A motorist and two passengers died in a collision at an intersection under construction. The Georgia Department of Transportation had placed temporary stop signs for traffic in both directions on the highway on which they were traveling; no signs or signals confronted traffic on the intersecting highway. The uncontrolled highway had previously ended at a T-intersection with stop signs for all three directions of travel; that highway had recently been extended beyond the intersection. When a representative of one passenger sued, the Superior Court, Stephens County awarded a judgment in favor of the plaintiff. The State of Georgia appealed, maintaining that the Georgia Tort Claims Act protected the State's immunity in such cases. The Court of Appeals of Georgia found no exceptions to design standards liability and affirmed the trial court's decision.

THE COLLISION

Previous to the crash, Georgia Highway 365 ended at State Road 17, forming a T- intersection with stop signs in all three directions. In 1991 Highway 365 was undergoing an extension beyond State Road 17. The new Highway 365/State Road 17 intersection plans specified a traffic signal controlling traffic from all four directions. The Georgia Department of Transportation (DOT) scheduled the project for completion on August 31. Because the DOT rejected a bid for the installation of the traffic lights, the new bid rescheduled the project for completion at the end of November. To open the intersection as first scheduled, DOT used temporary stop signs to control the traffic in both directions on State Road 17 and allowed Highway 365 to cross State Road 17 with no traffic control signs or signals. The new intersection opened on September 4, 1991.

On September 28, 1991, Elsie Wheeler Colbert was driving a vehicle on State Road 17 in which her daughters, Shirley Hunter and Anika Colbert, were passengers. When their car entered the intersection, a dump truck traveling on Highway 365 struck it. All three women died in the collision.

As administratrix of the estate of Anika Colbert, Mildred C. Brown brought a wrongful death action against the DOT and others.

TRIAL COURT DECISION

Brown's suit against the DOT was tried before a jury in the Superior Court, Stephens County, Georgia. The DOT moved for summary judgment--which the court denied. The DOT then moved for a directed verdict on the issue of design standards exceptions allowed by the Georgia Tort Claims Act. The court also denied this motion. The jury found for Brown and awarded $1,505,000 against the DOT. Since the Georgia Tort Claims Act limits recovery to $1,000,000, the trial court reduced the award to that amount. The State appealed.

APPEALS COURT DECISION

In its appeal, the DOT argued that the trial court had erred in denying motions for summary judgment and for a directed verdict. The DOT had based these motions on the design standards exception to the Georgia Tort Claims Act (OCGA § 15 50-21-24(10)). The Georgia Tort Claims Act, enacted in response to a 1991 amendment to the State constitution, waives the State's "sovereign immunity for torts of State officers and employees while acting within the scope of their official duties unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 15 50-21-24. . . . See City of Thomaston v. Bridges, 264 Ga. 4, 439 S.E.2d 906 (1994); Collier v. Whitworth, 205 Ga.App. 758, 759, 423 S.E.2d 440 (1992)."

The highway design standards exception in OCGA § 15 50-21-24 specifies:

Although the trial court denied the DOT's motion for summary judgment without explanation, the Court of Appeals of Georgia explained that the appeal process is too late to review a denial of summary judgment "for that judgment becomes moot when the court reviews the evidence upon the trial of the case."

The appeals court did, however, review the trial court's denial of the motion for directed verdict. The court noted that the DOT did not provide any evidence that the road design failed to comply with then-current design and engineering standards. The DOT offered support from the Manual of Uniform Traffic Control Devices (MUTCD) which Georgia statute OCGA § 15 32-6-50 accepts as one authority. The MUTCD includes no standards for traffic transitions from an all-way stop configuration to a two-way stop. The DOT argued that because there was no standard for an intersection such as the site of the collision, there could be no evidence of any deviation from a standard.

Trial testimony from the plaintiff's engineering expert acknowledged that the MUTCD provided no standards for such a traffic transition. The expert offered his opinion, however, on ways that the DOT's temporary measures deviated from "generally accepted engineering and design standards." These deviations included: failure to conduct studies of the workability of using stop signs at the intersection rather than the specified traffic lights, failure to set up a transition period from an all-way stop to a two-way stop, and failure to monitor the intersection after the change in design.

The court found sufficient evidence to create a question about the DOT's compliance with generally accepted engineering and design standards. When ruling on a motion for directed verdict, the court must construe the evidence "most favorably to the party opposing the motion" (in this instance Brown). Therefore, the appeals court held that the trial court acted correctly in denying the motion for directed verdict and in submitting this issue to the jury.

The DOT also claimed error by the trial court in its denial of the DOT's motions for summary judgment and directed verdict based on its immunity according to the discretionary function exception to the Georgia Tort Claims Act (OCGA § 15 50-21-24(2). This exception reads:

The Georgia Tort Claims Act in OCGA § 15 50-21-22(2) defines discretionary function or duty as "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." The court examined the intent of the Georgia Tort Claims Act with regard to highway construction and held that such evaluations should be made "in terms of the specific provision dealing with highway design rather than the more general statutory exception to sovereign immunity for discretionary acts." Under this consideration, the court found that no exception to the limited waiver of sovereign immunity applied.

In reviewing other States' discretionary function exceptions, the court held that such an exception is not applicable to decisions affecting highways. (Japan Air Lines Co., Ltd. v. State, 628 P.2d 934, 938(4) (Alaska 1981); Stewart v. State, 92 Wash.2d 285, 597 P.2d 101, 106-107(7), (8) (1979); Andrus v. State, 541 P.2d 1117, 1120(1-3) (Utah 1975)). The court also cited a U.S. District Court ruling regarding the discretionary functions exception to the Federal Tort Claims Act that states:

Finding no error in the trial court's decision to deny the DOT's motion for directed verdict, the appeals court concluded:

Regarding its motion for directed verdict, the DOT further argued that although it had a duty to the public at large, it had no special relationship with Anika Colbert. The appeals court responded that the public duty doctrine, adopted by the Supreme Court, does not require an injured person to show a special relationship with a "governmental tortfeasor where the legislature, by statute, creates exposure of the State to potential liability for losses, as it did in OCGA § 15 50-21-24(10)" (City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861 (1993)). The court maintained that the purpose of the Georgia Tort Claims Act is to allow citizens a remedy for injuries when "in the past such a remedy was unavailable as a result of 'the strict application of the traditional doctrine of sovereign immunity.' OCGA § 15 50-21-21(a)."

Since the collision at State Road 17 and Highway 365 occurred two years before the Supreme Court's decision in City of Rome, supra, the appeals court held that even a broad interpretation of the effect of construction changes on vested rights would not define an error in the trial court's denial of the DOT's motion for directed verdict based on the public duty doctrine.

The DOT also alleged the trial court erred when it denied the DOT's motion in limine seeking to exclude evidence of other collisions at this intersection. The DOT argued that the only exception to the general rule that evidence of similar collisions was not admissible was to show that the parties involved had knowledge of a certain condition (Pembrook Mgmt. v. Cossaboon, 157 Ga.App. 675, 677(3), 278 S.E.2d 100 (1981)). The court pointed out that evidence of other collisions or incidents at the same intersection and under similar conditions was also admissible to prove a dangerous condition, such as in Wright v. Dilbeck (122 Ga.App. 214, 217(4), 176 S.E.2d 715 (1970)).

Moreover, the DOT challenged Brown's evidence that the intersection as it existed, not as it was planned, was dangerous and that the DOT "knew or should have known" about the collisions that had occurred there between September 4 and September 28, 1991. The DOT attempted to differentiate the collision in question from others at the same intersection based on speed or direction. The court rejected this argument, since it found no requirement that the other collisions offered as evidence had to be identical (Doster v. Central of Ga. R. Co., 177 Ga.App. 393, 398(5), 339 S.E.2d 619 (1985)).

Citing Reed v. Heffernan (171 Ga.App. 83, 85(1), 318 S.E.2d 700 (1984)), the appeals court held:

Based on the above, the appeals court found no error in the trial court's allowing the jury to hear evidence of other collisions at the intersection. Further, the court stated that "[t]he trial court's instruction to the jury regarding the limited purpose for which evidence of other collisions was allowed was a correct statement of the law, and was properly given. See Mutual Benefit Health, etc. v. Hickman, 100 Ga.App. 348, 365(4), 111 S.E.2d 380 (1959)."

The final issue of the DOT's argument was the trial court's charge on concurrent negligence. The DOT contended that government entities could not be joint tortfeasors because such status would "constitute an impermissible gratuity" contravening Art. III, Sec. VI, par. VI(a) of the Georgia Constitution. This section prevents the General Assembly from forgiving an obligation to the public. The appellate court cited the Supreme Court's precedent establishing the DOT as a joint tortfeasor in Dept. of Transp. v. Land, 257 Ga. 657, 362 S.E.2d 372 (1987). Although the Georgia Tort Claims Act was enacted after this case, the court maintained that it contains no contradiction. Quoting the tort claims act, which states that "the state . . . shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances. OCGA § 15 50-21-23(a)," the appeals court agreed that since a jury could consider an individual a joint tortfeasor, it could also assign such liability to the State.

The appeals court affirmed the trial court's judgment on July 19, 1995 and denied reconsideration on July 27, 1995.