text:
    A02A0397.
    STEVENS et al. v. DEPARTMENT OF TRANSPORTATION.
    (572 SE2d 1)
   Ruffin, Judge.

After their daughter, Kelly, died in an automobile collision, Paul and Dede Stevens sued the Georgia Department of Transportation (“DOT”), alleging that it negligently designed the traffic control devices at the intersection where the collision occurred. The trial court granted the DOT’s motion for summary judgment, and the Stevenses appealed. For reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from a trial court’s grant of summary judgment, we review the evidence de novo and in a light most favorable to the non-moving party.

Viewed in favor of the Stevenses, the evidence shows that the collision occurred in Jones County, where State Road 11, a four-lane road, and State Road 18, a two-lane road, meet to form a “T” intersection. In February 1997, the county requested that the DOT approve stop and go traffic signals for the intersection, which was, at the time, controlled by stop signs. The DOT prepared a traffic engineering report on the intersection that specifically noted “[t]here are no sight distance problems.” The report concluded that the request for traffic lights should be granted. The signals were installed on or about July 30, 1998, along with temporary, white flashing strobe lights to warn oncoming vehicles of the newly installed traffic signals. A DOT district traffic engineer explained that the strobe, which flashes while the signal is red, is often temporarily installed by the DOT when new signals are put up.

The collision in this case occurred on October 26, 1998. One of the cars involved was driven by Phillip Hatcher. Hatcher first drove through the intersection on October 26 while taking his daughter to school. He turned off State Road 18 onto the northbound lanes of State Road 11. In his deposition, Hatcher testified that this was the first time he had driven through the intersection after the traffic lights were installed. He also testified, however, that he did not recall seeing the traffic signals when he passed through the intersection that morning and he did not know whether the light was green, whether he first came to a stop, whether he followed the car in front of him, or whether there was even a car in front of him. Hatcher explained: “I was used to approaching the intersection for years and just having a stop sign and pulling up like everybody else and going. I think that’s what I did.”

After dropping his daughter off at school, Hatcher drove south on State Road 11 on his way to work. As Hatcher approached the intersection with State Road 18, he was in the right lane. Hatcher described the moments preceding the collision as follows:

the sun was shining over to the left and it had hit me in the eye and I reached up to move my visor down, and when I looked up there were two cars . . . slowing down, and that’s when I looked up and saw the light. ... I was close to the light and I hit my brakes. . . . When I hit my brakes the car that I was driving started sliding through the intersection. . . . There was a little red compact car [that had] come out of that intersection. ... I didn’t see but one car, and that was the red car, and it came and went up to the left. ... I was glad I missed [that] vehicle, then here [came another car]. I mean, . . . [it] just appeared there. And I realized I was going to strike them and I did.

Hatcher stated in his deposition that he thought “the accident could have been avoided if there had been better warning.”

The car Hatcher struck was driven by Rhetta Faye Hill and also occupied by Kelly Stevens. Like Hatcher had done earlier that morning, Hill was turning off of State Road 18 onto the northbound lanes of State Road 11. Hill testified that, before the collision, her car was the fourth one in line waiting for a green light. When the light turned green, she followed the car in front of her, which was traveling at ten to fifteen mph. As she approached the intersection, Hill noticed that there was a car stopped in the left lane at the light Hatcher was approaching, and she “would have expected [Hatcher] to stop” for the red light. Kelly later died from injuries she sustained in the collision.

In support of their complaint against the DOT, the Stevenses attached the affidavit of an engineer, John Glennon. In his affidavit, Glennon concluded that the DOT breached a standard of care that “required the placement of extraordinary traffic control devices in advance of the intersection to both emphasize its presence and encourage drivers to reduce their speed.” According to Glennon, if the DOT had complied with the requisite standard of care, “the collision between [Hatcher’s] car and the vehicle in which Kelly Stevens was ridingt ] would have been avoided.” In its motion for summary judgment, the DOT argued that it was entitled to judgment as a matter of law because, among other things, the Stevenses had not presented any evidence of causation. The trial court granted the motion without explanation.

On appeal, the Stevenses assert that the trial court erred in granting summary judgment to the DOT because evidence shows that the negligence of the DOT and Hatcher “contributed to the occurrence of the accident and therefore [both defendants] share the liability concurrently.” We disagree.

This case is similar to Watson v. Marshall, in which an accident victim claimed that the DOT caused a driver to go the wrong way — against oncoming traffic — down an interstate by failing to place adequate signals, such as a “ ‘wrong way’ ” sign to warn the driver that she was going the wrong way. Like this case, the victim presented expert opinion evidence that the signage was inadequate and that the wrong way driving was, therefore, foreseeable. But the evidence showed that the driver did not pay any attention to the four signs that informed the driver where she was. Thus, we reasoned, “a jury [could] not speculate that [the driver] would have seen any sign DOT could have posted.” We concluded that, although the issue of proximate cause is generally a jury question, the “collision was not caused by DOT’s failure to put up adequate signs; it was caused by [the driver’s] turning onto an expressway without following any sign. Her conduct was unreasonable as a matter of law, and was not a hazard which the DOT should reasonably have foreseen.”

We reached a similar result in Smith v. Commercial Transp., in which the victims claimed the DOT breached its duty to put up signs warning drivers of an accident on the interstate. The evidence showed that the accident, which obstructed the roadway for almost six hours, caused traffic to back up two miles. When the victims’ car approached the congested area, its driver had the cruise control set at 65 mph, “failed to notice that the vehicles in front of him were slowing down, and [he] struck the rear of [a] tractor-trailer.” Although we acknowledged that “there can be more than one proximate cause of an accident,” we also recognized our holding in Watson that “where a driver misse[s] several indications of a hazard, jurors cannot speculate that putting up a sign about the hazard would have made any difference.” Thus, we concluded that “the failure to put up a warning sign could not have proximately caused the accident,” and summary judgment was therefore appropriate.

Decided July 8, 2002

Reconsideration denied July 24, 2002

Mullís, Marshall, Bindley & Powell, Julius A. Powell, Jr., for appellants.

Thurbert E. Baker, Attorney General, Jones, Cork & Miller,

The evidence showing a lack of causation in this case is even more compelling than in Watson and Smith. Here, Hatcher missed numerous indications that he was approaching an intersection controlled by a red light. Hatcher had driven through the same intersection earlier in the morning. Although Hatcher did not see the signal at that time, this was attributable to his own inattention. Indeed, he virtually conceded that he negotiated the intersection like he had for years when it was controlled by a stop sign. Hence, Hatcher drove by habit rather than by observation. When Hatcher approached the intersection for the second time, he failed to notice, until it was too late, that other cars around him were slowing down. And, while Hatcher saw, and barely avoided, the car in front of Hill’s as it crossed the intersection, he missed seeing the other two cars that had already turned off of State Road 18 and onto State Road 11. Again, this was not due to DOT’s negligence. Hatcher acknowledged that he looked away from his lane of travel to readjust his sun visor. Finally, it was estimated that Hatcher was 880 feet away from the intersection when his light turned from green to yellow, and 580 feet away when his light turned red. It is undisputed that, in addition to the red light, there was a white strobe light set up to warn drivers of the red light. Like all the other indicators, however, Hatcher failed to notice the strobe light.

Considering the fact that Hatcher missed all of these signals, a jury would be forced to speculate that he would have noticed or heeded another sign warning of the intersection. Thus, the DOT’s failure to install another sign did not proximately cause the collision, and it was entitled to judgment as a matter of law.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

Thomas C. Alexander, Christopher B. Jarrard, Warren C. Grice, for appellee.

       Paul Stevens sued in his individual capacity and as the administrator of Kelly’s estate. The Stevenses also sued other parties involved in the collision, but they are not parties to this appeal.

       See OCGA § 9-11-56 (c).

       See White v. Cauthen, 235 Ga. App. 245 (509 SE2d 140) (1998).

       It appears that Hatcher had recently relocated to the area after having lived in Atlanta for approximately one year.

       212 Ga. App. 206 (441 SE2d 427) (1994).

       See id. at 206-207 (1).

       Id. at 207.

       Id. at 208 (2).

       220 Ga. App. 866 (470 SE2d 446) (1996).

       Id.

       Id. at 867-868 (1), (2).

       Id. at 868 (2).

       See id.; Watson, supra.

       See Smith, supra; Watson, supra; Jackson v. City of Hahira, 244 Ga. App. 322, 324 (535 SE2d 327) (2000).


source: Caselaw Access Project

author: MlKELL, Judge.

license: Public Domain

text:
    A02A0426.
    WARD v. DODSON.
    (569 SE2d 554)
   MlKELL, Judge.

It is undisputed that Warren Ward originally filed suit against Clarence Dodson, Jr. in the State Court of Houston County on June 9, 2000, alleging personal injuries from an automobile accident that occurred during a police chase on January 3, 1999. Dodson is a sheriff’s deputy; however, the complaint did not name him in his official capacity. Ward later filed a motion to join the Houston County Board of Commissioners (the “County Commissioners”) and Sheriff Cullen Taitón as party defendants. After the court requested that defense counsel submit an order denying the motion to join the parties, Ward voluntarily dismissed the case on March 12, 2001. On March 14, 2001, the trial court entered an order denying the motion to join the County Commissioners and Sheriff Taitón.

Ward filed the present action in Houston County Superior Court the next day, March 15, over two months after the expiration of the two-year statute of limitation. OCGA § 9-3-33. The new suit named Dodson in both his official and individual capacities and included the County Commissioners and Sheriff Taitón as defendants. The County Commissioners and the sheriff moved to dismiss the claims against them on the ground that Ward improperly added new parties to the suit after the expiration of the statute of limitation. Before the court could rule on the motion, Ward dismissed his claims against the County Commissioners and Sheriff Taitón.

Dodson filed a motion for summary judgment, in which he raised official immunity and the statute of limitation. The court granted Dodson’s motion, concluding that Ward’s claims against Dodson individually were barred by official immunity, because Dodson’s actions in responding to the emergency call were discretionary rather than ministerial. See Cameron v. Lang, 274 Ga. 122, 125 (2) (549 SE2d 341) (2001). The court also determined that Ward’s failure to sue Dodson in his official capacity in the original suit prevented him from raising such claims in the refiled action.

Ward filed the present appeal, arguing that the court erred in concluding that the action against Dodson in his official capacity was barred by the statute of limitation. We disagree and affirm. Additionally, because Ward does not challenge the court’s decision that Dodson was entitled to official immunity in connection with the individual claims against him, the ruling is affirmed on that ground as well. See Sass v. First Nat. Bank &c., 228 Ga. App. 7, 8 (2) (491 SE2d 76) (1997).

Summary judgment is proper when there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (1) (503 SE2d 581) (1998).

We conclude that the trial court properly found that Ward could not maintain an action against Dodson in his official capacity. OCGA § 9-2-61 (a) permits a plaintiff to dismiss and recommence a suit “within the original applicable period of limitation [ ] or within six months after the . . . dismissal, whichever is later.” If the statute of limitation has not run, the plaintiff may add new parties and new claims to the refiled action; however, if the statute of limitation has expired, the plaintiff is limited to suing the same defendants under the same theories of recovery. Allstate Ins. Co. v. Baldwin, 244 Ga. App. 664, 665 (1) (536 SE2d 558) (2000). “[T]he new petition must be substantially the same as the original as to the essential parties. The renewal statute may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued.” (Footnotes omitted.) Id. See also Collins v. Byrd, 204 Ga. App. 893, 895 (2) (420 SE2d 785) (1992).

Therefore, the issue is whether Ward essentially named a different defendant in violation of the renewal statute by adding a claim against Dodson in his official capacity. As a preliminary matter, it is clear from the record that Ward’s original complaint was filed against Dodson individually. Ward admits in his appellate brief that “the first action filed against the Appellee in the State Court of Houston County did not name Appellee in his official capacity as Deputy Sheriff of Houston County.” In its order granting Dodson’s motion for summary judgment in the refiled action, the trial court recognized that “Plaintiff’s [original] complaint made no allegations that Defendant was a police officer, that he was in uniform, or that he was driving a police vehicle. The caption itself just names Defendant as Clarence Dodson, Jr.” Our review of the original complaint is consistent with the trial court’s conclusion. Furthermore, in determining the capacity in which a defendant is sued, courts should look to the complaint and the course of the proceedings. Colvin v. McDougall, 62 F3d 1316, 1317 (11th Cir. 1995). Here, the pleadings in the original suit lead to the conclusion that Dodson was sued only in his individual capacity. In addition to the complaint’s failure to mention the fact that Dodson was a sheriff’s deputy, Ward subsequently moved to add the County Commissioners and the sheriff, which would have been unnecessary had he sued Dodson in his official capacity.

Decided July 1, 2002

Reconsideration denied July 24, 2002

Carl A. Veline, Jr., Waymon S. Harrell, for appellant.

Cruser & Mitchell, William T. Mitchell, Deana S. Johnson, Downey & Cleveland, Russell B. Davis, Alan J. Gibson, Martin, Snow, Grant & Napier, Cubbedge Snow III, Sherman E. Moody III, for appellee.

Federal courts emphasize the difference between suing a defendant in his individual and official capacities. For instance, the Eleventh Circuit has expressly stated that “[w]e stress as much as we can that the difference between an official capacity suit and an individual capacity suit is a big difference. [Cit.] And, in general, plaintiffs have a duty to make plain who they are suing and to do so well before trial.” Colvin, supra at 1318. See also Fitzgerald v. McDaniel, 833 F2d 1516, 1520 (11th Cir. 1987).

Additionally, the Supreme Court of Georgia has recognized that a suit against a public employee in his or her official capacity is in reality a suit against the state. Cameron, supra at 126 (3). Accordingly, if Ward was able to name Dodson in his official capacity in the refiled suit, it would be tantamount to naming Houston County as a defendant in that action after the county had not been named in the original suit. Therefore, contrary to Ward’s argument that filing suit against Dodson individually was sufficient to satisfy the renewal statute, the trial court properly concluded that any claim against Dodson in his official capacity was barred by the statute of limitation.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       Dodson filed a motion for summary judgment based on official immunity, but Ward dismissed the case before the court could rule.

       The copy of the original complaint which is contained in the record has not been stamped as filed; however, neither party disputes that this is an accurate copy of the complaint filed in state court.


author: Barnes, Judge.

text:
    A00A2394.
    NOLAN ROAD WEST, LTD. v. PNC REALTY HOLDING CORPORATION OF GEORGIA et al.
    (569 SE2d 603)
    Decided July 24, 2002.

      Chamberlain, Hrdlicka, White, Williams & Martin, James L. Paul, Matthew J. McCoyd, for appellant.

      Parker, Hudson, Rainer & Dobbs, J. Marbury Rainer, Charles W. Lyons, for appellees.
   Barnes, Judge.

Division 2 of the decision of the Court of Appeals in this case having been reversed by the Supreme Court, Nolan Road West v. PNC Realty Holding Corp. &c., 274 Ga. 742 (559 SE2d 447) (2002), that portion of our decision in Nolan Road West v. PNC Realty Holding Corp. &c., 248 Ga. App. 248 (544 SE2d 750) (2001), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed as to Division 2.

Blackburn, C. J., and Eldridge, J., concur.


text:
    A00A2395.
    BRANNEN/GODDARD COMPANY et al. v. BAKER.
    (569 SE2d 602)
   Barnes, Judge.

Division 7 of the decision of the Court of Appeals in this case has been affirmed in part and reversed in part by the Supreme Court, Baker v. Brannen/Goddard Co., 274 Ga. 745, 750 (2) (559 SE2d 450) (2002), as follows:

[T]he judgment of the Court of Appeals is reversed to the extent that it allows B/G and Rich to recover for any unpaid monthly commissions due before September of 1992. Recovery is limited to the six-year period preceding the filing of the complaint [,] and, in the event of an amendment, any unpaid installments which become due in the months subsequent to September 1998.

Division 7 of our decision in Nolan Road West v. PNC Realty Holding Corp. &c., 248 Ga. App. 248 (544 SE2d 750) (2001), is therefore vacated, and the judgment of the Supreme Court is made the judgment of this court as to that Division.

Judgment affirmed in part and reversed in part with direction as to Division 7.

Blackburn, C. J., and Eldridge, J, concur.

Decided July 24, 2002.

Morris, Manning & Martin, Lewis E. Hassett, Jessica F. Pardi, Perry A. Phillips, for appellants.

Chamberlain, Hrdlicka, White, Williams & Martin, James L. Paul, Matthew J McCoyd, for appellee.


text:
    A02A0874.
    SMITH v. WILLIAMS.
    (569 SE2d 598)
   MlKELL, Judge.

Evelyn Williams filed suit against Syreeta K. Smith on December 9, 1999, to recover for injuries she allegedly sustained in an automobile accident. Smith filed a demand for jury trial on January 19,

2000. The case was placed on a May 14, 2001 trial calendar; however, it was continued by order of the trial court and placed on the June 18 calendar. Because Smith’s counsel had filed a leave of absence covering that date, the court placed the case on the July 30, 2001 trial calendar. Both Smith and Williams stipulate that counsel and the court agreed in July 2001 that because Williams resided in California, the case would be specially set for jury trial on October 3, 2001. Subsequent to the agreement, the court entered a written order on September 5, 2001, specially setting the trial for October 22, 2001, at 9:00 a.m. and ordering all parties and their counsel to appear.

Seemingly in conflict with that order, on October 3, 2001, after Williams filed a written waiver of jury trial, the court conducted a bench trial of the case in the absence of Smith and her counsel. Judgment in the amount of $20,815.66 was entered in favor of Williams. Smith filed the present appeal, arguing that the court erred in trying the case on October 3 when it had entered an order specially setting the case for October 22. We agree.

OCGA § 9-11-40 (c) provides that courts shall place cases on the trial calendar and provide notice to the parties. Uniform State Court Rule 8.3 requires the publication of a trial calendar at least 20 days prior to trial. It was certainly reasonable for Smith and her counsel to rely on the court’s order specially setting the trial for October 22, 2001. “Parties have a right to rely upon notice of trial assignments being given in compliance with court rules and [OCGA § 9-11-40, formerly] Code Ann. § 81A-140.” Vaughan v. Car Tapes, 135 Ga. App. 178, 182 (7) (217 SE2d 436) (1975). Despite Williams’ allegation in her brief that Smith received notice that the trial would proceed on October 3, there is no evidence in the record that Smith received such notice, waived her right to a jury trial, or consented to a trial date other than October 22.

Decided July 24, 2002.

Sharon W. Ware & Associates, Jane N. Wilkes, for appellant.

Charles M. Morris, for appellee.

In Wilkes v. Ricks, 126 Ga. App. 266 (190 SE2d 603) (1972), we reversed an entry of default judgment because the court failed to provide notice of the trial to the defendant as required by Code Ann. § 81A-140 (c), now OCGA § 9-11-40 (c). In Wilkes, we recognized that the defendant was entitled to his day in court. Id. at 267. Significantly, the record in the case at bar does not contain proof that the case was placed on a published calendar to be heard October 3, 2001; rather, the most recent written notice of a trial date was the order setting the case for trial on October 22.

In Taylor v. Chester, 207 Ga. App. 217 (427 SE2d 582) (1993), the trial court mailed notice of the trial calendar to an incorrect address despite being on notice of the defendant’s correct address. We ordered that the judgment against the defendant be set aside because the lack of notice was a nonamendable defect appearing on the face of the record under OCGA § 9-11-60 (d) and because the defendant should not be punished for the oversight of the clerk of court. Id. at 218-219.

We conclude in the case sub judice that Smith was entitled to rely on the written order of the court setting the case for trial on October 22, 2001, and that the court erred in conducting a trial in Smith’s absence on October 3. Accordingly, the judgment is reversed and the case remanded for a trial in which both parties can participate.

Judgment reversed and case remanded.

Andrews, P. J., and Phipps, J., concur.

       No written order to that effect was entered.


author: Blackburn, Chief Judge.

text:
    A02A1233.
    CITY OF ATLANTA v. HECTOR.
    (569 SE2d 600)
   Blackburn, Chief Judge.

Following the superior court’s dismissal of its petition for a writ of certiorari concerning the termination of Agatha Hoyer Hector, the City of Atlanta appeals, contending that the trial court erred by finding that its petition had not been timely filed. For the reasons set forth below, we agree and reverse.

The record shows that, on June 19, 2000, Hector was terminated from a position with the City of Atlanta Department of Finance for negligence and misconduct in performing her duties. Hector appealed to the City of Atlanta’s Civil Service Board, which ordered that Hector’s dismissal be rescinded, that a 30-day suspension be assessed, and that her former classification be restored. The Civil Service Board’s order was issued on October 24, 2000. Unhappy with this ruling, the City filed a petition for a writ of certiorari in superior court 34 days later on November 27, 2000, the first Monday following Thanksgiving. On October 8, 2001, the superior court dismissed the petition as untimely filed, and the City appeals.

OCGA § 5-4-6 (a) states: “All writs of certiorari shall be applied for within 30 days after the final determination of the case in which the error is alleged to have been committed. Applications made after 30 days are not timely and shall be dismissed by the court.” In conjunction with this rule, OCGA § 1-3-1 (d) (3) provides more generally:

Except as otherwise provided by time period computations specifically applying to other laws, when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty. When the last day prescribed for such action falls on a public and legal holiday as set forth in Code Section 1-4-1, the party having the privilege or duty shall have through the next business day to exercise the privilege or to discharge the duty. When the period of time prescribed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

It is undisputed that the thirtieth day following the issuance of the Civil Service Board’s order was Thursday, November 23, 2000, Thanksgiving Day of that year. It is also undisputed that the following day, Friday, November 24, 2000, was also a state holiday, and all courts were closed that day. As both of these days constituted holidays as set forth in OCGA § 1-4-1, the City of Atlanta had through the next business day to file its petition. That next business day was Monday, November 27, 2000, the day the City of Atlanta actually filed its petition.

Accordingly, the City of Atlanta timely filed its petition for writ of certiorari in this case, and the superior court’s dismissal of that petition as untimely was improper.

Decided July 24, 2002.

Susan P. Langford, Bernard R. Thomas, Sr., Chiquita T. Johnson, for appellant.

Mark Harper, for appellee.

Judgment reversed.

Johnson, P. J., and Miller, J., concur.


text:
    A02A1441.
    YIM v. THE STATE.
    (569 SE2d 601)
   Blackburn, Chief Judge.

Following a jury trial, Sunny Dara Yim appeals his convictions for armed robbery and burglary, contending that (1) the trial court erred by denying his motion for a mistrial following the improper admission of character evidence and (2) the jury rendered inconsistent verdicts by finding him guilty of armed robbery but not guilty of possessing a firearm during the commission of a crime. Because Yim’s contentions are without merit, we affirm.

1. Yim contends that the trial court erred by denying his motion for a mistrial following the admission of certain bad character evidence. To preserve a motion for mistrial for appellate review, however, the motion must be made contemporaneously with the objectionable testimony. Stephens v. State. In this case, Yim neither objected to the testimony at the time it was admitted nor moved for a mistrial. Instead, Yim waited until the State’s cross-examination of the defense witness had ended before making his motion for a mistrial. Under these circumstances, Yim has waived his right to make this argument on appeal. Id.

2. Yim contends that his conviction must be reversed because the jury rendered inconsistent verdicts by finding him guilty of armed robbery but not guilty of possessing a firearm during the commission of a crime.

[I]n Milam v. State, [the Supreme Court of Georgia] rejected • the inconsistent verdict rule in criminal cases. Milam involved a criminal defendant charged with two murders committed at the same time. The jury returned a verdict of not guilty by reason of insanity as to one murder, and guilty but mentally ill as to the other murder. [The Supreme Court] affirmed, ruling that there was no error inherent in the inconsistency between the conviction and acquittal. The Milam ruling stands for the proposition that a defendant cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count. Likewise, virtually all other Georgia cases affirming Georgia’s abolition of the inconsistent verdict rule involve jury verdicts of guilty and not guilty that are alleged to be inconsistent. These cases are in accordance with the principle that it is not generally within the trial court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts.

Decided July 24, 2002.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

(Footnotes omitted.) Dumas v. State.

As the Supreme Court of Georgia has previously rejected Yim’s argument regarding inconsistent verdicts, we find that it is without merit.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

        Stephens v. State, 232 Ga. App. 738, 739 (2) (503 SE2d 643) (1998).

        Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986).

        Dumas v. State, 266 Ga. 797, 799 (2) (471 SE2d 508) (1996).


author: Eldridge, Judge.

text:
    A02A1573.
    DEPARTMENT OF TRANSPORTATION v. DUPREE et al.
    (570 SE2d 1)
   Eldridge, Judge.

The Georgia Department of Transportation appeals from a judgment in a negligent design malpractice wrongful death action entered upon a jury verdict against it and in favor of Carolyn W. Dupree, administratrix of the estate of Betty N. Lamb, and for Samuel Lamb, husband of the deceased. Finding no merit to the appeal, we affirm.

At approximately 7:20 p.m. on November 25, 1996, a cloudy and overcast night, at the intersection of State Route 14 and High Point Road in Union City, Betty Lamb, a pedestrian, attempted to cross SR 14 (Roosevelt Highway, U. S. 29) going from east to west; when she was near the western curb of the five-lane highway, Mrs. Lamb was struck and killed by a motorist going south in the west curb lane. SR 14 is 62 feet wide at this point and had been widened from 24 feet. The sight distance from the north to south at the intersection was between 250 and 320 feet. Generally accepted design and engineering standards recommend a sight distance of 550 feet for an intersection where approaching speed is 45 mph. SR 14 runs in a north-south direction, and the motorist was driving at 45 mph south, a car length behind a van, and both were in the same lane. Immediately before the intersection, the van suddenly swerved to the southbound inside lane without signaling. Mrs. Lamb was wearing dark blue slacks and jacket and black boots. There were no marked crosswalks at the intersection. The ambient light enshadowed but did not illuminate Mrs. Lamb. The motorist never saw Mrs. Lamb prior to striking her.

Beginning in October 1986, DOT began widening SR 14 from two to five lanes in the vicinity of and including the intersection as the Widening Project. As part of the Widening Project, DOT considered in the overall design the types of traffic controls to place at the intersection, which included whether or not to install a traffic signal there. Prior to October 1986, the final revision of the Widening Project plans and design was completed, and the final design negligently did not include a traffic control device at the intersection although this would negatively affect both motorists and pedestrians crossing. In August 1987, the Widening Project was completed without a traffic control signal at the intersection. In 1996, the intersection still had no traffic light prior to the death, and the closest traffic control device to slow traffic was nearly two miles away in either direction.

Since 1987, Union City had repeatedly sought a permit from DOT to install a traffic control light at the intersection, because the intersection had a high collision rate. The Manual of Uniform Traffic Control Devices (“MUTCD”) adopted by DOT required a traffic engineering study prior to any determination to permit a traffic light. In 1987 and 1988 DOT performed such traffic engineering studies to evaluate the need for the issuance of a traffic signal permit and to determine its operational design. This MUTCD standard does not fall within the mandatory installation of traffic control devices but in the advisory area; it only recommends such installation. MUTCD contained “warrants” which describe conditions indicating the need for a traffic signal. Even where warrants existed justifying installation of such traffic signal, DOT did not permit the installation of a traffic control device until after the death. The basis for DOT’s refusal from 1986 until 1996 to issue a permit was that there was no vehicle backup or delay at this intersection from its studies. Again in 1996, Union City requested a signal here, and DOT performed yet another traffic engineering study of the intersection. On November 20, 1996, the district field personnel recommended a signal be installed at the intersection. After November 25, 1996, DOT issued Union City the permit to install a traffic signal at this intersection. Such studies done after the completion of the Widening Project demonstrated that the traffic control device should have been included in the original planning and design to protect crossing pedestrians and to avoid collisions.

Here, SR 14 had been widened from two to five lanes, but DOT took the position that the additional through lanes created easier access from side streets through gaps in the traffic flow on the main roadway, avoiding traffic congregation, and that the intersection functioned more safely and efficiently without the presence of a stop and go traffic signal. Thus, DOT took the position that its denial of a signal was based upon sound engineering judgment, which it contended was based upon generally accepted engineering design standards and practices, because there was no problem with backup or delay, which was its primary criterion and concern.

However, plaintiffs’ evidence demonstrated that DOT committed design and engineering malpractice in 1986 in omitting the traffic control device, in having too short a sight distance to the intersection, in having too wide an intersection for pedestrian crossing within the sight distance, and in allowing uninterrupted vehicle approach speeds of 45 mph. In 1986, there was one accident there, and six in 1987. DOT treated these as occurring during the construction process, which was a different factor. Plaintiffs’ expert testified that during the eighteen months of the study period prior to October 13, 1987, there had been ten angle accidents and six other types of accidents at the intersection.

Attached to the complaint was an adequate and complete OCGA § 9-11-9.1 expert affidavit, which opined that the DOT design was negligently done through malpractice in design without the traffic control device, deviating from generally accepted engineering standards for pedestrian and vehicle safety. At trial, the plaintiffs’ expert opinion evidence showed that the original Widening Project’s designs and plans without a traffic signal at the intersection, the approach speed of 45 mph, and a deficient sight distance negligently violated generally accepted engineering standards and practices at that time.

In 1996, when DOT determined the approval of the installation of a traffic signal, it issued a permit to the local government specifying the signal design plan and the equipment to be installed, assigning maintenance responsibility, securing power services, and allocating funding resources for installation and operation of the signal.

1. DOT contends that the trial court erred in denying DOT’s motion to dismiss for lack of subject matter jurisdiction on grounds of sovereign immunity. We do not agree for a number of reasons.

DOT’s first motion to dismiss was for failure to state a claim upon which relief can be granted and raised lack of waiver of sovereign immunity, an OCGA § 9-11-12 (b) (6) motion on the merits. The trial court considered the motion to dismiss as an OCGA § 9-11-12 (b) (6) motion on the merits and properly denied the motion. DOT’s application for interlocutory appeal was denied by this Court.

Subsequently, DOT made a motion to dismiss for lack of subject matter jurisdiction on the grounds of sovereign immunity and filed an affidavit with DOT’s traffic studies. The deposition and affidavit of plaintiffs’ expert Herman A. Hill, civil engineer, were filed in which he set out the basis for his opinion that DOT committed engineering and design malpractice. On April 19, 2001, after an OCGA § 9-11-12 (d) hearing, the trial court, after considering all the evidence on the OCGA § 9-11-12 (b) (1) motion to dismiss, denied it. This Court again denied an interlocutory appeal.

Under OCGA § 9-11-12 (b) (1), a defendant can raise a plea in abatement, which is not an adjudication on the merits, that raises the issue of the lack of subject matter jurisdiction in the trial court, but the grant of such motion only causes a dismissal of such action from the court without subject matter jurisdiction or until the condition precedent for subject matter jurisdiction has been satisfied, and the action can then be refiled. See generally Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974); Kim v. Dept. of Transp., 235 Ga. App. 480, 481-482 (2) (510 SE2d 50) (1998); Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991); Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481, 483 (379 SE2d 6) (1989) (physical precedent only); Theo v. Nat. Union Fire Ins. Co., 99 Ga. App. 342, 347-348 (3) (109 SE2d 53) (1959). Sovereign immunity of a state agency is not an affirmative defense, going to the merits of the case, but raises the issue of the trial court’s subject matter jurisdiction to try the case, and waiver of sovereign immunity “must be established by the party seeking to benefit from that waiver”; thus, the plaintiffs had the burden of establishing waiver of sovereign immunity. Bd. of Regents &c. of Ga. v. Daniels, 264 Ga. 328, 329 (446 SE2d 735) (1994); see also Sherin v. Dept. of Human Resources, 229 Ga. App. 621, 625 (4) (494 SE2d 518) (1997). With the deposition and affidavit of their expert witness, the plaintiffs carried their burden of proof on a motion to dismiss under OCGA § 9-11-12 (b) (1) by showing DOT’s malpractice.

“Jurisdiction of a court to afford the relief sought is a matter which should be decided preliminarily, at the outset. Jurisdiction either exists or does not exist without regard to the merit [s] of the case.” Whitlock v. Barrett, 158 Ga. App. 100, 103 (279 SE2d 244) (1981); accord Kidd v. Unger, 207 Ga. App. 109,110 (1) (427 SE2d 82) (1993). Thus, when a court either has or lacks subject matter jurisdiction, despite any conflict in the facts, the trial court should as a threshold issue determine its jurisdiction. Whitlock v. Barrett, supra at 103.

(a) Where the determination of subject matter jurisdiction and waiver of sovereign immunity are so factually intertwined with determination of the merits of the case, it is not error for the trial court to defer final determination of such issues until trial, and such deferral would constitute the better practice to avoid the merits of the case. See OCGA § 9-11-12 (b), (d). The determination of subject matter jurisdiction must be made by the trial judge prior to the entry of judgment, after the trial court has heard all the evidence, and the trial court may use the jury’s verdict in an advisory capacity only. “A holding that issues of fact remained would necessitate the resolution of those facts and a determination of jurisdiction by the trial court; it would not be cause for submission to a jury.” Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 843 (1) (392 SE2d 37) (1990). Prior to entry of judgment the trial court shall enter an order deciding the issue of subject matter jurisdiction. Id.

(b) The next best approach by the trial court, where the issues of liability and subject matter jurisdiction are so intertwined that to decide subject matter jurisdiction requires determination of the merits, would be to make a preliminary determination and defer any final decision until trial on the merits. See OCGA § 9-11-12 (d); Derbyshire v. United Builders Supplies, supra at 843; Sherwood Mem. Park v. Bryan, 142 Ga. App. 664 (236 SE2d 903) (1977).

In this design and engineering malpractice action against DOT, the plaintiffs attached to their complaint an expert witness’ affidavit and submitted his deposition, which stated that DOT had committed malpractice in omitting the traffic control device from the design and planning of the Widening Project, deviating from generally accepted engineering standards then applicable. In its motion to dismiss for lack of subject matter jurisdiction, DOT attached an affidavit that identified and authenticated the DOT engineering studies.

While an OCGA § 9-11-9.1 affidavit does not require the plaintiff to prove a prima facie case, if the expert opinion is sufficient to demonstrate that the malpractice case is not frivolous, then it should also be sufficient for a preliminary ruling to satisfy subject matter jurisdiction. Gadd v. Wilson & Co. &c., 262 Ga. 234, 235 (416 SE2d 285) (1992) (affidavit substantially met the requirements of the statute); Bowen v. Adams, 203 Ga. App. 123, 124 (416 SE2d 102) (1992) (whether the affidavit has to meet standards necessary to defeat a motion for grant of OCGA § 9-11-56). Such affidavit requirement applies to a malpractice action against an engineering professional. Kneip v. Southern Engineering Co., 260 Ga. 409 (2) (395 SE2d 809) (1990); Dept. of Transp. v. Cushway, 240 Ga. App. 464, 466 (523 SE2d 340) (1999); Jackson v. Dept. of Transp., 201 Ga. App. 863, 865-866 (412 SE2d 847) (1991). An expert’s affidavit that satisfies this section does not have to unequivocally demonstrate the evidentiary merits of the malpractice claim unless or until the defendant moves for summary judgment and submits evidence demonstrating the plaintiff’s claim lacks merit, and may rest upon evidentiary conclusions. Lennen v. Dept. of Transp., 239 Ga. App. 729, 730 (1) (521 SE2d 885) (1999); Bowen v. Adams, supra at 124; see also Ulbrich v. Batts, 206 Ga. App. 74, 75 (424 SE2d 288) (1992); 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 287-288 (378 SE2d 708) (1989). An affidavit sufficient under OCGA § 9-11-9.1 should be sufficient to make out subject matter jurisdiction as to DOT’s malpractice as a preliminary matter, because malpractice is not finally determined at such time on the merits and is based upon an opinion that can be fully tested on motion for summary judgment or trial. Hewett v. Kalish, 264 Ga. 183, 184-186 (1) (442 SE2d 233) (1994); Stubbs v. Ray, 218 Ga. App. 420-421 (1) (461 SE2d 906) (1995).

Generally, issues of the waiver of sovereign immunity are issues of law for determination by the trial court under an OCGA § 9-11-12 (b) (1) motion based upon the face of the complaint where the nature of the complaint indicates whether there is waiver with undisputed facts. However, under OCGA § 50-21-24, waiver of sovereign immunity may be a mixed question of law and fact for the trial court’s determination; subsections (1), (10), (12), and (13) of this Code section are based upon a factual predicate to determine nonwaiver; the facts may be in dispute. Specifically applicable in this case, the “plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where . . . plan or design” does not waive sovereign immunity, if, and only if, the trial court finds that it was “prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design” (Emphasis supplied.) OCGA § 50-21-24 (10); Daniels v. Dept. of Transp., 222 Ga. App. 237 (474 SE2d 26) (1996); Dept. of Transp. v. Brown, 218 Ga. App. 178 (460 SE2d 812) (1995), aff’d, 267 Ga. 6 (471 SE2d 849) (1996). Thus, to determine waiver, the trial court must find, based upon expert opinion, that a material issue of fact exists that DOT negligently planned and designed the Widening Project contrary to generally accepted engineering and design standards then in effect for the issue of liability to be tried. Therefore, the questions of malpractice and of waiver of sovereign immunity are intertwined, because a final determination by the trial court of waiver of sovereign immunity also is a final determination of DOT’s liability for malpractice, which constituted the waiver. OCGA § 50-21-24 (10); Daniels v. Dept. of Transp., supra at 237; Dept. of Transp. v. Brown, supra, 218 Ga. App. at 178. Thus, the trial court in determining subject matter jurisdiction must make a preliminary determination that a material issue of fact exists for jury determination that DOT negligently designed the intersection in deviation from the generally accepted engineering standards at such time; however, if it appears from the evidence that there is no issue of design negligence in deviation from the generally accepted engineering or design standards or that it is unlikely of proof, then the motion to dismiss should be granted for lack of subject matter jurisdiction, because there exists no waiver by DOT’s malpractice. See Dept. of Transp. v. Brown, supra, 267 Ga. at 8. Therefore, the trial court should not make a final adjudication upon the merits of the case that malpractice occurred but must determine that there exists a material issue of fact for jury determination that malpractice may have occurred, which waives sovereign immunity if the jury finds, in fact, malpractice by DOT.

Under OCGA § 9-11-12 (d), the section provides that:

[t]he defenses specifically enumerated in paragraphs (1) through (7) of subsection (b) of this Code section, whether made in a pleading or by motion, and the motion for judgment mentioned in subsection (c) of this Code section shall be heard and determined before [the] trial on application of any party unless the court orders that the hearing and determination thereof be deferred until the trial.

Thus, the trial court may hear evidence to determine the defense in abatement or may defer such determination until trial. OCGA § 9-11-12 (d); Hardy v. Arcemont, 213 Ga. App. 243 (444 SE2d 327) (1994); Myers v. McLarty, 150 Ga. App. 432, 433 (258 SE2d 56) (1979); Marvin L. Walker & Assoc. v. A. L. Buschman, Inc., 147 Ga. App. 851, 852 (1) (250 SE2d 532) (1978). Likewise, the trial court must determine such factual issues as to jurisdiction in a motion to set aside judgment. Montgomery v. USS Agri-Chem. Div., 155 Ga. App. 189, 190 (1) (270 SE2d 362) (1980). The trial judge may determine such issues on conflicting evidence prior to trial. Williamson v. Williamson, 155 Ga. App. 271, 273 (2) (270 SE2d 692) (1980), aff'd, 247 Ga. 260, 263 (2) (275 SE2d 42) (1981); Daughtry v. Chaney-Bush Irrigation, 166 Ga. App. 708, 709 (1) (305 SE2d 439) (1983). All parties may present evidence at an OCGA § 9-11-12 (d) hearing, and the factual issues of subject matter jurisdiction shall be determined by the trial court. Newport Timber Corp. v. Floyd, 247 Ga. 535, 539 (277 SE2d 646) (1981); Clements v. Hendi, 182 Ga. App. 118, 119 (1) (354 SE2d 700) (1987); Attwell v. Heritage Bank Mt. Pleasant, 161 Ga. App. 193, 194 (2) (291 SE2d 28) (1982). The trial court cannot refuse to hear evidence at the hearing, except to order the hearing and determination of the motion in abatement be deferred until trial. Sherwood Mem. Park v. Bryan, supra at 665. The Civil Practice Act gave the trial court great discretion in determining when, as a matter of judicial economy, to decide an OCGA § 9-11-12 (b) abatement motion.

(c) In this case, the trial court denied both a motion to dismiss based upon a failure to state a cause of action regarding sovereign immunity and a motion to dismiss for lack of subject matter jurisdiction after hearing evidence that there was a waiver of sovereign immunity by DOT’s malpractice. This Court twice refused to grant interlocutory appeals. When the trial court determines a jurisdictional issue based upon conflicting factual issues, “[o]n appeal, the court’s finding on a factual issue will be sustained if there is evidence which authorizes the finding.” (Citation omitted.) Hardy v. Arcemont, supra at 243; see also Watts v. Kegler, 133 Ga. App. 231, 233 (3) (211 SE2d 177) (1974). In making its determination of subject matter jurisdiction after considering the plaintiffs’ expert deposition and affidavit and DOT’s traffic studies at an OCGA § 9-11-12 (d) hearing, the trial court on conflicting evidence found subject matter jurisdiction.

When ruling on a motion to dismiss based upon jurisdictional grounds, the trial court must make the determination acting as the trier of fact. Big Canoe Corp. v. Williamson, 168 Ga. App. 179, 180 (308 SE2d 440) (1983); Montgomery v. USS Agri-Chem. Div., [supra at 190 (1)]. Its evaluation rests on where the preponderance of evidence lies, not necessarily on whether the issue may be decided as a matter of law. Barrow v. Gen. Motors Corp., 172 Ga. App. 287, 288 (2) (322 SE2d 900) (1984).

Derbyshire v. United Builders Supplies, supra at 842-843.

In this case, the trial court submitted to the jury the determination whether or not in the design and plans for the Widening Project the failure to include a traffic control device at the intersection constituted a negligent departure from substantial compliance from generally accepted engineering practices at such time. By allowing the case to go to trial on the issue of malpractice in design, the trial court found that under OCGA § 50-21-24 (10) a waiver of sovereign immunity had possibly occurred from the evidence before it. “Factual determinations of the trier of fact will be reversed only where the evidence demands a contrary finding, and when the trial judge conducts a hearing on a motion to dismiss [for lack of subject matter jurisdiction], his findings, as a trier of fact, are tested by the any evidence rule.” (Citation omitted.) McLendon v. Albany Warehouse Co., 203 Ga. App. 865, 866 (1) (418 SE2d 130) (1992); accord Montgomery v. USS Ágri-Chem. Div., supra at 190 (1). Even if the plaintiffs, through deposition of their expert and his affidavit at the OCGA § 9-11-12 (d) hearing, did not produce sufficient evidence to prove waiver and negligence in design, then such harmless error was cured and overcome at trial with plaintiffs’ case-in-chief where the jury found negligent design of the intersection by DOT and the trial court entered judgment.

2. DOT contends that the trial court erred in denying its motion for directed verdict on the design exception to sovereign immunity. We do not agree.

“The Georgia Tort Claims Act provides a waiver of 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 § 50-21-24. The highway design standards exception provides” an exception only when there was no engineering design and planning malpractice by DOT. (Citations omitted.) Dept. of Transp. v. Brown, supra, 218 Ga. App. at 178-179 (1). “The highway design exception to the Georgia Tort Claims Act requires that expert testimony or other competent evidence be submitted to show that the plan or design was not prepared in substantial compliance with generally accepted engineering or design standards at the time such plan was prepared.” Id. at 179.

“Where and whether to install traffic lights were design decisions. When to open the intersection, and whether to open it without traffic lights are operational decisions, and the decision to use stop signs ... for the cross-road was a design decision.” Dept. of Transp. v. Brown, supra, 267 Ga. at 7 (1). Thus, the plaintiffs in complying with OCGA § 9-11-9.1 raised an engineering malpractice action against DOT for failure to include traffic control devices at the intersection in the initial plans and designs as well as the deficient sight distance, and the plaintiffs at trial supported such claim for engineering malpractice with their expert witness and evidence.

The design standard exception does not make reference to MUTCD; it refers to “generally accepted engineering or design standards.” While MUTCD certainly has that status in this state (OCGA § 32-6-50), it does not have the status of being the exclusive source of engineering and design standards that DOT suggests. If the legislature intended to limit the source of standards to MUTCD or to written mandatory standards as DOT suggests, it could have done so specifically, but it did not. . . . Just as expert witnesses are competent to establish standards in other professional malpractice actions (“[i]n malpractice actions, a plaintiff must present expert testimony ‘to establish the parameters of acceptable professional conduct,’ ”) we see no reason, and DOT has supplied none, why expert witnesses should not be competent to do so in actions against DOT for engineering malpractice. Contrary to DOT’S assertion on appeal, the record contains expert testimony that some of DOT’s actions and failures to act with regard to the intersection involved in this case violated generally accepted engineering standards. That testimony conforms to the requirements of the statute. We agree with the Court of Appeals that the trial court did not err in denying DOT’s motion for directed verdict on the question of whether DOT violated generally accepted engineering standards, thus removing it from the protection of the design standards exception.

(Citations omitted.) Id. at 8 (2).

Hill, a civil engineer with highway design expertise, testified for the plaintiffs that he had studied the intersection from 1978 to 1996; that historically there had been numerous collisions there after the widening; that increasing the lanes to five without a traffic control device doubled the risk of collisions because of the deficient sight distance; that under the standard of engineering care in 1986, DOT should have included a trafile control device in the design for the Widening Project; and that DOT departed from the engineering standard of care in design and planning in not requiring and including a traffic control device at this intersection in 1986 with the deficient sight distance and the uninterrupted speed of 45 mph. With the widening and with the deficient sight distance, motorists approaching the intersection at 45 mph could not stop before reaching the intersection for traffic or for crossing pedestrians, which increased the dangerousness of the intersection in deviation from generally accepted engineering design standards. The traffic studies after 1986 showing collisions confirmed that it was negligent not to require a traffic control device in the 1986 plans with the deficient sight distance and speeds of 45 mph. He also testified that widening without a traffic control also increased speed from either direction where the nearest traffic control device was over a mile in either direction and that there should be a sight distance of 550 feet for speed of 45 mph to allow safe stopping at the intersection. But, as designed, this intersection had a sight distance of only 250 to 320 feet to the north, which added to the danger without a traffic control device. This deficient sight distance also deviated from the generally accepted engineering design standards in effect in 1986. A pedestrian would cross at the average walking speed of four feet per second and would take thirteen seconds to cross the highway at the intersection. The uninterrupted motorist speed of 45 mph, the deficient sight distance, the width of 62 feet, and the absence of a traffic signal all made this intersection dangerous for pedestrians, because it would take a vehicle at that speed only 14 to 15 seconds to reach the intersection from the extreme of the sight distance. Thus, in the 1986 design, DOT departed from the generally accepted engineering design standard of care regarding pedestrian crossing at the intersection. The subsequent engineering traffic studies corroborated this opinion that DOT had been negligent in 1986 in failing to require a traffic control device at the intersection as demonstrated by the many collisions.

“[T]he trial court did not err in denying DOT’S motion for directed verdict on the question of whether DOT violated generally accepted engineering standards, thus removing it from the protection of the design standards exception.” Dept. of Transp. v. Brown, supra, 267 Ga. at 8 (2).

Further, John Padgett, retired DOT district traffic engineer, testified for the plaintiffs that from August 1987 until August 1988 there had been nine accidents, of which seven had been angle collisions and of which four involved injuries, which a traffic control signal would have prevented. Angela B. Bastion, former DOT traffic engineer, testified that between January 1986 and June 1987 there had been ten angle collisions at the intersection; the north sight distance from the intersection as designed by DOT was only 320 feet; in 1994 six right angle collisions and one rear-end collision had occurred; and in 1995 there were four right angle collisions. She further testified that there was a MARTA stop at the intersection, an apartment complex on the west side of the road, and pedestrian traffic crossing SR 14 was heavy, because of a pay telephone at the AMOCO store. The nearest traffic light to the intersection was 1.97 miles away to the north.

3. DOT contends that the trial court erred in denying its motion for directed verdict on the permit exception to sovereign immunity. We agree that the permit exception prevented sovereign immunity from being waived as to negligence in failing to issue the permit for a traffic light after completion of the Widening Project.

Under OCGA § 50-21-24 (9), the Act creates a permit exception to waiver of sovereign immunity as to: “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.” For a municipality to acquire a traffic control device, someone must conduct an engineering study, and DOT must exercise its professional discretion either to grant or deny a permit to erect such traffic control device. Whitley v. Gwinnett County, 221 Ga. App. 18, 19 (1) (470 SE2d 724) (1996).

Failure to timely issue a permit to install a traffic control device does not waive sovereign immunity. Dept. of Transp. v. Cox, 246 Ga. App. 221, 224 (540 SE2d 218) (2000); Dept. of Transp. v. Bishop, 216 Ga. App. 57 (1) (453 SE2d 478) (1995).

In Divisions 1 and 2, we determined that the issue of design malpractice waived sovereign immunity, which included the failure to require that a traffic control device be installed at the intersection under the Widening Project, and which proved DOT committed design malpractice. Subsequent evidence as to the absence of the traffic control device and the various studies was relevant and material as to the knowledge, necessity of, and feasibility of the installation of such traffic control device as part of the original Widening Project design and plans deviating from the generally accepted engineering standards at such time. The failure to direct a verdict on this issue has no effect on the verdict and judgment. Further, the effect of the denial of such motion on the verdict and judgment was not raised and preserved before the trial court in a motion for new trial.

4. The DOT contends that the trial court erred in denying its motion for directed verdict on the administratrix’s claim for preimpact pain and suffering. We do not agree.

For pre-impact pain and suffering to be awarded, the jury must have some evidence that the deceased at some point in time was conscious of her imminent death; the jury may infer such consciousness from evidence immediately prior to impact or following her injury. Monk v. Dial, 212 Ga. App. 362 (441 SE2d 857) (1994).

Nonetheless, from evidence that the [van] veered shortly before the [car struck the decedent], the jury could infer that [the] decedent was aware of the impending [impact], and from these circumstances could extrapolate the probable mental state of [the] decedent in [the] last moment of consciousness. The fright, shock, and mental suffering experienced by an individual due to wrongful acts of negligence will authorize a recovery where attended with physical injury. Contrary to defendantPs] assertion, we find no requirement that the physical injury precede the mental pain and suffering.

(Citations omitted.) Id. at 362 (1).

While the driver of the car that struck Mrs. Lamb did not see her, this does not give rise to the inference that Mrs. Lamb did not both see and hear the van and the car as they bore down upon her at 45 mph when she was only part of a lane from the safety of the west curb. The headlights would have been visible to Mrs. Lamb at least 150 feet away from her. Mrs. Lamb would have been able to see the approaching headlights rounding the curve over 350 feet away and up to 14 seconds away. Since it would take the van approximately 120 to 180 feet to change lanes, then Mrs. Lamb would have had several seconds to realize her deadly peril as the headlights of the following car loomed behind the swerving van. Thus, Mrs. Lamb would have gone from relief at seeing the van swerve away from her to horror at seeing the car’s lights looming at her in her lane. Thus, denial of the motion was proper.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

Decided July 24, 2002

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Robert C. Edwards, Assistant Attorney General, for appellant.

Johnson & Ward, William D. deGolian, William C. Lanham, Clark H. McGehee, for appellees.

       If the plaintiff must make out a prima facie case on the merits through his evidence to meet his burden of proof to satisfy subject matter jurisdiction, then the trial court under OCGA § 9-11-12 (d) has the authority to resolve disputed issues of fact and to draw reasonable inferences from the evidence. In such situation where liability and subject matter jurisdiction are inextricably intertwined, a ruling for the plaintiff on subject matter jurisdiction also decides the issue of liability, leaving only the issue of damages for jury determination.
      However, although OCGA § 9-11-12 (d) clothes the [trial] court with discretion to hear jurisdictional issues in advance of trial, it is a legal discretion which must balance the factors favoring pretrial determination of a defense against other circumstances favoring delay, and which generally should not be exercised to consider questions of jurisdiction which are largely co-extensive with the merits of a claim. In exercising this discretion, the cotut must balance the need to test the sufficiency of the defense or objection and the right of a party to have his defense or objection promptly decided and thereby possibly avoid costly litigation against such factors as the expense and delay the hearing may cause, the difficulty or likelihood of arriving at a meaningful result at the hearing, and the possibility that the issue to be decided on the hearing is so interwoven with the merits of the case that a postponement until trial is desirable. In particular, where determination of the defense will involve going into the merits, the question may well be reserved until trial. The rule is not intended to permit fragmentary and separate trials of issues that require coherent presentation for their just determination.
      (Citations and punctuation omitted.) Ga. Power Co. v. Harrison, 253 Ga. 212, 214-215 (2) (318 SE2d 306) (1984).

       By analogy, the intertwining of factual issues of subject matter jurisdiction and tort liability are like the determination of Long Arm jurisdiction. See generally Atlanta Propeller Svc. v. Hoffman GMBH & Co. KG, 191 Ga. App. 529 (382 SE2d 109) (1989). Where the evidence shows that no tort or injury occurred in Georgia, the action is dismissed, but if there was evidence that a tort or injury occurred in Georgia, then jurisdiction is found. Id. at 530 (1). Georgia applies Long Arm tort jurisdiction to the outer constitutional limits when there is either a tort or injury in Georgia, but such determination does not determine liability. See generally Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60 (195 SE2d 399) (1973). “Thus, pursuant to OCGA § 9-10-91 [(2) or] (3) jurisdiction may be exercised as to plaintiffs’ cause of action alleging a tortious injury in this state caused by [defendant’s] alleged negligence in manufacturing the [product] outside the state.” Showa Denko K.K. v. Pangle, 202 Ga. App. 245, 247 (1) (414 SE2d 658) (1991). “The trial court was empowered by OCGA § 9-11-12 (d) to determine factual issues in regard to whether there had been minimum contact so as to authorize jurisdiction over defendants pursuant to OCGA § 9-10-91.” (Citations omitted.) Pascavage v. Can-Do, Inc., 178 Ga. App. 566 (344 SE2d 261) (1986).


text:
    A02A0087.
    KOHL v. TIRADO.
    (569 SE2d 576)
   Barnes, Judge.

John Scott Kohl sued podiatrist Lissette Tirado, asserting that Dr. Tirado committed malpractice in failing to diagnose a fractured ankle and provide appropriate treatment. A jury awarded Kohl $9,000 in damages, and he appeals, contending the trial court erred (1) in denying his motion for new trial on damages, (2) in admitting Dr. Tirado’s records into evidence, and (3) in overruling his objection to expert witness testimony that was based on opinion rather than fact. Finding no error, we affirm.

Kohl injured his ankle on September 7, 1996, while water-skiing on vacation in Tennessee. Two days later, when he returned to Atlanta, he saw Dr. Tirado, who x-rayed his ankle and diagnosed a sprain. She recommended that Kohl refrain from weight-bearing, wear a compression cast to decrease swelling, and return in two weeks. On September 17, 1996, he returned to Dr. Tirado, who noted that Kohl could move his ankle better, and that it was not swollen, had purple bruising, and was significantly less tender. He had begun bearing partial weight on the injured ankle, and Dr. Tirado noted he was progressing well. On October 2, 1996, Kohl returned for a third visit and reported that he had returned to some of his regular activities and was experiencing mild foot discomfort primarily when standing a long time or running.

On November 12, 1996, Kohl presented to Dr. Tirado with increased pain and tenderness that began two weeks earlier while climbing a ladder. Because these pain symptoms were new, Dr. Tirado referred Kohl for a CT scan, which she testified revealed a fracture but no evidence the bone had begun healing. The initial x-ray was not available at trial; an imaging center employee testified it had been returned to Dr. Tirado’s office, and Dr. Tirado testified that she was only in the office where the courier said he delivered the x-ray one day a week, and that office had been closed the day of delivery.

On November 21, 1996, an orthopedic surgeon operated on Kohl’s ankle, and he testified that the fracture had healed improperly and could not be repaired correctly. Kohl underwent a second surgical procedure in December 1998, which he said helped only temporarily. Kohl testified that he had significantly reduced his former high level of physical activity due to pain and limitations in his ankle joint. He introduced medical bills covering his expenses from September 9, 1996, when he first saw Dr. Tirado for his ankle, to the present, totaling $21,132.49. An expert orthopedic surgeon testified that, based on his review of the CT scan and the operating surgeon’s testimony that the break had healed improperly, it was his opinion that the injury did not occur in November 1996, but was consistent with having occurred in September 1996. When asked if Dr. Tirado should have diagnosed the fracture on September 9, 1996, the expert responded that the diagnosis should have been made “prior to the time that it was ultimately made.” He also testified that he thought the failure of the standard of care related to “the length of time from the injury to the diagnosis, as opposed to the specific treatment that was rendered on that initial visit.”

1. Kohl contends the trial court abused its discretion in denying his motion for a new trial on the issue of damages, arguing that the jury’s $9,000 lump sum award is inadequate because it does not even equal his medical bills. “The question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of evidence in the case.” OCGA § 51-12-12 (a). “[T]he focus of OCGA § 51-12-12, under which the award is being reviewed, is to allow the trial court to interfere with a jury verdict in two opposite situations — where the award is so inadequate or so excessive as to be contrary to the preponderance of the evidence.” Moody v. Dykes, 269 Ga. 217, 221 (6) (496 SE2d 907) (1998). “[A]n excessive or inadequate verdict is a mistake of fact rather than of law and addresses itself to the discretion of the trial judge who, like the jury, saw the witnesses and heard the testimony.” Id. at 221-222.

The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to shock the conscience.

(Punctuation omitted.) Wallace v. Stringer, 250 Ga. App. 850, 855 (2) (553 SE2d 166) (2001).

In this case, Kohl’s own expert testified that only the failure to diagnose the fracture earlier violated the standard of care, but declined to specify a date when he thought that violation occurred. The expert also testified that the treatment recommended for a sprain “could also work for a break or a fracture.” Further, Kohl would have incurred some of those medical expenses for treatment of his injured ankle regardless of any malpractice. A verdict for less than the amount of the plaintiff’s proved medical expenses is not so inadequate as to require a new trial where testimony showed that some portion of the plaintiff’s medical expenses was at least partially related to his initial injury, and not just to any injury caused by Tirado’s negligence. See Turpin v. Worley, 206 Ga. App. 341, 342 (1) (425 SE2d 895) (1992). Further, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. Brown v. Southern Aggregate Co., 207 Ga. App. 886, 888 (1) (429 SE2d 294) (1993). The trial court did not err in denying Kohl’s motion for new trial on the issue of damages.

2. Kohl contends that the trial court erred in admitting his medical records into evidence, arguing here, as he did at trial, that (a) the records contained hearsay; (b) they did not meet the business records exception because they were “full of opinion”; and (c) they were self-serving memoranda. When Dr. Tirado first began discussing her office notes, Kohl made the three objections noted above. The trial court reserved ruling on the hearsay objection and denied the other two grounds. Following Dr. Tirado’s testimony, she tendered the records, which were admitted without objection.

(a) “[W]e are limited on appeal to those grounds presented to and ruled upon by the trial court and then enumerated as error.” (Punctuation omitted.) Dietz v. Becker, 209 Ga. App. 678, 679 (3) (434 SE2d 103) (1993). Here, the trial court reserved ruling on the hearsay objection and then admitted the records without objection; thus, we will not consider this ground. The trial court did, however, deny Kohl’s objection to the records on the basis that they contained inadmissible opinions and were self-serving memoranda.

(b) ' Kohl argues that the medical records were inadmissible because they contained opinion evidence and thus were not subject to the business records exception to the hearsay rule. A medical record containing diagnostic opinions and conclusions may be admitted into evidence if “the proper foundation is laid, i.e., the person who entered such diagnostic opinions and conclusions upon the record must qualify as an expert and relate the facts upon which the entry was based.” Cassano v. Pilgreen’s, Inc., 117 Ga. App. 260, 261 (2) (160 SE2d 439) (1968). Dr. Tirado testified regarding the facts upon which she relied in reaching her opinions about Kohl’s ankle injury and was available for cross-examination. Further, with proper notice,

[u]pon the trial of any civil case involving injury or disease, any medical report in narrative form which has been signed and dated by an examining or treating licensed . . . podiatrist . . . shall be admissible and received in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations, including the basis therefor, by the person signing the report, the same as if that person were present at trial and testifying as a witness.

OCGA § 24-3-18 (a). Kohl does not contend he did not receive notice that these records were going to be used at trial, and he cross-examined Dr. Tirado thoroughly regarding her opinions and diagnoses. The trial court did not err in denying Kohl’s objection to Dr. Tirado’s tender of Kohl’s medical records because they contained the podiatrist’s opinions.

(c) Kohl objected to the admission on the ground that his medical records constituted “self-serving memoranda.” Examples of self-serving memoranda that have been deemed inadmissible hearsay include notes made by the defendant’s agent before preparing an application for insurance coverage (Nationwide &c. Ins. Co. v. Rhee, 160 Ga. App. 468, 472 (10) (287 SE2d 257) (1981)); a note regarding a phone call related to the terms of a disputed contract (Maryfield Plantation v. Harris Gin Co., 116 Ga. App. 744, 747 (4) (159 SE2d 125) (1967)); and a written statement, not furnished to the other party, that a contract had been performed within a year of suit being filed on a materialman’s lien (Young v. Landers, 31 Ga. App. 59 (119 SE 464) (1923)). Those cases are unlike the case before us, in which a patient sued his treating podiatrist for malpractice, and the disputed evidence consists of the patient’s medical records. As the statute allowing the business records exception to the hearsay rule provides, the “circumstances of the making of the writing or record . . . may be shown to affect its weight; but they shall not affect its admissibility.” OCGA § 24-3-14 (c).

“Admission of evidence is committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion.” (Citation and punctuation omitted.) Chambers v. Gwinnett Community Hosp., 253 Ga. App. 25, 26 (1) (557 SE2d 412) (2001). We find no abuse of discretion here.

Decided July 12, 2002

Reconsideration denied July 25, 2002

England & England, J. Melvin England, for appellant.

Drew, Eckl & Farnham, James M. Poe, Barbara A. Marschalk, for appellee.

(d) Finally, Kohl failed to object to the records on the ground that they violated the “continuing witness” rule, and we will not consider that issue for the first time on appeal. Dietz v. Becker, supra, 209 Ga. App. at 679.

3. Kohl asserts that the trial court erred in allowing an expert witness to give an opinion that was based on opinion rather than facts. The testimony to which he objects follows a hypothetical question posed to Dr. Tirado’s expert witness, asking him to assume among other things that Dr. Tirado read Kohl’s x-rays and did not find any fracture. The trial court overruled Kohl’s objection, and the expert testified that Dr. Tirado’s subsequent actions complied with the standard of care. On cross-examination, the expert admitted that if the hypothetical were changed and Kohl’s x-ray had shown a fracture that the podiatrist did not see, then his opinion would be “destroyed.”

“The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses. The proper mode of examining an expert, where he is not testifying from his own knowledge, is to ask him hypothetical questions. [Cit.]” Parrish v. State, 237 Ga. App. 274, 278 (2) (iii) & (iv) (514 SE2d 458) (1999). The issue of whether Kohl’s ankle was fractured or not when he first began treatment with Dr. Tirado constitutes the main factual dispute in this case. The expert testified that, assuming the ankle was not fractured initially, Dr. Tirado’s treatment fell within the accepted standard of care, and further testified on cross-examination that if the ankle were fractured initially, the x-rays revealed the fracture, and Dr. Tirado missed it, then her treatment fell outside the accepted standard of care. “ After an expert testifies as to [her] opinion, [she] may be examined as to the factors which [she] considered in formulating that opinion. We find no error here.’ Likewise, this court finds no error here.” Woodruff v. Naik, 181 Ga. App. 70, 71 (5) (351 SE2d 233) (1986).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author:
Ruffin, Judge.
      BARNES, Judge,

text:
    A02A0243.
    RIDLEY v. MONROE.
    (569 SE2d 561)
   Ruffin, Judge.

Monica Ridley was injured in an automobile collision while riding in a car driven by her co-worker, Teresa Monroe. Claiming that Monroe’s negligence caused the collision, Ridley sued Monroe for damages. Monroe moved for summary judgment, arguing that the exclusive remedy provision of Georgia’s Workers’ Compensation Act (“the Act”) barred the claim. The trial court granted Monroe’s motion, and Ridley appeals. For reasons that follow, we affirm.

Summary judgment is appropriate when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” In this case, the relevant facts are undisputed.

Following the collision, Ridley filed a workers’ compensation claim against her employer. Although the wreck occurred during her lunch break, Ridley asserted that she was on a work-related errand at the time and, therefore, was injured in the course of her employment. Although Ridley’s employer initially controverted the claim, it ultimately entered a settlement agreement with Ridley and paid her compensation “in compromise and lump sum settlement of all disputed issues and claims within the scope and purpose of OCGA § 34-9-15.” Paragraph 3 of that agreement provided: “It is agreed and acknowledged by the parties that this claim is not compensable under [the] Georgia Workers’ Compensation Law. Thus, all parties request that the State Board of Workers’ Compensation enter an award that denies liability on behalf of the employer and insurer.” As required by law, the parties submitted the agreement to the State Board of Workers’ Compensation, which approved the settlement.

Citing to this agreement, Monroe moved for summary judgment, arguing that because Ridley asserted and settled a workers’ compensation claim, the exclusive remedy provision embodied in OCGA § 34-9-11 barred her negligence action. Ridley acknowledged Georgia’s exclusive remedy rule, which provides, in part, that “when an injury is sustained during the course of employment as a result of the negligence of a co-worker, the employee’s sole remedy is against the employer pursuant to the . . . Georgia Workers’ Compensation Act.” She noted, however, that she settled her workers’ compensation claim on a no-liability basis with the stipulation that the claim did not fall within the Act. According to Ridley, therefore, the exclusive remedy provision does not bar her suit against Monroe.

The trial court rejected Ridley’s argument, concluding that by pursuing and settling the workers’ compensation claim, she brought herself within the Act and its exclusive remedy restriction. We find no error.

The Workers’ Compensation Act permits parties to settle claims short of trial, even where the parties dispute whether the Act applies to a claim. OCGA § 34-9-15, which governs and regulates workers’ compensation settlements, provides:

Whenever it shall appear to the board, by stipulation of the parties or otherwise, that there is a bona fide dispute as to facts, the determination of which will materially affect the right of the employee or dependent to recover compensation or the amount of compensation to be recovered, or that there is a genuine dispute as to the applicability of this chapter, and it further appears that the parties have agreed upon a settlement between themselves, which settlement gives due - regard and weight to the conflicting evidence available relating to the disputed facts or to the questions as to the applicability of this chapter, then, upon such determination, the board shall approve the settlement and enter an award conforming to the terms thereof.

In July 2000, the legislature amended OCGA § 34-9-15 to authorize the board to consider and approve “no-liability” stipulations in settlement agreements. The amended provision allows the board “to approve a stipulated settlement between the parties which concludes that there is no liability under this chapter and to retain jurisdiction to enforce any agreement which resolves, in whole or in part, a claim filed with the board.” The legislature thus recognized that, where a dispute over liability arises but the parties want to settle a claim, they may decide to enter a “no-liability” stipulation. OCGA § 34-9-15 (b) specifically empowers the board to approve and exercise jurisdiction over these settlements.

Through OCGA § 34-9-15, the legislature created specific rules and procedures for settling workers’ compensation claims. Nothing in that Code section, however, removes a settlement agreement from the Act’s exclusive remedy provision. As we have found on several occasions, OCGA § 34-9-11 bars tort suits against an employer or its employees following a workers’ compensation settlement. And we cannot accept Ridley’s argument that an employee avoids the exclusive remedy’s bar simply by inserting a “no-liability” clause into a settlement agreement. When the legislature specifically addressed “no-liability” stipulations in OCGA § 34-9-15 (b), it gave no indication that such stipulations remove a claim from the Act or the exclusive remedy restriction.

The Workers’ Compensation Act is a “humanitarian measure that should be liberally construed to effectuate its purpose of providing relief to the injured employee and protecting employers from excessive damage awards.” Permitting parties to circumvent the Act’s exclusive remedy restriction simply by settling a claim on a “no-liability” basis undermines this purpose and eviscerates a legislative scheme in which the sole remedy lies against the employer.

The analysis suggested by Ridley, and advocated by the dissent, would allow an employer and injured employee in a “negligent coworker” case to settle a workers’ compensation claim and agree to a no-liability stipulation, with the expectation that the employee would then pursue claims against the co-worker in the potentially more lucrative tort arena. By including “no-liability” language in their settlement agreement, an employer and injured employee could thereby dodge the exclusive remedy provision and leave the employee’s otherwise protected co-worker open to liability.

We cannot endorse this analysis. Without some signal that the legislature intended to exempt “no-liability” settlements from the exclusive remedy provision, we refuse to allow parties to avoid the statutory bar — and fundamentally change the workers’ compensation scheme — in this manner. Until the legislature directs otherwise, parties cannot engineer exceptions to this provision merely by incorporating “no-liability” language into the boilerplate of their workers’ compensation settlement agreements.

Ridley’s citation to Heffley v. Adkins does not require a different result. The Heffley claimant was injured while riding in a car driven by a Waffle House employee. She sought workers’ compensation benefits from Waffle House, but Waffle House denied that the claimant was an employee. Eventually, Waffle House and the claimant stipulated that “she did not sustain a compensable injury and that Waffle House [was] not liable to her for workers’ compensation benefits.” We subsequently permitted her negligence action against the employee driver to proceed, finding that the “no compensation award” under the stipulation established that the claimant was not a Waffle House employee and, consequently, that the exclusive remedy provision did not bar her claim against the driver.

As an initial matter, we decided Heffley well before the legislature amended OCGA § 34-9-15 to specifically address “no-liability” stipulations. Furthermore, in contrast to Heffley, the “no-liability” stipulation in this case did not result in an award of “no compensation.” Although Ridley’s board-approved settlement denied any liability on behalf of the employer, she received compensation through the agreement “in compromise and lump sum settlement of all disputed issues and claims.”

We find, therefore, that the exclusive remedy provision applies here, despite the “no-liability” language in the workers’ compensation settlement agreement. As noted by the dissent, Ridley apparently suffered a severe injury in the wreck. That fact, however, cannot sway our decision. Ridley alleged that she was injured in the course of her employment, sought workers’ compensation benefits from her employer, and ultimately settled her claim for a lump sum amount pursuant to OCGA § 34-9-15. Under these circumstances, the trial court properly found that OCGA § 34-9-11 barred Ridley’s claims against Monroe.

Judgment affirmed.

Pope, P. J., Andrews, P. J., Johnson, P. J., and Mikell, J., concur. Barnes and Phipps, JJ, dissent.

BARNES, Judge,

dissenting.

Because I disagree that the exclusive remedy provision of the Workers’ Compensation Act bars Ridley from bringing this suit, I respectfully dissent from the majority opinion.

When she was injured, Ridley was a passenger in her co-worker Monroe’s car while on a lunch break. She alleged in her complaint that Monroe was speeding and collided with another car that pulled out of a driveway into the road. She apparently suffered a broken neck and incurred more than $20,000 in medical expenses. She filed a workers’ compensation claim that day, which her employer controverted four months later, and then filed this personal injury action against Monroe shortly before the two-year statute of limitation ran. Monroe denied liability and raised the affirmative defense of the exclusive remedy provision, among other defenses.

The record includes a copy of a “Compromise Stipulation and Agreement” among Ridley, the employer, and the workers’ compensation carrier, filed with the State Board of Workers’ Compensation. In it, the employer and insurer recite their contention that Ridley “was not injured in and out of the course of her employment with the employer.” The parties agreed that Ridley’s claim “is not compensable under Georgia Workers’ Compensation Law,” and sought an award by the Board denying liability on behalf of the employer and insurer. The document also refers to a “lump sum settlement,” but includes no reference to the amount of monetary payment.

Monroe argued on summary judgment that the workers’ compensation settlement agreement barred Ridley’s personal injury suit against her, and the trial court agreed. We now consider whether a settlement agreement in which the employee, employer, and insurer agree that the employee’s injury is not covered by the Act constitutes a right and remedy granted to the employee by the Act that bars a lawsuit against an allegedly negligent co-worker.

OCGA § 34-9-11 (a) provides that “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death. . . .” We have reversed a summary judgment granted to a defendant under the exclusive remedy provision where we concluded that the evidence was conflicting as to whether the employee was injured in the scope of her employment. Wade v. Ga. Diversified Indus., 240 Ga. App. 225 (522 SE2d 746) (1999). We have no such conflict here; the evidence of record establishes that Ridley was not injured in the scope of her employment, and thus her personal injury suit should not be barred.

Monroe has not met her burden of proving Ridley is covered under the Act.

A defendant may assert coverage by the Workmen’s Compensation Act as a bar to a common law negligence action against him arising out of the same occurrence. And this is true whether or not a claim for compensation has been made. But in order to sustain such assertion one must plead and prove coverage under the Act. If there were an award of compensation it would, of course, be an adjudication of coverage and consequently a bar to a common law action. On the other hand, if there were an award of no compensation because of no coverage under the Act, it would be an adjudication of no coverage and the common law action should proceed. But the record indicates that, as yet, there has been no award and hence no adjudication either way, and if the defendants are to sustain their plea they have the burden of showing coverage as a bar.

(Citation omitted.) Bishop v. Weems, 118 Ga. App. 180, 181 (4) (162 SE2d 879) (1968).

A 2000 amendment to OCGA § 34-9-15 (b) authorizes the Board to approve a stipulated settlement between the parties that concludes there is no liability under this chapter. The record contains a settlement agreement in which Ridley and her employer agree that the injury she suffered while on a lunch break is not compensable under Georgia workers’ compensation law.

We are in no position to otherwise conclude that Ridley’s claim was compensable. “[I]t is well-settled law in this state that where a ‘rest break’ or ‘lunch break’ is provided to an employee, during which time the employee is free to use the time as he chooses, making it personal to him, an injury occurring during the break period arises out of personal pursuit and not out of the employment and is not compensable.” Blair v. Ga. Baptist Children’s Home &c., 189 Ga. App. 579, 582 (2) (377 SE2d 21) (1988).

The majority notes that the legislature did not indicate in OCGA § 34-9-15 (b) that no-liability stipulations remove a claim from the exclusive remedy restriction. The conclusion that the exclusive remedy provision does not apply if there is no liability under the Act would seem to follow naturally, without explicit direction. Further, “the Board had already been approving such no-fault settlements, and the change codified that practice” rather than creating a new practice. 17 Ga. State U. L. Rev. 231, 234, fn. 32 (2000).

For these reasons, I respectfully dissent.

I am authorized to state that Judge Phipps joins in this dissent.

Decided July 2, 2002

Reconsideration denied July 25, 2002.

Carl A. Veline, Jr., for appellant.

Martin, Snow, Grant & Napier, John C. Daniel III, Richard A. Epps, Jr., for appellee.

       See OCGA § 34-9-11 (a).

       OCGA § 9-11-56 (c).

       Asked to admit below that “[a] settlement agreement [had] been reached whereby [she had] been paid or [would] receive monetary compensation or payment of benefits as a result of the . . . worker’s compensation claim,” Ridley only denied that “benefits under workers’ compensation were paid.”

       See Justice v. Davidson Kennedy Co., 194 Ga. App. 585, 586-587 (391 SE2d 414) (1990) (workers’ compensation settlement is not binding until approved by the board).

        Dickey v. Harden, 202 Ga. App. 645-646 (414 SE2d 924) (1992).' See also OCGA § 34-9-11 (a).

       (Emphasis supplied.) OCGA § 34-9-15 (a) (Supp. 2001); see also Justice, supra at 586 (“ ‘OCGA § 34-9-15 provides the sole method by which claims arising under the Workers’ Compensation Act may be settled.’ ”).

       See OCGA § 34-9-15 (b) (Supp. 2001); Ga. L. 2000, p. 1321.

       OCGA § 34-9-15 (b) (Supp. 2001).

       See Dove v. Sentry Ins., 236 Ga. App. 754, 755-756 (513 SE2d 289) (1999) (child could not bring wrongful death suit against his deceased father’s employer after his mother settled a workers’ compensation claim relating to the death, even though the employer initially denied liability under the Act); Nat. Data Corp. v. Hooper, 185 Ga. App. 866, 868 (366 SE2d 189) (1988) (employee could not sue employer for personal injuries after settling workers’ compensation claim); Thorn v. Phillips, 164 Ga. App. 47, 48 (296 SE2d 251) (1982) (employee who settled workers’ compensation claim for injuries suffered when he was struck by a vehicle at work could not bring separate tort action against co-worker who was driving vehicle).

       See OCGA § 34-9-15 (b) (Supp. 2001).

        McCarty v. Delta Pride, 247 Ga. App. 734, 736 (1) (b) (545 SE2d 117) (2001).

       Employers might even use the “no-liability” stipulation as a bargaining chip to obtain a better settlement.

       See Thorn, supra.

       See McCarty, supra (when construing a statute, court must “attempt to implement the intent and purpose of the legislature in enacting the law”).

       209 Ga. App. 736 (434 SE2d 537) (1993).

       Id.

       See id. at 736-737 (1).

       Id. at 736.

       See OCGA § 34-9-11 (a); see also Thorn, supra.