Georgia Department of Transportation v. Edward Kovalcik

• Court: Court of Appeals of Georgia
• Decided: July 10, 2014
• Docket: A14A0694
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, 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. http://www.gaappeals.us/rules/

July 10, 2014

In the Court of Appeals of Georgia A14A0694. DEPARTMENT OF TRANSPORTATION v. DO-036 KOVALCIK et al.

DOYLE , Presiding Judge.

The Georgia Department of Transportation (“DOT”) appeals from the trial

court’s denial of its motion seeking dismissal1 of tort claims brought by Edward and

Bernadette Kovalcik, as parents of Stephanie Kovalcik (deceased), and Edward

Kovalcik as administrator of Stephanie’s estate. The DOT argues that the trial court

erred by ruling that the Kovalciks’ claims were not barred by sovereign immunity.

For the reasons that follow, we affirm in part and reverse in part.2

1 The DOT’s motion was styled as a motion for summary judgment seeking dismissal of the suit. For purposes of this appeal, we refer to it as a motion to dismiss. 2 A related case, City of Atlanta v. Kovalcik, Case No. A14A0768, is pending in this Court’s April 2014 term. The cases arise from the same proceeding, and on motion by the appellees in each case, we have consolidated the records for both “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.”3

The evidence shows that the DOT, the City of Atlanta, and the Buckhead

Community Improvement District4 (“BCID”) began planning a road improvement

project to redesign a portion of Peachtree Road (“Project”), a State route within the

City limits. In February 2004, the DOT and the City entered into an agreement to

undertake certain improvements including the Project. The agreement stated that the

City would

accomplish all of the design activities for the project . . . in accordance with the [DOT’s] Plan Development Process, the applicable guidelines of the American Association of State Highway and Transportation

appeals. 3 (Punctuation omitted.) Ga. Dept. of Corrections v. James, 312 Ga. App. 190, 193 (718 SE2d 55) (2011). See generally Dept. of Transp. v. Dupree, 256 Ga. App. 668, 673 (1) (b) (570 SE2d 1) (2002) (“[u]nder OCGA § 50-21-24, waiver of sovereign immunity may be a mixed question of law and fact for the trial court’s determination”). 4 The BCID is a taxation entity of local government created by law pursuant to the Georgia Constitution of 1983, Art. IX, Sec. VII, par. I.

2 Officials . . . , the [DOT’s] Standard Specifications Construction of Roads and Bridges, the [DOT’s] Plan Presentation Guide, Project schedules, and applicable guidelines of the [DOT].

The contract further provided that the DOT

shall review and has approval authority for all aspects of the Project provided however this review and approval does not relieve the City of its responsibilities under the terms of this agreement. The [DOT] will work with the [Federal Highway Administration] to obtain all needed approvals with information furnished by the City.

Pursuant to an agreement between the BCID and the City, the BCID retained

URS Corporation to deliver construction plans that included road design, signage,

pavement markings, curbs, traffic signals, and landscaping. URS prepared the plans

and, through an iterative process of review and feedback, the DOT approved them.

In January 2006, the DOT awarded a construction contract to Infrasource

Paving and Concrete Services, and contracted with Parsons Brinkerhoff Shuh &

Jernigan (“PBSJ”) to provide construction, engineering, and inspection services for

the Project. Under the PBSJ contracts, the firm “shall be responsible for construction

inspection,” and “[i]t shall be the responsibility of [PBSJ] to provide services to

ensure that the project is constructed by [Infrasource] in reasonably close conformity

3 with the plans, specifications[,] and other contract provisions.” DOT employee

Darrell Williams monitored construction progress, attended meetings on behalf of the

DOT, and served as a liaison between the DOT and PBSJ.

Active construction ended in October 2007, and a final inspection was

performed in January 2008. On a rainy night in March 2008, Cameron Bridges

approached the intersection in Stephanie’s car with her as his passenger. The

complaint alleges that Bridges was heading south on Peachtree Road, and, intending

to turn left onto Piedmont Road, Bridges entered what he believed to be the left-hand

turn lane. Instead, the vehicle entered a short left-hand turn lane immediately

preceding the Piedmont intersection so that drivers could turn left into a parking lot

at the northeast corner of Peachtree and Piedmont. This shorter turn lane was bounded

by a concrete divider, which allegedly caused the vehicle to roll when Bridges

mistakenly drove into it.

Stephanie died of injuries she suffered in the crash, and the Kovalciks filed suit

against the DOT, the City, BCID, URS, PBSJ, and others. The Kovalciks’ complaint

includes negligence claims against the DOT for allegedly failing to ensure the

roadway was safe for use by the public, failing to provide adequate signage or

warning of the traffic barriers, and negligently designing the roadway. The DOT

4 answered, asserting sovereign immunity, and following discovery, the DOT moved

to dismiss on sovereign immunity grounds. The trial court, in a one sentence order,

denied the motion, giving rise to this appeal.

1. (a) Inspection function under OCGA § 50-21-24 (8). The DOT argues that

the trial court erred by permitting the Kovalciks’ negligent design claim to go forward

because of the inspection function exception to liability under the Georgia Tort Claim

Act (“GTCA”). We disagree.

Ordinarily, pursuant to the Georgia Constitution of 1983, the State is immune

from suit under the sovereign immunity doctrine: “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.” 5 “As a general rule, the sovereign immunity of the State

and its departments is waived by the [GTCA] for ‘the torts of [S]tate officers and

employees acting within the scope of their official duties or employment,’” subject

5 Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).

5 to certain exceptions.6 As a department of the State, the DOT is subject to the waiver

and the exceptions set forth in the GTCA.7

One exception is codified at OCGA § 50-21-24 (8), which provides as follows:

The [S]tate shall have no liability for losses resulting from: . . . [i]nspection powers or functions, including . . . 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.8

Here, the DOT argues that it did not draft the construction plans, and it is

immune from any liability stemming from its inspection of the plans prepared by

URS. The DOT does not dispute, however, that Peachtree Road, a State route, is a

roadway owned by the State; instead, it argues that the plans themselves were not

“property owned by the State,” so it was immune for any liability arising from its

inspection of the plans.

6 (Citation and punctuation omitted.) Ga. Dept. of Human Svcs. v. Spruill, 294 Ga. 100 (751 SE2d 315) (2013). 7 See Bruton v. Ga. Dept. of Human Resources, 235 Ga. App. 291, 293 (509 SE2d 363) (1998). 8 (Emphasis supplied.)

6 The Kovakciks point to evidence that the DOT participated in the inspection

of the construction site itself to determine compliance with the plans, DOT

guidelines, and completion of construction. Thus, they argue that the DOT’s

inspection was not merely of the plans, but also of the newly configured roadway

itself. In light of the emphasized language above (from OCGA § 50-21-24 (8)), we

agree that immunity is waived to the extent that the DOT’s role included inspection

of the State roadway and intersection itself to detect hazards or to determine

compliance with laws, regulations, codes, or ordinances. This case is the converse of

Magueur v. Dept. of Transp.,9 in which this Court addressed the DOT’s immunity

from a complaint alleging that the DOT violated a duty to notify a county that a

county roadway, as designed and constructed by the county and approved by the

DOT, contained safety hazards. The Court ruled that, even assuming the DOT had

such a duty, it was immune because the duty involved an inspection power or

function of property not owned by the State. In so holding, the Court explained, “we

see no principled distinction between an inspection of physical property to determine

whether it complies with accepted safety standards and an inspection of construction

9 248 Ga. App. 575 (547 SE2d 304) (2001).

7 plans to determine whether the property, once constructed, will comply with such

standards.”10

In the present case, we likewise find no meaningful distinction arising from the

DOT’s argument that it only inspected the construction plans, which it did not own.

There is evidence that the DOT’s role included both approving construction plans and

inspecting the physical property for compliance with DOT standards as built in

accordance with those plans. Accordingly, because it is undisputed that the roadway

inspected by the DOT is owned by the State, the inspection powers exception to State

liability in OCGA § 50-21-24 (8) does not, by its own terms, apply to the DOT’s

inspection of that roadway.11 This holding is limited to the immunity defense before

10 Id. at 577. See also Comanche Constr., Inc. v. Dept. of Transp., 272 Ga. App. 766, 768 (2) (613 SE2d 158) (2005) (“The phrase ‘inspection powers or functions’ includes both an inspection of physical property to determine whether it complies with accepted safety standards, as well as a review of construction plans for such compliance.”) (physical precedent only). 11 Cases to the contrary cited by the DOT all involve property not owned by the State. See, e.g., Comanche Constr., 272 Ga. App. at 768-770 (physical precedent only; county owned); Magueur, 248 Ga. App. at 575 (county owned). Compare Welch v. Ga. Dept. of Transp., 283 Ga. App. 903 (1) (642 SE2d 913) (2007) (to prevail on a tort claim based on the DOT’s failure to inspect for hazardous vegetation, plaintiffs “must show that the vegetation [on private property] extended into DOT’s right-of-way”).

8 us, and we do not reach any further questions as to the DOT’s actual role in this case

or as to the DOT’s duty under the circumstances.

(b) Licensing powers exception under OCGA § 50-21-24 (9). The DOT also

argues that, to the extent that the Kovalciks’ claim is based on negligent approval of

defective construction plans or failure to deny approval of defective construction

plans, such a claim is barred by the licensing powers exception to liability under the

GTCA. The Kovalciks point out that the DOT did not raise this argument in the trial

court and argue that we should therefore not consider it. But “[s]overeign immunity

of a [S]tate agency is not an affirmative defense, going to the merits of the case;

[instead it] raises the issue of the trial court’s subject matter jurisdiction to try the

case.”12

[L]ong-standing statutory and case law requir[es] courts to dismiss an action “whenever it appears, by suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject matter.” The court’s lack of subject-matter jurisdiction cannot be waived and may be raised at any

12 Dupree, 256 Ga. App. at 671 (1). See also Murray v. Ga. Dept. of Transp., 284 Ga. App. 263, 265 (2) (644 SE2d 290) (2007) (“any suit brought to which [a GTCA] exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction.”).

9 time either in the trial court, in a collateral attack on a judgment, or in an appeal.13

In certain limited circumstances, there may be some equitable arguments precluding

such a defense,14 but such is not the case here because the DOT asserted its immunity

in its complaint and in its dismissal motion. Therefore, we will address the DOT’s

argument here.

The DOT argues that to the extent the Kovalciks’ theory of liability stems from

its allegedly negligent approval of URS’s design plans, the DOT’s decisions during

the approval process of the plans qualify for the licensing powers exception under

OCGA § 50-21-24 (9), which provides as follows: “The [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.” The DOT relies on cases where the DOT authorized a county’s

13 (Punctuation omitted.) Abushmais v. Erby, 282 Ga. 619, 622 (3) (652 SE2d 549) (2007), citing OCGA § 9-11-12 (h) (3). 14 See id. at 622-623 (3).

10 request to install a traffic light,15 the DOT granted a permit to build a commercial

driveway,16 and the DOT approved construction of a decorative wall on top of an

existing retaining wall at an intersection on a [S]tate route.17 In each of these cases,

this Court held that the DOT was immune under the licensing powers exception of

the GTCA. We find these cases persuasive under the facts here. Therefore, to the

extent that any of the Kovalciks’ claims are predicated on the DOT’s improper

authorization of the plans or Project, the DOT is immune.18

2. The DOT also argues that the trial court erred by failing to dismiss the

negligent inspection claim because under the GTCA, the DOT is not liable for the

torts of independent contractors. The DOT points to its contract with PBSJ in which

PBSJ agreed to provide “construction inspection, field materials sampling and testing,

and assisting [DOT] engineers with contract administration. . . [and] services to

ensure that the project is constructed by the contractor in reasonably close conformity

15 See Murray, 284 Ga. App. at 265 (1) (physical precedent only). 16 See Dept. of Transp. v. Cox, 246 Ga. App. 221, 224 (540 SE2d 218) (2000). 17 See Dept. of Transp. v. Bishop, 216 Ga. App. 57 (453 SE2d 478) (1994). 18 The holdings herein are not inconsistent. “[S]imply because [DOT] may have waived immunity on [one] claim does not mean that it waived immunity on another claim.” Diamond v. DOT, 326 Ga. App. 189, 191 (1) (756 SE2d 277) (2014).

11 with the plans, specifications, and other contract provisions.” The DOT is correct that

under OCGA § 50-21-22 (7), which defines “State officer or employee” for purposes

of the GTCA, State actors do not “include an independent contractor doing business

with the [State.]” Thus, the GTCA’s waiver of immunity does not extend to the acts

of independent contractors, including PBSJ in this case.19

Nevertheless, the DOT’s contract with PBSJ did not take the DOT entirely out

of the equation with respect to the Project. The Kovalciks’ complaint alleges several

acts by the DOT that they contend were wrongful. For example, there is evidence that

DOT employees inspected the Project site itself and made recommendations for

changes based on perceived errors or flaws. Thus, the mere presence of contractors

performing services on behalf of the DOT does not relieve the DOT from potential

liability for its own actions. Accordingly, this argument presents no basis for reversal.

Judgment affirmed in part; reversed in part. Miller and Dillard, JJ., concur.

19 See Johnson v. Ga. Dept. of Human Resources, 278 Ga. 714, 717 (2) (606 SE2d 270) (2004) (“The Georgia General Assembly has spoken by removing from the pool of State employees covered by the [GTCA] independent contractors. . . .”)