintiffs' experts: Sean Alexander, Ruston M. Hunt, and David Joe Lydick. We find no basis for reversal.

         First, GDOT argues that the testimony of those experts should have been excluded because they are not licensed professional engineers as required by OCGA § 24-7-702 (c) (1). But OCGA § 24-7-702 (c) (1) applies to expert testimony only "in professional malpractice actions" and only on "the acceptable standard of conduct of the professional" who allegedly committed malpractice. As we held in Division 2, this is not a professional negligence action. Thus, OCGA § 24-7-702 (c) does not apply, and the plaintiffs were not required to establish that their experts met the requirements of that Code section.[27]

         We also reject GDOT's argument that even if the plaintiffs' claims sound in ordinary negligence, the trial court abused its discretion in admitting the testimony of the three listed experts because "expert testimony is neither needed nor appropriate in claims for ordinary negligence." "In Georgia, properly qualified expert witnesses may render an opinion on any matter within their realm of expertise, so long as it is based upon conclusions drawn by the expert that the jury could not ordinarily determine for themselves."[28] And it is well-settled that expert testimony is admissible to establish causation, even in cases of ordinary or simple negligence.[29]

         Case ...


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