DEPARTMENT OF TRANSPORTATION v. JARVIE Et Al. , 329 Ga. App. 681 ( 2014 )

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/
November 17, 2014
In the Court of Appeals of Georgia
A14A0887. DEPARTMENT OF TRANSPORTATION v. JARVIE DO-045
et al.
DOYLE, Presiding Judge.
The Georgia Department of Transportation (“DOT”) appeals from the denial
of its motion to dismiss a lawsuit filed by the surviving children of William Jarvie,
who died as a passenger in a collision with a construction vehicle on Interstate 95.
The DOT contends that the trial court erred by ruling that it was not entitled to
sovereign immunity, arguing that the licensing powers exception to the waiver of
immunity under the Georgia Tort Claims Act (“GTCA”) prohibits liability for the
DOT’s approval of a construction methodology proposed and designed by an
independent contractor. For the reasons that follow, we reverse.
“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.”1
The record shows that in 2007, the DOT awarded a contract to Plant
Improvement Company, Inc., d/b/a Seaboard Construction Company (“Seaboard”)
to act as the general contractor for a road-widening project on Interstate 95. The
project involved installing large quantities of aggregate rock to construct the road
bed, so Seaboard submitted a written request for permission from the DOT to
stockpile aggregate material in the highway median. The DOT responded in a letter
giving Seaboard permission to construct a stockpile area subject to certain conditions,
including that Seaboard submit a traffic control plan for DOT approval. Although the
traffic control plan has not been located during this litigation, it is undisputed that the
DOT ultimately approved Seaboard’s request to stockpile the material in the median.
The plaintiffs allege that in April 2009, Jarvie was a passenger in a vehicle
traveling in the left lane on Interstate 95 when the vehicle collided with a dump truck
1
(Punctuation omitted.) Ga. Dept. of Corrections v. James, 312 Ga. App. 190,
193 (718 SE2d 55) (2011).
2
entering the highway from the median at the material storage area. The dump truck
was driven by Jeffrey Wallace, an operator working for Flo Jo, a subcontractor of
Seaboard. The plaintiffs sued Wallace, Flo Jo, Seaboard, and the DOT for each
party’s role in causing Jarvie’s death. With respect to the DOT, the plaintiffs allege
that the DOT negligently designed, constructed, and maintained the construction
vehicle access and egress to the interstate median. In particular, the complaint alleges
that the stockpile site lacked certain safety features such as acceleration or
deceleration lanes for construction vehicles, dust control measures, proper warning
signs, adequate field monitoring, and appropriate operating hours.
After filing an answer and conducting discovery, the DOT moved to dismiss
the complaint on sovereign immunity grounds. Following a hearing, the trial court
denied the motion in a one-sentence order, giving rise to this appeal.2
“Under Georgia law . . . sovereign immunity has constitutional status, and that
immunity may be waived only by an act of the General Assembly or by the
2
The trial court’s denial of the DOT’s motion is directly appealable pursuant
to the collateral order doctrine. See Bd. of Regents &c. Ga. v. Canas, 295 Ga. App.
505, 507 (1) (672 SE2d 471) (2009).
3
Constitution itself.”3 “[A]ny waiver of sovereign immunity must be established by the
party seeking to benefit from that waiver,”4 and the plaintiffs here rely on the GTCA.5
In the GTCA, the General Assembly has waived the State’s immunity “for the
torts of [S]tate officers and employees while acting within the scope of their official
duties or employment . . . [but] only to the extent and in the manner provided in [the
GTCA].”6 Pertinent to this case, the GTCA contains the following exceptions to the
waiver of immunity:
The [S]tate shall have no liability for losses resulting from: . . .
(8) Inspection 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 state to determine whether
the property complies with or violates any law, regulation, code, or
ordinance or contains a hazard to health or safety;
3
Ga. Dept. of Corrections v. Couch, 295 Ga. 469, 472 (2) (759 SE2d 804)
(2014).
4
(Punctuation omitted.) Ratliff v. McDonald, 326 Ga. App. 306, 309 (1) (756
SE2d 569) (2014).
5
OCGA §§ 50-21-20 to 50-21-37.
6
OCGA § 50-21-23 (a) & (b).
4
(9) Licensing 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; [or]
(10) The 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. . . .7
Here, the plaintiffs’ theory of the DOT’s liability is, in essence, that the DOT
negligently allowed Seaboard to design, install, and use a dangerous stockpile area
in the interstate median. As an initial matter, we note that the GTCA’s waiver of
immunity does not include torts committed by independent contractors,8 so the DOT
is not subject to suit for the conduct of its contractors, such as negligently designing
the stockpile area’s traffic plan or negligently driving the truck which caused Jarvie’s
death. The DOT’s role here amounted to approving Seaboard’s request to stockpile
7
(Emphasis supplied.) OCGA § 50-21-24.
8
See OCGA § 50-21-22 (7) (“‘[S]tate officer or employee’ . . . does not include
an independent contractor doing business with the state.”). See also 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. . . .”).
5
the material in the median and monitoring compliance with the conditions of that
approval.
With respect to approving the stockpile area and traffic plan,9 this case is
analogous to Reidling v. City of Gainesville.10 In that case, the DOT designed a
parkway construction project and oversaw its construction by an independent
contractor.11 The contractor responsible for disposal of excess fill material asked the
DOT if it could dispose of fill material on other property owned by the city. The
request was ultimately approved, and a large amount of fill material was deposited
on the property. After some time, a severe rain storm inundated the area with rain, and
the newly elevated disposal site no longer functioned as a flood plain for a nearby
creek, allegedly causing flooding on residential property. The property owners sued
the DOT. This Court held that immunity was waived for a negligent design claim
9
The plaintiffs argue that because the traffic plan has not been located there is
a fact question as to whether the traffic control plan met engineering and other
applicable standards such that immunity is waived under OCGA § 50-21-24 (10). But
even if the plan was deficient, this does not change the nature of the DOT’s conduct,
which was to approve the plan created by Seaboard. Such approval is within the
licensing powers exception to immunity under OCGA § 50-21-24 (9).
10
280 Ga. App. 698, 703 (1) (634 SE2d 862) (2006).
11
See id. at 699-700.
6
because there was evidence the DOT failed to meet generally accepted engineering
and design standards when it designed the project without any disposal site.12 But the
Court also held that, pursuant to OCGA § 50-21-24 (9), the DOT maintained
immunity for claims that it negligently approved the disposal site.13
Here, the plaintiffs’ claim is predicated on the stockpile area itself, not the
design of the project as a whole. The plaintiffs’ expert witness, a former DOT project
engineer, reviewed the project and stated that he had no criticisms of the overall
design plans on the project. Instead, his critique focused on the stockpile plan itself.
With respect to that plan, it is undisputed that Seaboard (not the DOT) was
responsible for the design and construction of the stockpile plan. The stockpile
location was proposed by Seaboard after the design process to save time and to “help
coordinate the heavy rail movements which will be required to receive this amount
of [road construction] material.” Thus, the DOT’s role was limited to reviewing and
approving the stockpile location and traffic plan designed and proposed by Seaboard.
12
See id. at 702-703 (1). See also OCGA § 50-21-24 (10).
13
See Reidling, 280 Ga. App. at 703 (1).
7
Accordingly, pursuant to OCGA § 50-21-24 (9), the DOT is immune from liability
resulting from the decision to approve the stockpile plan.14
The plaintiffs argue that the DOT’s on-site monitoring of the construction
operations, including at least one instance of penalizing Seaboard for crossing the
median in an unapproved location , amounts to inspection of State property not
covered by the inspection powers exception.15 But the conduct in this case amounts
to oversight of construction activities for purposes of administering the contract, and
it does not amount to an inspection of State property for regulatory compliance or
safety hazards as contemplated by the language of OCGA § 50-21-24 (8). Absent a
clear legislative directive, we decline to extend the waiver of sovereign immunity to
14
See Dept. of Transp. v. Kovalcik, 328 Ga. App. 185, 190-191 (1) (b) (761
SE2d 584) (2014) (“to the extent that any of the [plaintiffs’] claims are predicated on
the DOT’s improper authorization of the plans or the project, the DOT is immune”);
Reidling, 280 Ga. App. at 703 (1). We find the factual scenario before us distinct from
that in Kovalcik, which involved inspecting a completed state roadway project with
an allegedly hazardously designed curb and left turn lane. Here, the DOT’s relevant
on-site conduct was monitoring the method of construction as previously approved.
15
Compare Magueur v. Dept. of Transp., 248 Ga. App. 575, 577 (547 SE2d
304) (2001) (DOT immune for negligently inspecting construction plans and
construction site on county road project).
8
include independent contractors’s conduct16 even if a State actor in some way
attempts to ensure that contractors are operating safely on a State-approved project.
We emphasize that our conclusion is premised on the fact that the plaintiffs’
claims are not based on a failure to detect during a project inspection a hidden defect
or a deviation from approved plans or regulatory standards. Rather, the plaintiffs’
claims arise from the obvious risks associated with the decision to locate the stockpile
in the median. “Nomenclature notwithstanding, the substance of a claim must be
considered, and a party cannot do indirectly what the law does not allow to be done
directly.”17 The plaintiffs’ seek to recover for the DOT’s decision to allow stockpiling
in the median. Whether that was a good or bad decision, the DOT’s conduct in this
case falls within the exception to the immunity waiver in the GTCA.18
16
The plaintiffs raise no issue regarding the independent contractor status of
Seaboard or its subcontractors.
17
(Punctuation omitted.) Sommers Oil Co. v. Ga. Dept. of Agriculture, 305 Ga.
App. 330, 332 (699 SE2d 537) (2010) (State agency is immune from suit predicated
on State employee’s collusion in fraudulent inspection of fuel pumps).
18
See Murray v. Ga. Dept. of Transp., 284 Ga. App. 263, 266 (2) (644 SE2d
290) (2007) (physical precedent only) (“the [licensing powers] exception grants broad
immunity for losses resulting from virtually any action the State DOT could take
regarding the authorization” to install a traffic light); Dept. of Transp. v. Bishop, 216
Ga. App. 57, 58 (1) (453 SE2d 478) (1994) (DOT immune from claim arising from
approval of permit to build decorative wall).
9
Judgment reversed. Miller and Dillard, JJ., concur.
10