Road Injury Prevention Litigation Journal
Road Injury Prevention & Litigation Journal
Copyright © 1998 by TranSafety, Inc.
April 1, 1998
TranSafety, Inc.
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Georgia Court Confirms Exception to Hearsay Rule

A motorist died after he lost control of his vehicle when it encountered water and mud accumulated on the highway near a construction site. In the resulting lawsuit, the State Court, Fulton County, Georgia, found for the motorist's wife and estate. The Court of Appeals of Georgia affirmed that the construction company was liable for the condition of the highway at the time of the incident and that the trial court had acted properly regarding exception to hearsay testimony and an inconsistent pretrial statement by the attending police officer.


The Georgia Department of Transportation (DOT) hired construction contractors for work on a highway in downtown Atlanta. In the days preceding this crash, the construction company brought truckloads of dirt to the site. During rain on the day of the crash, this dirt and existing dirt that had previously eroded from the side of the roadway turned into mud. The mud slid onto the road and clogged the drainage system, creating water on the roadway. The accumulated water caused the motorist's car to hydroplane and overturn. Although the motorist died, he was conscious long enough to provide information to a police officer who arrived at the scene ten minutes after the car overturned. The motorist's wife and his estate sued the contractors for failing to use proper erosion control procedures.


Testimony by an expert maintained erosion controls such as silt screens and hay bales on the side of the road could have prevented the incident. The jury in the State Court, Fulton County entered a verdict in favor of the plaintiffs for $1,930,433. The contractors appealed.


The Court of Appeals of Georgia first considered the contractors' argument that the plaintiffs failed to present evidence that the defendants had notice of the dangerous condition on the roadway. The court responded, however, that:

. . . defendants' lack-of-notice argument relies on premises liability cases, in which a defendant's liability is based on its duty to discover and correct (or warn about) a dangerous condition on property that it is responsible for, even though the defendant's negligence did not actually cause the dangerous condition in the first place. See, e.g., Andrews v. Macon, 191 Ga.App. 745, 746(2), 382 S.E.2d 739 (1989). This is not a premises liability case; defendants' liability here is based not on its negligence in failing to discover and correct a hazardous condition but on its negligence in actually creating the hazardous condition.

The court then considered the contractors' contention that the DOT was responsible for determining where to take erosion control measures. The contractors argued that they could not be held liable because they had complied with DOT plans for erosion control. The court's examination of the contract between the contractors and the DOT showed the DOT had specified that the contractors were responsible for erosion control. Testimony from a DOT witness confirmed that "defendants were expected to exercise their judgment regarding implementation of erosion control measures."

The contractors challenged the trial court's admission of the police officer's testimony about what the injured motorist said at the scene. They also challenged the officer's report of the incident, contending that this evidence was based upon inadmissible hearsay. The trial court had admitted the officer's testimony based on the "res gestae exception to the hearsay rule (see OCGA 15 24-3-3)." Citing Andrews v. State, 249 Ga. 223, 228, 290 S.E.2d 71 (1982), the appeals court found no error in the trial court's admission of this testimony. Due to the prompt arrival of the officer and the injuries that the motorist had obviously received in the rollover, the court agreed with the trial court's determination that "the decedent's statement was sufficiently contemporaneous with the accident and had sufficient indicia of reliability to be considered part of the res gestae [and] was not clearly erroneous. See Jarrett v. State, 265 Ga. 28(2), 453 S.E.2d 461 (1995); T.G. & Y. Stores Co. v. Waters, 175 Ga.App. 884, 886(2), 334 S.E.2d 910 (1985)."

On September 21, 1995, the Court of Appeals affirmed the lower court's judgment.


On December 5, 1995, the Court of Appeals addressed the contractors' motion for reconsideration. The contractors argued that a statement made by the police officer before the trial was inadmissible hearsay. Following the incident, the officer stated that he saw water pooled at the site of the rollover. At the trial, the officer stated that no water was pooled at the scene when he arrived. He explained that his confusion at the time caused him to make his earlier, contradictory statement.

Because the challenged evidence was "the prior inconsistent statement of a witness who testified and was subject to cross-examination," the appeals court could find no error in the trial court's admitting it (Gibbons v. State, 248 Ga. 858, 862, 286 S.E.2d 717 (1982)).

The appeals court denied the contractors' motion for reconsideration.

[For further reference, see Gilbert Corp. of Delaware, Inc. v. Yetman (Ga. App. 1995) in West Publishing Vol. 464 South Eastern Reporter, 2nd Series, 822]

Copyright © 1998 by TranSafety, Inc.

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