Coweta County v. Adams , 221 Ga. App. 868 ( 1996 )

Smith, Judge,

dissenting.

I must respectfully dissent, because McDaniel v. Southern R. Co., 130 Ga. App. 324, 325-326 (4) (203 SE2d 260) (1973), clearly controls the extent of the county’s responsibility for the maintenance of structures adjoining the public roadway. To hold otherwise will radically change the established law of Georgia governing such structures and impose a consumer products liability analysis which is inappropriate in this instance.⁵

The facts of McDaniel are virtually identical to those presented here: a driver left the roadway and was impaled by an allegedly defective railing on a bridge approach. The only distinction is that the loss of control in McDaniel was caused by the driver falling asleep at the wheel instead of a blown tire. Contrary to the majority’s assertion, however, this variance is not a valid distinction, because it is completely immaterial to the holding. McDaniel explicitly states its analysis in terms of proximate cause: “[T]his falls within the ‘domain of the unusual and extraordinary, and therefore, in contemplation of law, of the unforeseeable,’ there being no defect in the bridge which was a contributory cause toward rendering the automobile uncontrollable. [Cit.]” (Emphasis supplied.) Id. at 326 (4).

Whether the collision is caused purely by driver error, as in McDaniel, or an alleged product defect combined with alleged driver error, as in this case, the proximate cause is not the bridge railing. In fact, proximate cause in this case is even more attenuated than in McDaniel, because there is one more link in the chain of causation: the allegedly defective tire. The proximate cause analysis and case law employed in McDaniel have been approved regularly and recently by this Court. See, e.g., Gray v. Gober, 185 Ga. App. 624, 627 (365 SE2d 279) (1988), citing Ga. Power Co. v. Murray, 57 Ga. App. 141, 149, 150 (194 SE 403) (1937)] Atlanta Obstetrics &c. Group, P.A. v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990), citing Eberhart v. Seaboard Air-Line R. Co., 34 Ga. App. 49, 54-55 (129 SE 2) (1925). The proper application of this analysis does not leave the plaintiffs here without a remedy or recovery; the tire manufacturer remains a defendant, and it appears that its product, if defective, was the proximate cause of the collision.

While almost directly on point here, the McDaniel decision is only one case in a large body of Georgia law governing liability for structures adjoining the public way. For liability to be imposed, such structures must impinge on the traveled way, i.e., make contact with a vehicle while it has its wheels on the road. If the driver had to leave the roadway to contact the structure, there is no liability. “Ordinary use of the public streets and highways contemplates use as provided by law. Stated another way, when the public streets and highways are used in such a manner as to violate the law, such use is not ‘ordinary.’ ” (Citations and punctuation omitted; emphasis supplied.) Ga. Power Co. v. Collum, 176 Ga. App. 61, 62-63 (1) (334 SE2d 922) (1985).

Despite the majority’s attempt to employ a foreseeability analysis more appropriate to consumer products liability law, that standard is clearly improper in the context of structures beside the public roadway: “In the context of the instant case, appellant is not being sued as the manufacturer of any defective personal property sold as new property.” Id. at 61 (1). Focusing on this alleged bridge defect as though it were a consumer product defect is a major alteration of the established law. Strict products liability is a creature of statute. OCGA § 51-1-11. Moreover, the manufacturer of a consumer product is held to a particular standard regarding the anticipation of misuse as “ordinary use.” See, e.g., Center Chemical Co. v. Parzini, 234 Ga. 868, 869-870 (3) (218 SE2d 580) (1975). The duties of governments and public utilities maintaining structures adjacent to the public roads are evaluated under a different standard.

As a public policy matter, this distinction seems eminently reasonable. Given the many miles of roadway, finite resources, and fiscal responsibilities to the public involved, it is a rational public policy goal to set limits on the liability of governments and public utilities for structures beside the public roads. The law under McDaniel and Collum directly encourages governments and public utilities to give priority to the repair of structures that pose a hazard to drivers using the roadway in a lawful and ordinary manner. These hazards are those most likely to affect the largest number of drivers on a daily basis, and public policy rightly encourages the prompt and effective repair of those hazards by imposing liability.

The majority’s reasoning also places this Court in the difficult position of holding that the county should anticipate a blowout or other mechanical failure combined with subsequent driver failure to keep control, while retaining the McDaniel rule that the county need not anticipate driver error standing alone. Because so many vehicular collisions are caused by driver error, such as incompetence, misjudgment, fatigue (as in McDaniel), or the influence of drugs or alcohol, we would in effect be holding that mechanical failure is “not unusual or extraordinary” under a products liability analysis and thus not unusual in this context, while continuing to insist that a far more common cause of vehicular collisions is “unusual or extraordinary.” This position is, in my opinion, untenable.

Public policy also requires that a county not be held to new construction standards not in effect at the time a bridge was constructed, and McDaniel recognizes this distinction. 130 Ga. App. at 325 (4). The record reflects that the bridge at issue here is at least 35 years old, while the standards relied on by the majority were promulgated in 1988 and 1992, the latter after the collision at issue here. The majority in effect argues that governmental entities are required to bring all public structures up to current standards as soon as a federal or state inspection has identified structures as currently nonconforming. The liability implications of such a holding would be far reaching, particularly at a time when decaying public infrastructure is a nationwide concern.

Decided June 26, 1996 Hawkins & Parnell, H. Lane Young II, Kimberly A. Houston Ridley, for appellants. Love & Willingham, Allen S. Willingham, Novy, James & Vaughan, Eugene Novy, Deborah M. Vaughan, for appellees.

Moreover, the standards cited go entirely to construction and design, not maintenance, and issues of construction and design were explicitly removed from consideration here by this Court’s earlier decision. Adams v. Coweta County, 208 Ga. App. 334, 335 (2) (430 SE2d 599) (1993). We cannot revisit issues already decided by this Court. OCGA § 9-11-60 (h).

For these reasons, I must respectfully dissent.

5 The issues raised here would not have been reached, however, but for the county’s concession, noted in the majority, that it could be held liable for injuries caused by reason of defective bridges under OCGA § 32-1-3. See Kordares v. Gwinnett County, 220 Ga. App. 848 (470 SE2d 479) (1996).