SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 20, 2013
In the Court of Appeals of Georgia A12A2409. HAGAN et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION. A12A2410. CITY OF ILA et al. v. HAGAN et al. A12A2411. CITY OF ILA et al. v. HAGAN et al. A12A2412. HAGAN et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION.
MCMILLIAN, Judge.
Bobby L. Hagan, individually and as next friend of his wife Charlotte Louise
Hagan, an incapacitated adult, brought suit against the Georgia Department of
Transportation (GDOT) and the City of Ila, Georgia (City) seeking to recover
damages for injuries Mrs. Hagan allegedly suffered when she fell on a sidewalk (the
sidewalk) that was located in downtown Ila adjacent to State Route 106 on one side and a row of buildings owned by Team America Vans, Inc. on the other.1 GDOT filed
a combined motion to dismiss and motion for summary judgment asserting, among
other things, that Hagan’s claims were barred by sovereign immunity. The City also
moved for summary judgment on immunity and other grounds, including that it had
no liability for Mrs. Hagan’s injuries because it did not own or maintain the part of
the sidewalk where she fell. The trial court agreed that GDOT was immune from suit
and granted its motion to dismiss, but denied the City’s motion for summary
judgment. Both Hagan and the City filed applications for interlocutory appeal, which
this Court granted, and the parties filed notices of appeal and cross-appeal, which we
have consolidated for review.2
The events giving rise to this lawsuit occurred in 2008 when Mrs. Hagan fell
while walking down the sidewalk to a hair salon. The salon was located in a row of
buildings owned by Team America Vans, which ran adjacent to the sidewalk. The
sidewalk had been in existence for decades, was uneven in slope, and had been
1 Team America Vans, its CEO Daniel Jack (John) Davis, Jr., the owner of the hair salon and others were sued along with GDOT and the City, but are not parties to this appeal. 2 The cross-appeals appear to be redundant of the issues raised in the main appeals.
2 constructed with a one-step “riser,”3 which was near the entrance of the hair salon.
Mrs. Hagan, who had never walked along that stretch of the sidewalk before,
apparently lost her balance and fell near the riser, allegedly sustaining serious and
permanent injuries.
Although the buildings adjacent to the sidewalk were built sometime in the
1890’s, the sidewalk appears to have been built later, although exactly who built it
or when it was built is unknown. However, the record shows that in the 1930’s,
GDOT’s predecessor, the State Highway Board of Georgia, acquired a 60-foot right
of way across the property where the sidewalk was located, although the deeds were
later corrected to 50 feet to reflect the landowners’ intent that the right of way not
extend into the actual buildings. Further, the buildings and property adjacent to the
right of way where Mrs. Hagan fell were later deeded to Team America Vans, and a
title examination did not reveal any other conveyances since those deeds were
executed.
In 2005, Daniel Jack (John) Davis, Jr., the CEO of Team America Vans, hired
a contractor to repair and improve the appearance of the sidewalk, and as part of that
project, brick pavers were placed in front of the shop entrances and bricks were added
3 This was also referred to as a “step off.”
3 along the curb and the riser, which remained elevated in relation to the surrounding
sidewalk. Hagan alleged in his complaint “that an optical illusion exists with respect
to the design, configuration, construction, maintenance and location of the step[,]”
that defendants “failed to adequately warn the general public” of this defective and
“hazardous condition,” and that “[d]efendants were negligent in failing to design,
configure, build, permit, keep, maintain and/or repair the sidewalk in safe condition.”
Against this factual and procedural backdrop, we now turn to the parties’
arguments on appeal, reciting additional facts as necessary to consider their
contentions.
Case Nos. A12A2409 and A12A2412
1. First we consider Hagan’s challenge to the dismissal of his claims against
GDOT based on the bar of sovereign immunity (Case Numbers A12A2409 and
A12A2412, respectively).
“Under the Georgia Constitution, ‘(t)he General Assembly may waive the
state’s sovereign immunity from suit by enacting a State Tort Claims Act . . . (or by
enacting a statute) which specifically provides that sovereign immunity is thereby
waived and the extent of such waiver.’ Ga. Const. of 1983, Art. I, Sec. II, Par. IX (a)
and (e).” Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 263 (1) (674 SE2d 914) (2009).
4 So authorized, the legislature enacted the Georgia Tort Claims Act (GTCA), OCGA
§ 50-21-20 et seq., to ameliorate against the “inherently unfair and inequitable results
which occur in the strict application of the traditional doctrine of sovereign
immunity” while recognizing the difference between the roles and duties of state
government and private entrepreneurs and the concomitant need to limit the exposure
of the state treasury to tort liability. OCGA § 50-21-21 (a). Thus, although the GTCA
waives the state’s sovereign immunity, OCGA § 50-21-23, that waiver is limited by
certain specified exceptions and limitations, which are also set forth in the GTCA. Or,
stated succinctly, “[t]he state is only liable in tort actions within the limitations of the
[GTCA].” Ga. Dept. of Transp. v. Bishop, 216 Ga. App. 57, 58 (1) (453 SE2d 478)
(1994). Further,
any suit brought to which an exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction. The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver, and the trial court’s pre-trial ruling on factual issues necessary to decide the OCGA § 9-11-12 (b) (1) motion is reviewed on appeal under the any evidence rule.
(Citations omitted.) Murray v. Ga. Dept. of Transp., 284 Ga. App. 263, 265 (2) (644
SE2d 290) (2007).
5 The GDOT based its motion to dismiss on three exceptions under the
GTCA–the discretionary function exception, the licensing exception, and the design
exception, set forth respectively in OCGA § 50-21-24 (2), (9) and (10).
Under the discretionary function exception, “[t]he state shall have no liability
for losses resulting from . . . [t]he exercise or performance of or the failure to exercise
or perform a discretionary function or duty on the part of a state officer or employee,
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 20, 2013
In the Court of Appeals of Georgia A12A2409. HAGAN et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION. A12A2410. CITY OF ILA et al. v. HAGAN et al. A12A2411. CITY OF ILA et al. v. HAGAN et al. A12A2412. HAGAN et al. v. GEORGIA DEPARTMENT OF TRANSPORTATION.
MCMILLIAN, Judge.
Bobby L. Hagan, individually and as next friend of his wife Charlotte Louise
Hagan, an incapacitated adult, brought suit against the Georgia Department of
Transportation (GDOT) and the City of Ila, Georgia (City) seeking to recover
damages for injuries Mrs. Hagan allegedly suffered when she fell on a sidewalk (the
sidewalk) that was located in downtown Ila adjacent to State Route 106 on one side and a row of buildings owned by Team America Vans, Inc. on the other.1 GDOT filed
a combined motion to dismiss and motion for summary judgment asserting, among
other things, that Hagan’s claims were barred by sovereign immunity. The City also
moved for summary judgment on immunity and other grounds, including that it had
no liability for Mrs. Hagan’s injuries because it did not own or maintain the part of
the sidewalk where she fell. The trial court agreed that GDOT was immune from suit
and granted its motion to dismiss, but denied the City’s motion for summary
judgment. Both Hagan and the City filed applications for interlocutory appeal, which
this Court granted, and the parties filed notices of appeal and cross-appeal, which we
have consolidated for review.2
The events giving rise to this lawsuit occurred in 2008 when Mrs. Hagan fell
while walking down the sidewalk to a hair salon. The salon was located in a row of
buildings owned by Team America Vans, which ran adjacent to the sidewalk. The
sidewalk had been in existence for decades, was uneven in slope, and had been
1 Team America Vans, its CEO Daniel Jack (John) Davis, Jr., the owner of the hair salon and others were sued along with GDOT and the City, but are not parties to this appeal. 2 The cross-appeals appear to be redundant of the issues raised in the main appeals.
2 constructed with a one-step “riser,”3 which was near the entrance of the hair salon.
Mrs. Hagan, who had never walked along that stretch of the sidewalk before,
apparently lost her balance and fell near the riser, allegedly sustaining serious and
permanent injuries.
Although the buildings adjacent to the sidewalk were built sometime in the
1890’s, the sidewalk appears to have been built later, although exactly who built it
or when it was built is unknown. However, the record shows that in the 1930’s,
GDOT’s predecessor, the State Highway Board of Georgia, acquired a 60-foot right
of way across the property where the sidewalk was located, although the deeds were
later corrected to 50 feet to reflect the landowners’ intent that the right of way not
extend into the actual buildings. Further, the buildings and property adjacent to the
right of way where Mrs. Hagan fell were later deeded to Team America Vans, and a
title examination did not reveal any other conveyances since those deeds were
executed.
In 2005, Daniel Jack (John) Davis, Jr., the CEO of Team America Vans, hired
a contractor to repair and improve the appearance of the sidewalk, and as part of that
project, brick pavers were placed in front of the shop entrances and bricks were added
3 This was also referred to as a “step off.”
3 along the curb and the riser, which remained elevated in relation to the surrounding
sidewalk. Hagan alleged in his complaint “that an optical illusion exists with respect
to the design, configuration, construction, maintenance and location of the step[,]”
that defendants “failed to adequately warn the general public” of this defective and
“hazardous condition,” and that “[d]efendants were negligent in failing to design,
configure, build, permit, keep, maintain and/or repair the sidewalk in safe condition.”
Against this factual and procedural backdrop, we now turn to the parties’
arguments on appeal, reciting additional facts as necessary to consider their
contentions.
Case Nos. A12A2409 and A12A2412
1. First we consider Hagan’s challenge to the dismissal of his claims against
GDOT based on the bar of sovereign immunity (Case Numbers A12A2409 and
A12A2412, respectively).
“Under the Georgia Constitution, ‘(t)he General Assembly may waive the
state’s sovereign immunity from suit by enacting a State Tort Claims Act . . . (or by
enacting a statute) which specifically provides that sovereign immunity is thereby
waived and the extent of such waiver.’ Ga. Const. of 1983, Art. I, Sec. II, Par. IX (a)
and (e).” Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 263 (1) (674 SE2d 914) (2009).
4 So authorized, the legislature enacted the Georgia Tort Claims Act (GTCA), OCGA
§ 50-21-20 et seq., to ameliorate against the “inherently unfair and inequitable results
which occur in the strict application of the traditional doctrine of sovereign
immunity” while recognizing the difference between the roles and duties of state
government and private entrepreneurs and the concomitant need to limit the exposure
of the state treasury to tort liability. OCGA § 50-21-21 (a). Thus, although the GTCA
waives the state’s sovereign immunity, OCGA § 50-21-23, that waiver is limited by
certain specified exceptions and limitations, which are also set forth in the GTCA. Or,
stated succinctly, “[t]he state is only liable in tort actions within the limitations of the
[GTCA].” Ga. Dept. of Transp. v. Bishop, 216 Ga. App. 57, 58 (1) (453 SE2d 478)
(1994). Further,
any suit brought to which an exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction. The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver, and the trial court’s pre-trial ruling on factual issues necessary to decide the OCGA § 9-11-12 (b) (1) motion is reviewed on appeal under the any evidence rule.
(Citations omitted.) Murray v. Ga. Dept. of Transp., 284 Ga. App. 263, 265 (2) (644
SE2d 290) (2007).
5 The GDOT based its motion to dismiss on three exceptions under the
GTCA–the discretionary function exception, the licensing exception, and the design
exception, set forth respectively in OCGA § 50-21-24 (2), (9) and (10).
Under the discretionary function exception, “[t]he state shall have no liability
for losses resulting from . . . [t]he exercise or performance of or the failure to exercise
or perform a discretionary function or duty on the part of a state officer or employee,
whether or not the discretion involved is abused[.]” OCGA § 50-21-24 (2). A
discretionary function or duty is defined in OCGA § 50-21-22 (2) and “means a
function or duty requiring a state officer or employee to exercise his or her policy
judgment in choosing among alternate courses of action based upon a consideration
of social, political, or economic factors.”
Our appellate courts have considered the scope of this exception on several
occasions, and our Supreme Court has emphasized that it is “limited to basic
governmental policy decisions” and should not be extended in such a way that any
decision affected by social, political, or economic factors would be encompassed
within the exception. Dept. of Transp. v. Brown, 267 Ga. 6, 7 (1) (471 SE2d 849
6 (1996).4 Thus, for the exception to apply, the discretionary function or duty must be
one that requires a state officer or employee to exercise his or her policy judgment in
choosing among alternate courses of actions based upon the applicable factors. Ga.
Dept. of Transp. v. Miller, 300 Ga. App. 857, 859 (1) (686 SE2d 455) (2009). “The
key to this issue is the difference between design and operational decisions and policy
decisions.” Dept. of Transp. v. Brown, 267 Ga. at 7 (1). For example, in Brown, the
court held that while the initial decision to build a road was a policy decision, the
decision to open the road before traffic lights were installed was an operational
decision, and whether to use stop signs was a design decision. Similarly, while in Ga.
Dept. of Transp. v. Smith, 314 Ga. App. 412, 414 (1) (724 SE2d 430) (2012), we
rejected the GDOT’s evidence and argument that we should defer to its identification
of a “hierarchy or priorities” for the allocation of limited resources, we did so because
the allegedly negligent failure to remove a hazardous tree in that case was not the
policy but rather an “operational” decision by the responsible foreman to not carry out
the GDOT’s tree removal policy; and the alleged negligence was therefore not a
4 Brown is considered the seminal case on this issue, and gave the following oft quoted example: “Whether to buy copier paper from a particular vendor, and in which colors, are decisions that might be affected by all three factors, but they are not policy decisions.” Dept. of Transp. v. Brown, 267 Ga. at 7 (1).
7 “discretionary function.” Id. at 414 (“the GDOT foreman who was responsible for
weekly inspections of the area that included the subject tree testified by deposition
that during his inspections, beginning in 2004, he did not inspect trees.”). See also
Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857, 859 (1) (when and where to send
out DOT personnel to inspect roads for hazards after a rain was operational); see also
Edwards v. Dept. of Children & Youth Svs., 271 Ga. 890, 892 (525 SE2d 83) (2000)
(decision on type of emergency medical care to provide incarcerated juveniles does
not fall within the exception);5 Brantley v. Dept. of Human Resources, 271 Ga. 679,
683 (523 SE2d 571) (1999) (foster parent’s decision to leave a two-year-old in a
swimming pool not a basic policy decision).
As the citations above illustrate,6 there are a number of Georgia appellate court
cases addressing the applicability of the discretionary function exception in a variety
of contexts. But, as the trial court noted, there appears to be no Georgia authority
directly addressing this exception in the specific context of sidewalk repair or
maintenance. However, the Oregon Court of Appeals has considered this issue under
5 The court noted that the department’s failure to promulgate policies and procedures to diagnose and refer sick inmates was not at issue. 6 We do not mean to suggest that we have provided an exhaustive list of those cases.
8 similar facts, Ramirez v. Hawaii T & S Enters., Inc., 39 P3d 931 (Ore. App.) (2002);
the trial court found this opinion persuasive and so do we.
In Ramirez, the plaintiff sued the City of Portland after she fell stepping off a
broken curb in downtown Portland. The City argued that it had made a discretionary
decision to divert limited funds from sidewalk inspection to “the more pressing needs
occasioned by . . . floods,” id. at 933, and claimed immunity under ORS 30.265 (3)
(c), “a provision of the Oregon Tort Claims Act that immunizes public bodies and
their employees from liability for ‘any claim based upon the performance of or the
failure to exercise or perform a discretionary function or duty, whether or not the
discretion is abused.’” Id. at 932. The Oregon Court cited several examples of
immune and non-immune decisions or actions, and concluded that “[t]he operative
distinction, then, is between choosing a course of action or inaction, on the one hand,
and putting that choice into effect, on the other.” Id. at 933. The Oregon Court
ultimately agreed with the City that it was afforded immunity by the exception,
finding that the City’s “decision involved the exercise of judgment . . . [and]
prioritized public services according to perceived needs.” Id. at 934.
In this case, GDOT also contended that it was entitled to immunity because it
had made a discretionary decision not to inspect, maintain or repair sidewalks. To
9 support its contention, GDOT submitted the affidavit of GDOT State Maintenance
Engineer Eric Pitts, in which he averred that due to limited human resources and
budgetary constraints,7 GDOT prioritizes its duty to oversee and perform maintenance
on the state highway systems by directing “funds and personnel . . . first toward
matters that impact the operation, safety and efficiency of the roadways themselves,
versus the portions of the state right-of-way that are adjacent to the roadways.” Thus,
“[a]s a result of its determination of maintenance priorities and its allocation of
limited resources to same, and while GDOT can elect to perform maintenance
functions on any property that is part of a state highway right-of-way, GDOT does not
routinely perform maintenance or repair work on sidewalks[,]” especially when the
sidewalks are located on a state right-of-way within the corporate limits of
municipalities. And the record shows that this policy of not performing maintenance
or repairs on sidewalks within GDOT’s right-of-way was orally communicated to
workers in the field and their supervisors.
Although we are mindful of our Supreme Court’s admonition to avoid “the
exception swallow[ing] the waiver” Brown, 267 Ga. at (7) (1), it seems to us that
7 Pitts averred that the GDOT’s budget provided by the General Assembly includes a line item to maintain roads and bridges.
10 GDOT’s decision to allocate its maintenance budget by prioritizing services based
upon considerations such as safety and population is a basic governmental policy
decision, analogous to the situation in Ramirez. It follows that GDOT’s specific
decision to forego routine inspections, repairs, or maintenance of sidewalks within
a state right-of-way as a result of prioritizing maintenance activities based on
budgetary constraints would fall under the discretionary function exception. Thus,
because this was the type of governmental decision that the legislature intended to
protect from tort liability, the trial court did not err by dismissing Hagan’s claims
against GDOT based on the bar of sovereign immunity. And because we conclude
that the trial court properly dismissed Hagan’s claims against GDOT based on the
discretionary function exception, it is unnecessary for us to consider whether the
other two exceptions are also applicable here; likewise, it is unnecessary for us to
consider whether GDOT was entitled to summary judgment on Hagan’s claims.
Accordingly, in Case Number A12A2409, we affirm the judgment dismissing
Hagan’s claims against GDOT, and in Case Number A12A2412, we dismiss Hagan’s
cross-appeal as moot.
11 Case Numbers A12A2410 and A12A2411
2. The City challenges the trial court’s denial of its motion for summary
judgment in this appeal and cross-appeal, Case Numbers A12A2411 and A12A2410,
respectively. As more fully set forth below, we agree with the City that summary
judgment was proper here and reverse.
“To prevail on [his] negligence claim, [Hagan] must show that the [C]ity had
(a) duty, or obligation, recognized by law, requiring (it) to conform to a certain
standard of conduct, for the protection of others against unreasonable risks.
(Punctuation and citation omitted.) Williams v. City of Social Circle, 225 Ga. App.
746, 747 (484 SE2d 687) (1997). OCGA § 32-4-93 governs the liability of
municipalities for defects in public roads, and the obligations expressed in that code
section also extend to public sidewalks. Williams, 225 Ga. App. at 747, and cites.
Pursuant to subsection (a) of that section
[a] municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.
And subsection (b) is also pertinent here and provides that
12 [a] municipality is relieved of any and all liability resulting from or occasioned by defective construction of those portions of the state highway system or county road system lying within its corporate limits or resulting from the failure of the department or the county to maintain such roads as required by law unless the municipality constructed or agreed to perform the necessary maintenance of such road.
Thus, pursuant to subsection (a), “a city is generally obligated to maintain the
roads of its municipal street system. [And, pursuant to subsection (b), a] city is
similarly obligated to maintain those portions of the state highway system lying
within its corporate limits if the city has ‘constructed or agreed to perform the
necessary maintenance of such roads.’” Williams, 225 Ga. App. at 747.
The Williams case, in which we affirmed the grant of summary judgment to the
city, id. at 748, also involved an injury on a sidewalk located within the city limits but
on a state right-of-way within the city limits, and the only admissible evidence
showed that the city did not own and had never maintained the sidewalk. Here, the
portion of the sidewalk where Mrs. Hagan fell was at least partially within the state
right-of-way, and although it is questionable whether the right-of-way encompassed
the entire sidewalk, there is no evidence that the City owned any part of the sidewalk
13 and no evidence that the City performed any maintenance, repairs or renovations to
the sidewalk.
Hagan asserts that the City entered into an agreement in 1993 with GDOT to
maintain the sidewalk where Mrs. Hagan fell, as part of a state-funded sidewalk
project. But the evidence unequivocally showed the portion of the sidewalk where
Mrs. Hagan fell was not included in that project,8 and no evidence exists that the City
assumed any duty to maintain that portion of the sidewalk as part of the 1993
agreement. Because our review of the record supports the City’s claim that Hagan
presented no evidence to support his contention that the City had or breached a duty
to maintain the sidewalk, the City was entitled to summary judgment on Hagan’s
claims against it. Williams, 225 Ga. App. at 749.9
Judgment affirmed in Case Number A12A2409. Judgment reversed in Case
Number A12A2411. Appeals dismissed as moot in Case Numbers A12A2410 and
A12A2412. Barnes, P. J., and McFadden, J., concur.
8 This evidence includes the opinion of Hagan’s own expert and maps showing the sidewalks included in the project. 9 Once again, we dismiss the cross-appeal, Case Number A12A2410, as moot.