Pfeiffer v. Georgia Department of Transportation , 275 Ga. 827 ( 2002 )

Fletcher, Chief Justice.

We granted certiorari in this wrongful death case to examine whether the Court of Appeals of Georgia, in affirming the grant of summary judgment to the Georgia Department of Transportation, erred in failing to address contentions raised by Karen Pfeiffer because they were not raised in the trial court.¹ Because the court of appeals’s decision is consistent with the purpose of summary judgment and long-standing appellate procedure, we affirm.

1. Karen Pfeiffer sued DOT for the death of her husband, Robert Pfeiffer, a construction worker working for the general contractor, Rosiek Construction Company, on the Sidney Lanier Bridge project. Pfeiffer alleged that DOT was responsible for ensuring the safety of workers on the project and that its breach of this duty of care caused the death of her husband. DOT moved for summary judgment on the ground that its contract with Rosiek specified that the contractor had the responsibility for administering on-site construction safety procedures. In opposing summary judgment, Pfeiffer argued that, because the project was a federal aid construction project, 23 CFR § 630.1010 (b) imposed a non-delegable duty on DOT with regard to safety issues on the project. The trial court granted summary judgment to DOT after rejecting the argument that the federal regulation imposed a non-delegable duty on DOT.

The court of appeals affirmed the trial court, concluding first that the contract between DOT and Rosiek did unambiguously delegate the responsibility for safety oversight to Rosiek and, second, that this delegation was not impermissible under section 630.1010 (b). The court of appeals refused to address Pfeiffer’s other legal arguments in support of reversing the trial court, holding that, because Pfeiffer failed to raise these arguments in the trial court, she could not raise them for the first time on appeal.

2. The purpose behind summary judgment is to “dispose of litigation expeditiously and avoid useless time and expense to go through a jury trial.”² This purpose is thwarted when a party may withhold meritorious legal arguments until appeal. Allowing a party to raise new arguments also ignores the duties and responsibilities placed on the parties by OCGA § 9-11-56. Each party has a duty to present his best case on a motion for summary judgment.³ This Court has specifically held that, in responding to a motion for summary judgment, plaintiffs have a statutory duty “to produce whatever viable theory of recovery they might have or run the risk of an adjudication on the merits of their case.”⁴ The same burden is placed on the parties with regard to factual issues. As we held in Lau’s Corp. v. Haskins, once a defendant points out that there is an absence of evidence to support the plaintiff’s case, the burden then shifts to the plaintiff, who “must point to specific evidence giving rise to a triable issue.”⁵

Additionally, our appellate courts are courts for the correction of errors of law committed in the trial court.⁶ Routinely, this Court refuses to review issues not raised in the trial court.⁷ “ ‘[T]o consider the case on a completely different basis from that presented below . . . would be contrary to the line of cases . . . holding, “He must stand or fall upon the position taken in the trial court.” ’ ”⁸ Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.⁹ If the rule were otherwise, a party opposing a motion for summary judgment need not raise any legal issue, spend the next year thinking up and researching additional issues for the appellate court to address, and require the opposing party to address those issues within the narrow time frame of appellate practice rules.

Therefore, absent special circumstances,¹⁰ an appellate court need not consider arguments raised for the first time on appeal.* ¹¹ This rule is consistent with the purposes of the summary judgment and with the majority of other jurisdictions.¹²

3. Our decision in Dental One Assoc. v. JKR Realty Assoc., Ltd.,¹³ does not demand a different result. That case does not stand for the proposition than a party can raise new legal issues on appeal. Instead that case simply acknowledges that to be entitled to summary judgment, a party who bears the burden of proof at trial must present the trial court with the facts showing its entitlement to judgment. When the record fails to contain the facts supporting the grant of summary judgment, the non-movant may argue this ground to the appellate court regardless of whether the non-movant asserted an “objection to the prima facie case.”¹⁴

Judgment affirmed.

All the Justices concur, except Benham, Hunstein and Carley, JJ, who dissent.

1 Pfeiffer v. Department of Transportation, 250 Ga. App. 643 (551 SE2d 58) (2001).

2 Crutcher v. Crawford Land Co., 220 Ga. 298, 303 (138 SE2d 580) (1964).

3 Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974).

4 Id. at 606.

5 (Emphasis supplied.) Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991).

6 Georgia Dept. of Natural Resources v. Coweta County, 261 Ga. 484 (405 SE2d 470) (1991).

7 See, e.g., Sharpe v. Department of Transp., 270 Ga. 101, 103 (505 SE2d 473) (1998); Standard Guar. Ins. Co. v. Bundrage, 264 Ga. 632, 633 (452 SE2d 474) (1994); Hammond v. Paul, 249 Ga. 241, 242 (290 SE2d 54) (1982); Carter v. Pruitt, 235 Ga. 204, 204 (219 SE2d 114) (1975); Duncan v. Duncan, 226 Ga. 605 (2) (176 SE2d 88) (1970); Velkey v. Grimes, 214 Ga. 420, 421 (105 SE2d 224) (1958).

8 Bell v. Sellers, 248 Ga. 424, 426 (283 SE2d 877) (1981), quoting Federal Ins. Co. v. Oakwood Steel Co., 126 Ga. App. 479 (191 SE2d 298) (1972).

9 See, e.g., Palmer v. Hoffman, 318 U. S. 109, 119 (63 SC 477, 87 LE 645) (1943) (fairness to trial court requires objections to charge to be made at trial); Johnson v. Hensel Phelps Constr. Co., 250 Ga. 83, 84 (295 SE2d 841) (1982) (discussing inherent injustice if party appealing denial of motion for directed verdict is permitted to assert on appeal an issue not raised in motion).

10 Special circumstances could include “a jurisdictional challenge, a claim of sovereign immunity, a serious issue of public policy, a change in the law, or [an] error that works manifest injustice.” See 19 Moore’s Federal Practice, sec. 205.05[2] at 205-58 (Matthew Bender 3d ed.).

11 Whether a party should file a transcript or a stipulation under OCGA § 5-6-41 (i) depends entirely on whether that party asserted a new legal argument for the first time at the hearing on the motion for summary judgment.

12 See, e.g., Blue Cross & Blue Shield v. Weitz, 913 F2d 1544, 1550 (11th Cir. 1990) (summary judgment will not be reversed on appeal for failing to consider argument not articulated by party); Ex parte Ryals, 773 So2d 1011, 1013 (Ala. 2000) (“trial court cannot be reversed on any ground or argument not presented for or against the motion [for summary judgment]”); Washington Federation of State Employees v. Office of Financial Management, 849 P2d 1201, 1203 (Wash. 1993) (in reviewing summary judgment, appellate court considers “only evidence and issues called to the attention of the trial court”); Hobelman Motors v. Allred, 685 P2d 544, 546 (Utah 1984) (failure to object to affidavit waives right to complain of its consideration on motion for summary judgment); Houston v. Clear Creek Basin Authority, 589 SW2d 671, 678 (Tex. 1979) (“non-movant may not urge on appeal as reason for reversal of the summary judgment any and every new ground that he can think of, nor can he resurrect grounds that he abandoned at the hearing”); Minnehoma Financial Co. v. Pauli, 565 P2d 835, 838 (Wyo. 1977) (fundamental rule applicable to appeals from summary judgments is “that parties may not advance new theories or issues in order to secure a reversal of the lower court’s determination”).

13 269 Ga. 616 (501 SE2d 497) (1998).

14 Id. at 617.