author: ANDREWS, Presiding Judge.

text:
    A14A1486.
    GEORGIA DEPARTMENT OF TRANSPORTATION v. OWENS et al. C.W. MATTHEWS CONTRACTING COMPANY, INC. v. OWENS et al.
    A14A1487.
    (766 SE2d 569)
   ANDREWS, Presiding Judge.

These interlocutory appeals arise out of an action by Pamela and Ronnie Owens, individually and as parents and personal representative of the Estate of Christopher Róndale Owens (“Owens”), Ryan Montgomery, and Scottie Joseph Thibodaux (“Appellees”) against C.W. Matthews Contracting Company, Inc. (“CW Matthews”), the Georgia Department of Transportation (“GDOT”), and other defendants asserting claims of negligence and wrongful death arising out of a collision at a construction site along Interstate 75/85 (“1-75/85”) in Atlanta in which Owens was killed and Montgomery and Thibodaux suffered severe injuries. In Case No. A14A1487, CW Matthews appeals from the trial court’s order denying its motion for reconsideration of the trial court’s prior order denying in large part CW Matthews’ motion for summary judgment, which had argued, among other things, that Appellees could not establish proximate causation. CW Matthews also appeals from the trial court’s orders denying motions to exclude testimony of two of Appellees’ experts. In Case No. A14A1486, GDOT appeals from the trial court’s order denying its motion to dismiss based on sovereign immunity and the same orders at issue in Case No. A14A1487 denying the motions to exclude expert testimony. In Case No. A14A1487, we affirm the trial court’s order denying summary judgment, concluding that proximate causation is a question of fact. In Case No. A14A1486, we affirm in part and reverse in part the trial court’s order denying GDOT’s motion to dismiss, concluding that GDOT is entitled to immunity from claims relating to approval of traffic control plans for the construction site and on-site inspection of CW Matthews’ traffic control activities. In both cases, we affirm the trial court’s order denying the parties’ motion to exclude Jeffrey Kidd’s testimony but affirm in part and vacate in part its order on the motion to exclude Ruston Hunt’s testimony.

In an appeal from the denial of a motion for summary judgment, we conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006). So viewed, the record shows that Owens, Thibodaux and Montgomery, all members of the United States Army stationed at Fort Benning, drove to Atlanta in a rented Jeep Patriot to spend the weekend of May 14, 2010 there and celebrate with one of their friends, Aleyda Amaya, who was being relocated. Montgomery testified that when they went out in Atlanta on the evening of May 15, 2010, Owens was the designated driver because he was not the “party” type. Owens, Thibodaux and Montgomery met Amaya and others at the nightclub Esso. One of Amaya’s friends saw Owens with a drink in his hand at the nightclub but testified that he did not look intoxicated at any point that evening. Owens, Thibodaux, Montgomery and their friends left Esso between 2:00 and 3:00 a.m. Amaya’s friend testified that the group planned to meet at a Waffle House but that Owens, Thibodaux and Montgomery were going to make one stop first.

In the early morning of May 16, 2010 while it was still dark, CW Matthews, a contractor for GDOT on a project called the 14th Street Bridge project, was conducting repaving work on the right shoulder on the southbound side of 1-75/85 just north of the 10th Street Bridge in Atlanta. At approximately 5:00 a.m., Garth Barnett, a contract dump truck driver, was planning to deliver his last load of asphalt for the night to the construction site. In a discovery response, Barnett stated that his dump truck was among other dump trucks approaching the work site at around 40 miles per hour or less. He slowed some more as the dump truck ahead of him prepared to pass through the placards marking the path to move to the end of the line of trucks ahead of the paver on the shoulder. Barnett testified that he was in the second lane over from the right shoulder (the “second lane”). Barnett first testified that the second lane was not an open lane of travel at the time but then stated that he could not recall whether it was open. He believed, however, that at least at some point along the roadway, two right lanes were closed. Barnett told police that he was driving approximately 25 miles per hour in the second lane when Owens’ Jeep struck his dump truck from behind. At the time of the collision, Barnett had activated the four-way flashers on his truck, and he had reflective tape on the back of the vehicle.

Montgomery and Thibodaux were both asleep when the collision occurred. Montgomery testified that at the time of the collision, Owens had not slept since waking up Saturday morning. Postmortem tests showed that Owens’ blood alcohol content was 0.069. The crash data retrieval report produced from the Jeep’s airbag control module (“CDR report”) revealed that in the five seconds prior to the crash, Owens was traveling 70 miles per hour, the engine throttle percentage remained relatively constant at approximately 17 percent, and Owens did not brake. The posted speed limit in the area where the accident occurred was 55 miles per hour.

Charles Payne, another dump truck driver, testified that he was driving southbound on 1-75/85 when he saw Owens’ Jeep merge onto 1-75/85 from Interstate 85 in his left rearview mirror. According to Payne, as soon as the Jeep passed him, it swerved in front of him and veered across four or five lanes of traffic without signaling and collided with Barnett’s dump truck. Payne estimated that the Jeep hit Barnett’s dump truck at an angle of about 45 degrees. Barnett thought that if the Jeep had not hit the dump truck it would have kept going and hit the CW Matthews work crew.

Police officer Nadia Byrd witnessed the collision from behind while she was about one-and-a half car lengths away in the far right lane (the “first lane”). At the time, Byrd was providing a police presence behind the cone truck that was setting up a lane closure closing the first lane. She had flashing lights on the top and in the rear window of her vehicle. Byrd testified that Barnett’s dump truck was in the second lane at the time of the collision, which was an open lane of travel, and that it appeared that Barnett had slowed to try to get in the lane closure. She thought Barnett’s truck was going 15 miles per hour or less. Byrd did not see the Jeep until it passed her but testified that it was coming “straight on” when it hit Barnett’s truck.

Maurice Harrell was sitting in his dump truck on the right shoulder about three truck lengths ahead of Barnett’s truck at the time of the collision. According to Harrell, the Jeep was in a closed lane of travel at the time of the accident. He stated that CW Matthews’ dispatcher had advised truck drivers that “we need to enter the project... inside those two right lanes that we were working in.”

Lights from various sources illuminated the area where the collision took place, including from street lights, surrounding commercial buildings, and halogen lights mounted on construction equipment. Signs ahead of the construction site stated that one right-hand lane was closed. The lane closure began with a series of barrels tapering to the left, and an arrow board at the beginning of the taper directed motorists to move left.

Marvin Dunson, CW Matthews’ division manager for asphalt lay-down, testified that any time there is going to be a lane closure the plans will be submitted to GDOT in advance in a traffic interruption report (“TIR”). Dunson also stated that GDOT’s policy was that CW Matthews could not close down more lanes than specified in the TIR but could decide to close fewer. If CW Matthews changed the lane closure plan, it would notify GDOT. Dunson stated that CW Matthews initially planned to close the right shoulder and two right-hand lanes because he was uncertain if the planned work would extend into the first lane. When he realized it would not, he decided to close one lane. According to Dunson, truck drivers were instructed that once they passed the taper and all of the equipment with flashing lights, they could enter the project where they felt safe to do so. Rob Lovett, CW Matthews’ project night superintendent for traffic control, testified that he may release traffic once the lane closure extends past the paving equipment. Prior to the collision, he released traffic before all of the panels closing the first lane were in place.

Dunson testified that after he was notified of the accident, he drove past the lane closure to get to the scene and saw that only one lane was closed. When he got to the accident scene and noticed that the Jeep was in a live lane of traffic, he took some panels and moved them to incorporate that lane into the lane closure. The first responders also started moving panels around. Dunson testified that at some point the lane closure was extended to allow the paving crew to finish its work and remove the equipment while the accident investigation was going on. Dunson admitted, however, that a photograph Lovett took minutes after the accident showed a line of panels closing two lanes south of the accident past the 10th Street Bridge. Dunson could not say who would have moved those panels.

Herman Hill, Appellees’ engineering expert, testified that because of the limited work space at the construction site and various factors affecting the visibility of work trucks in the roadway, a double lane closure was needed to allow trucks to access the work site more easily; that to the extent a single lane was closed, there should have been a sign warning motorists that trucks would be entering or leaving the work site, a larger opening for trucks to enter the work site, and a reduced speed limit; and that CW Matthews failed to adequately instruct truck drivers on how to safely enter the work site and did not properly communicate its lane closure plans. The opinions of Appel-lees’ other experts are discussed in Division 1.

Case No. A14A1487

1. CW Matthews argues that the trial court abused its discretion in denying its motions to exclude the expert testimony of Appellees’ human factors expert, Ruston Hunt, and their accident reconstruction expert, Jeffrey Kidd. “The question of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.” (Punctuation and footnote omitted.) Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857, 860 (2) (686 SE2d 455) (2009). OCGA § 24-7-702 (b) provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

We conclude that the trial court did not abuse its discretion except in declining to exclude Hunt’s testimony that the signs in advance of the work site were inadequate. Accordingly, its order on the motion to exclude Hunt’s testimony is vacated and remanded with direction that the trial court enter an order consistent with this opinion.

(a) Ruston Hunt. Hunt has a bachelor of science and master’s degree in industrial engineering and a Ph.D. in mechanical engineering. He is dean of the Southern Polytechnic State University Extended University and has taught courses in human factors engineering for over ten years. He has provided human factors consulting services since 1980 and has authored numerous articles on human factors engineering.

Hunt testified in his deposition that, in his opinion, Barnett’s slow-moving dump truck in an open lane of traffic presented an unexpected hazard to a motorist like Owens. He identified factors that would have made it difficult for Owens to perceive and react to Barnett’s truck, namely, the many light sources that created “visual clutter,” and the configuration of the dump truck’s brake lights. Hunt also opined that the signs ahead of the work site were “inadequate.”

Hunt has considerable credentials with respect to the research, study and application of human factors engineering, and the trial court was authorized to conclude that he is qualified to render opinions with respect to issues such as driver expectation and Owens’ ability to perceive Barnett’s dump truck. See Ahuja v. Cumberland Mall, LLC, 821 FSupp.2d 1317, 1322 (N.D. Ga. 2011) (Hunt qualified in slip and fall case to opine on how reasonable mall patron would perceive site of accident).

We disagree with CW Matthews that the trial court was required to conclude that Hunt’s opinions on those issues are unreliable.

Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training. There are many different kinds of experts and many different kinds of expertise, and it follows that the test of reliability is a flexible one.

(Citations and punctuation omitted.) HNTB Georgia v. Hamilton-King, 287 Ga. 641, 642-643 (1) (697 SE2d 770) (2010). Hunt’s human factors theories have been subject to publishing and peer review. See Ahuja, supra, 821 FSupp.2d at 1323. Hunt has extensive experience in the application of human factors theories, and although he has primarily appeared as an expert witness in product liability cases, he has applied his knowledge in premises liability cases involving visibility and perception issues and in several automobile collision cases. Hunt’s opinions related to driver expectations and factors affecting Owens’ ability to see and perceive Barnett’s dump truck are based on his knowledge and experience and his review of materials including photographs and depositions. Contrary to CW Matthews’ argument, they are not purely speculative. No one will ever know precisely what Owens saw or did just before the collision, but that in and of itself does not mean Hunt’s opinions are without foundation. We have held that “[t]he appropriate standard for assessing the admissibility of the opinion of the expert is not whether it is speculative or conjectural to some degree, but whether it is wholly so.” Savannah Cemetery Group v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 213 (3) (704 SE2d 858) (2010). Even if the trial court might have exercised its discretion differently, we cannot say that it abused its discretion by declining to exclude Hunt’s opinions on driver expectations and factors affecting Owens’ ability to see and perceive the dump truck.

We conclude, however, that the trial court abused its discretion in declining to exclude Hunt’s opinion that the signs posted ahead of the construction site were “inadequate.” This is in effect an opinion that CW Matthews breached an applicable standard of care. Hunt conceded in his deposition that he was not aware of the generally accepted standards governing traffic control on an interstate and does not hold himself out as an expert in traffic control. See HNTB Georgia, supra, 287 Ga. at 644-646 (expert opinion on standard of care properly excluded when its only foundation was inapplicable experience).

(b) Jeffrey Kidd. Kidd was a charter member of the Georgia State Patrol’s Specialized Collision Reconstruction Team in 1997 and over the next ten years aided in the reconstruction of over 1,500 fatal collisions. He has been involved in the investigation or reconstruction of over 3,000 vehicle collisions in his career. He testified that in his opinion Owens was not asleep at the time of the collision. Kidd also opined that the speed of Barnett’s truck combined with other factors created a conspicuity issue. He further testified that the brake lights on Barnett’s truck were optically connected with the flashers such that no separate brake lights came on if the brakes were applied while the flashers were on and that this would have made it more difficult to discern that Barnett was slowing down.

CW Matthews does not dispute Kidd’s qualifications as an accident reconstruction expert but contests the reliability of Kidd’s opinions on the ground that Kidd did not actually perform an accident reconstruction. Kidd testified that he holds himself out as an expert in accident reconstruction, “which encompasses a great deal or [sic] different areas,” including considering issues related to “conspicuity.” Kidd did not testify that any of his opinions are based on what a complete accident reconstruction might show in this case; rather, his opinions relate only to particular aspects of the collision.

With respect to his opinion that Owens was not asleep at the time of the collision, Kidd testified that in his opinion Owens would not have been able to negotiate the topography prior to the collision if he were asleep, as there was a curve to the left, to the right, and then back to the left. He also relied on the CDR report and opined that Owens could not have maintained a constant speed and throttle position if he were asleep. Based on the data in the CDR report, he also concluded that the collision was essentially an in-line collision with an angle of impact of approximately six degrees and stated that the in-line nature of the collision supported his opinion that Owens was not asleep. In reaching his opinion, Kidd also drew on his experience in investigating accidents involving drivers who had fallen asleep. Kidd’s opinions were based on an application of his knowledge and experience to objective facts and data, and his conclusions could be tested. The trial court did not abuse its discretion in denying the motion to exclude as to the opinion that Owens was not sleeping at the time of the collision.

Regarding Kidd’s other opinions, CW Matthews raises various criticisms, including that Kidd did not actually inspect the truck or conduct a line of sight analysis. The record reflects that Kidd received and reviewed evidence and materials related to this case, including photographs of the accident scene and Barnett’s dump truck. He also reviewed videos showing how the dump truck’s lights functioned. As the trial court could have found that Kidd reliably applied his experience in accident reconstruction and investigation to reach conclusions about factors that may have impeded Owens’ ability to see or respond to the dump truck, we find no manifest abuse of discretion in the trial court’s refusal to exclude his opinions.

2. CW Matthews argues that the trial court erred in failing to grant its summary judgment motion as to all of Appellees’ claims because undisputed record evidence establishes that Owens’ own negligent, reckless and unlawful conduct was the sole proximate cause of Appellees’ injuries. We cannot agree.

“Negligence is not actionable unless it is the proximate cause of the injury.” (Citation and punctuation omitted.) Johnson v. American Nat. Red Cross, 276 Ga. 270, 273 (1) (578 SE2d 106) (2003). CW Matthews asserts repeatedly that Owens’ negligent and unlawful driving was an intervening cause of Appellees’ injuries that shields it from liability because CW Matthews did not cause Owens to drive the way he did or to violate the rules of the road. This argument reflects an incomplete understanding of the law of proximate causation.

Proximate cause is “that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred.” (Citation and punctuation omitted.) Reed v. Carolina Cas. Ins. Co., 327 Ga. App. 130, 132 (2) (762 SE2d 90) (2014). “The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.” Delta Airlines v. Townsend, 279 Ga. 511, 515 (1) (614 SE2d 745) (2005). With regard to intervening acts, our Supreme Court has explained:

[T]he general rule is that if, subsequently to an original wrongful act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act. . . was such that its probable or natural consequences could reasonably have been . . . foreseen by the original wrong-doer, the causal connection is not broken.

(Citation and punctuation omitted.) Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002).

While it is true that if the act of the original wrong-doer should set in motion other causal forces such as would naturally produce the injury, he may be held liable although his own negligence was not the immediate cause of the injury, this is only one theory of liability, because, even where there is no such setting in motion, the original wrong-doer may still be held liable, if the intervening agency could reasonably have been anticipated or foreseen by him.

(Emphasis supplied.) Williams v. Grier, 196 Ga. 327, 337 (2) (26 SE2d 698) (1943); see also Stern v. Wyatt, 140 Ga. App. 704, 705 (1) (231 SE2d 519) (1976). The latter rule applies even with respect to an intervening criminal act or act of negligence. Williams, supra, 196 Ga. at 338 (2); Smith v. Commercial Transp., 220 Ga. App. 866, 867 (1) (470 SE2d 446) (1996). It is also well settled under Georgia law that “the proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently.” Hayes v. Crawford, 317 Ga. App. 75, 78 (730 SE2d 26) (2012). The issue presented in this case is not whether CW Matthews caused Owens’ manner of driving but whether CW Matthews could have anticipated Owens’ driving and the ensuing collision such that CW Matthews’ alleged negligence may constitute at least one proximate cause of the Appellees’ injuries.

In conducting the foreseeability analysis, “the relevant inquiry is not whether the exact intervening negligent act was foreseeable, but whether, as a general matter, the original negligent actor should have anticipated that this general type of harm might result.” Smith, supra, 220 Ga. App. at 867 (1). We cannot say that it was unforeseeable as a matter of law that a vehicle, including one that was speeding or proceeding with less than due care, might collide with a dump truck proceeding well below the speed limit on the interstate in the early morning darkness. While CW Matthews argues that there was no reason for Owens to move into the second lane next to the work area, that lane was open, it was not unlawful to drive in it, and a driver who, for example, was planning to exit might choose to do so. Given the conflicts in the evidence, issues relating to Owens’ degree of fault, such as the extent to which the lighting present would have aided or hindered Owens in recognizing and responding to the dump truck and whether Owens was even conscious and in control of his vehicle at the time of the collision must be resolved by the finder of fact.

“[Q]uestions of negligence and diligence and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff’s injuries are, except in plain, palpable and indisputable cases, solely for the jury.” (Citations and punctuation omitted.) Hayes, supra, 317 Ga. App. at 79. While it is certainly possible that a jury may conclude that Owens should shoulder all of the blame for the collision at issue, we cannot agree that no issue of material fact exists in this regard.

3. Relying on Fraker v. C. W. Matthews Contracting Co., 272 Ga. App. 807 (614 SE2d 94) (2005) and Hubbard v. Dept. of Transp., 256 Ga. App. 342 (568 SE2d 559) (2002), among other precedent, and the nonnegligent government contractor defense, CW Matthews argues on appeal that it is entitled to summary judgment with respect to any claims that the traffic control plan was negligently designed in that it caused trucks to slow to an unreasonably slow speed in an open travel lane. While CW Matthews raised the nonnegligent government contractor defense in its motion for summary judgment, it argued only that the defense entitled it to summary judgment to the extent that Appellees alleged CW Matthews was negligent in failing to post a sign in advance of the work area stating that trucks were entering and exiting the highway. CW Matthews did not argue that its defense extended to claims relating to aspects of the traffic control plan that may have affected the speed of work trucks attempting to enter the work site. “Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken.” (Punctuation and footnote omitted.) Crippen v. Outback Steakhouse Intl., 321 Ga. App. 167, 170 (1) (741 SE2d 280) (2013).

Case No. A14A1486

4. GDOT argues that the trial court erred in denying its motion for summary judgment on the basis of sovereign immunity. We agree in part.

“We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” (Citation and punctuation omitted.) Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 509 (3) (672 SE2d 471) (2009).

Under the state constitution, “sovereign immunity insulates the state and its departments and agencies from liability except to the extent that the legislature enacts a specific waiver.” Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 (1) (666 SE2d 383) (2008); Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). Pursuant to the Georgia Tort Claims Act (“GTCA”), the General Assembly has waived the State’s immunity “for the torts of state officers and employees while acting within the scope of their official duties or employment... [but] only to the extent and in the manner provided in [the GTCA].” OCGA § 50-21-23 (a), (b). A “state officer or employee” under the GTCA does not include an “independent contractor doing business with the state.” OCGA § 50-21-22 (7). In addition, the GTCAincludes the following exceptions, among others, to the waiver of immunity:

(8) Inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety;
(9) Licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization; [or]
(10) The plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design [.]

OCGA § 50-21-24.

Traffic control is governed by Section 150 of the contract between GDOT and CW Matthews, which states: “This section as supplemented by the Plans, Specifications, and Manual on Uniform Traffic Control Devices (MUTCD) shall be considered the Traffic Control Plan.” Specification 9106 provided detailed standards for setting up traffic control for single and double lane closures. Hill, Appellees’ engineering expert, testified: “I think MUTCD is easily recognized as industry standard. I think in Georgia, Georgia standard 9106 is easily accepted as an industry standard. I think section 150 of . . . every DOT contract that I know of... is an industry standard as far as how you handle traffic control.” As articulated by Hill, Appellees’ negligence claims relate not to any fault in the general traffic control plan and standards to be applied to the 14th Street Bridge project but to the failure to make appropriate modifications to them with respect to the particular paving work taking place at the time of the collision. He stated for example that MUTCD “brings in the idea that there is an assessment that’s required in order to apply” the manual’s standards and that with respect to MUTCD and Standard 9106, “there’s always going to be some type situations that just need to be adjusted.” He testified further that “the MUTCD as well as 9106 ... it’s not just a recipe----[B] ecause of road configurations many times you’re going to have to make adjustments.”

GDOT maintains that in light of Hill’s testimony and the design/ plan exception in OCGA § 50-21-24 (10) of the GTCA, it cannot be liable for furnishing the basic traffic control plan to CW Matthews. GDOT further argues that it cannot be liable for any alleged failure to make appropriate site-specific modifications to the basic plan or any alleged negligence in implementing traffic control at the construction site because it permissibly delegated those responsibilities to an independent contractor and its role with regard to these activities was limited to approving CW Matthews’ plans and inspecting CW Matthews’ work for contract compliance purposes. GDOT maintains that it is entitled to immunity for its approval and inspection activities pursuant to the inspection powers or functions exception in OCGA § 50-21-24 (8) and the licensing powers or functions exception in OCGA § 50-21-24 (9).

Section 150 supports GDOT’s characterization of its traffic control responsibilities. Regarding responsibility for implementing traffic control plans, Section 150 (A) provides:

The Contractor shall designate a qualified individual as the Worksite Traffic Control Supervisor (WTCS) who shall be responsible for selecting, installing and maintaining all traffic control devices in accordance with the Plans, Specifications, Special Provisions and the MUTCD— The WTCS shall be available on a full-time basis to maintain traffic control devices. . . . The WTCS shall regularly perform inspections to ensure that traffic control is maintained.

GDOT’s rights to inspect on-site traffic control activities are reflected in the same subsection as follows: “[t]he [GDOT Project] Engineer will periodically review the work for compliance with the requirements of the traffic control plan.” Section 150.01 (G) indicates that GDOT’s role regarding modifications to the basic traffic control requirements to meet the conditions of a specific site is confined to approving such modifications. That subsection states:

Any Sequence of Operations provided in this Contract in conjunction with any staging details which may be shown in the plans, is a suggested sequence for performing the Work.... The Contractor shall develop detailed staging and traffic control plans for performing specific areas of the Work including but not limited to all traffic shifts, detours, bridge widenings, paces, or other activities that disrupt traffic flow. The Engineer may require detailed staging and traffic control plans for lane closures. These plans shall be submitted for approval at least two weeks prior to the scheduled date of activity.

(Emphasis supplied.) It further states:

The Contractor shall secure the Engineer’s approval of the Contractor’s proposed plan of operation, sequence of work and methods of providing for the safe passage of vehicular and pedestrian traffic before it is placed in operation. The proposed plan of operation shall supplement the approved traffic control plan. Any major changes to the approved traffic control plan, proposed by the Contractor, shall be submitted to the Department for approval.
Some additional traffic control details will be required prior to any major shifts or changes in traffic. The traffic control details shall include, but not be limited to, the following: ... 2. The location, size, and message of all signs required by the MUTCD, Plan, Special Provisions, and other signs as required to fit conditions.

(Emphasis supplied.)

While Section 150 places responsibility on CW Matthews in the first instance to modify the traffic control standards to fit conditions, there is some testimony indicating that the relationship functioned otherwise in practice. For example, while she gave various and sometimes conflicting responses when questioned on this issue, the GDOT project manager testified that if anyone had responsibility to assess what traffic control measures were needed for a particular aspect of the project, it was GDOT’s project engineer. Jeff Duncan, CW Matthews’ general superintendent, testified that when implementing a lane closure, CW Matthews will put up signs per the standard plan and “if we’re approached by the DOT to add something else we will discuss it at that point. But we do not arbitrarily make those decisions ourselves.”

We now examine the relevant exceptions to the waiver of sovereign immunity in the GTCA in view of the contract provisions and testimony discussed above.

(a) Design/plan exception. The record supports GDOT’s argument that it cannot be liable simply for furnishing the basic traffic control plan reflected in Section 150 of the contract, as Appellees’ own expert conceded that it represented the industry standard. Given that there is at least some evidence in the record that GDOT exercised responsibility for proposing rather than merely approving site-specific modifications, we cannot conclude that the trial court erred in denying GDOT’s motion to dismiss on claims relating to an alleged duty to modify the basic traffic control plan. Compare Comanche Constr., Inc. of Ga. v. Dept. of Transp., 272 Ga. App. 766, 768 (2) (613 SE2d 158) (2005) (record belied plaintiff’s allegation that GDOT assisted in designing traffic control plan) (physical precedent).

(b) Licensing powers/functions exception. Contrary to CW Matthews’ argument, this exception, by its plain terms, is not strictly limited to decisions related to permits or licenses. Instead, it also applies as to decisions relating to issuance, denial, suspension, or revocation of approvals. We recently held in Dept. of Transp. v. Kovalcik, 328 Ga. App. 185 (761 SE2d 584) (2014), that OCGA § 50-21-24 (9) shielded GDOT from liability for alleged negligence in its pre-construction approval of plans for a roadway improvement project. Id. at 189-191 (1) (b). We reach a similar result here regarding any claim based on GDOT’s alleged negligence in approving a site-specific traffic control plan that was in effect on the date of the collision, and we reverse the trial court’s order on GDOT’s motion to dismiss to the extent that it failed to grant the motion as to this issue. See also Reidling v. City of Gainesville, 280 Ga. App. 698, 701 (1) (634 SE2d 862) (2006) (under OCGA § 50-21-24 (9), GDOT was immune from liability for involvement in approving disposal site for excess fill soil generated during parkway construction project); Dept. of Transp. v. Cox, 246 Ga. App. 221, 224 (540 SE2d 218) (2000) (under OCGA § 50-21-24 (9), GDOT was immune from liability based on issuing permit to build a commercial driveway and delay in issuing permit for installation of a traffic signal).

(c) Inspection powers/functions exception. The inspection powers/ functions exception applies to a state officer or employee’s alleged inadequate or negligent inspection of any property “other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.” (Emphasis supplied.) OCGA § 50-21-24 (8). Appellees argue that because the interstate where construction was taking place was state property, the inspection powers/functions exception cannot apply. We disagree based on Dept. of Transp. v. Jarvie, 329 Ga. App. 681 (766 SE2d 94) (2014), in which we held that GDOT was immune from liability under the inspection powers/functions exception for liability associated with monitoring compliance with conditions of GDOT’s approval of a contractor’s request to stockpile aggregate rock in the median in connection with a road-widening project on the interstate. One such condition was submitting a traffic control plan with respect to the stockpile area. Id. at 681. We held that the GDOT’s monitoring activity

Decided November 21, 2014.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, G. Michael Banick, Kirsten S. Daughdril, Senior Assistant Attorneys General, Sharon P. Horne, Assistant Attorney General, for appellant (case no. A14A1486).

Barnes Law Group, Roy E. Barnes, John F. Salter, Allison B. Salter, for appellant (case no. A14A1487).

Mark E. Murray, Weinberg, Wheeler, Hudgins, Gunn & Dial, Patrick B. Moore, Shubhra R. Mashelkar, for appellees.

amounts to oversight of construction activities for purposes of administering the contract, and it does not amount to an inspection of State property for regulatory compliance or safety hazards as contemplated by the language of OCGA § 50-21-24 (8). Absent a clear legislative directive, we decline to extend the waiver of sovereign immunity to include independent contractors’ conduct even if a State actor in some way attempts to ensure that contractors are operating safely on a State-approved project.

(Footnote omitted.) Jarvie, supra, 329 Ga. App. at 684. As this analysis squarely applies here, we conclude that the trial court erred in failing to grant GDOT’s motion with respect to claims related to GDOT’s on-site inspection of CW Matthews’ implementation of traffic control plans.

5. With respect to GDOT’s appeal of the orders denying the motions to exclude the expert testimony of Hunt and Kidd, we reach the same conclusion as in Division 1 above.

Judgment affirmed in part, reversed in part, and vacated in part in Case No. A14A1486. Judgment affirmed in part and vacated in part in Case No. A14A1487.

McFadden and Ray, JJ., concur.

       The trial court granted summary judgment in CW Matthews’ favor on the Owens’ estate’s claim for pain and suffering.

       The 14th Street Bridge project was a multi-year project encompassing more than the repaving work at issue in this case.

       We express no opinion here as to whether the evidence in this case supports a conclusion that CW Matthews breached a duty of due care.

       The cases upon which CW Matthews relies involve collisions occurring under much different circumstances than those presented here. See, e.g., Ferrell v. United, Water Svcs. Unlimited Atlanta, 271 Ga. App. 887, 887-888 (611 SE2d 126) (2005) (it was undisputed that truck driver ran into parked van on a clear day with excellent visibility and the truck driver, who was under the influence of cocaine and morphine, admitted that he saw the van and attempted to brake but stepped on the gas pedal instead); Watson v. Marshall, 212 Ga. App. 206, 207 (1) (441 SE2d 427) (1994) (motorist exited one interstate in dense fog and then, without confirming where she was going, turned the wrong way onto another interstate).

       In its summary judgment briefing below, CW Matthews concluded its argument on the nonnegligent government contractor defense with the following statement: “Based on the record presented in this case [CW Matthews] is entitled to summary judgment on Plaintiffs’ claim that [CW Matthews] is liable for failure to adequately warn of trucks exiting and entering the lane closure and any other similar theory of negligence regarding highway traffic control design.” We do not think this vague reference to other similar claims was sufficient to alert the trial court that it should consider CW Matthews’ new and broader argument and any new or different evidence upon which it may depend.

       We also note that while Section 150 and Standard 9106 are in the record, the entire contract between CW Matthews and GDOT is not.

       We express no opinion on how conflicts in the evidence regarding GDOT’s design role should be resolved.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A0874.
    DEL LAGO VENTURES, INC. v. QUIKTRIP CORPORATION.
    (764 SE2d 595)
   Miller, Judge.

Ofer Bar Lev and Kofer Properties, Inc. (collectively “the Sellers”) and QuikTrip Corporation (“QuikTrip”) entered into a real estate purchase agreement for a piece of land in Cobb County. QuikTrip wanted to purchase the property in order to build a gas station there. Thereafter, the Sellers entered into a “backup contract” to sell the same property to Del Lago Ventures, Inc. (“Del Lago”), a subsidiary of QuikTrip’s competitor, RaceTrac Petroleum, Inc. After the Sellers sold the property to QuikTrip, Del Lago sued the Sellers and QuikTrip for specific performance, breach of contract, injunctive and declaratory relief, and attorney fees, asserting that the contract between the Sellers and QuikTrip had terminated, giving effect to the backup contract between the Sellers and Del Lago. QuikTrip counterclaimed for declaratory judgment, defamation of title, and attorney fees.

QuikTrip filed a motion for summary judgment, and Del Lago filed a cross-motion for partial summary judgment. The trial court denied Del Lago’s motion for summary judgment and awarded summary judgment to QuikTrip on all claims asserted by Del Lago. The trial court also declared QuikTrip the owner of the property.

Del Lago appeals the trial court’s grant of summary judgment to QuikTrip, contending that genuine issues of material fact remain as to whether QuikTrip terminated its contract with the Sellers and whether forged signatures invalidated the QuikTrip contract. For the reasons that follow, we affirm in part and reverse in part.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the record shows that QuikTrip was interested in buying several adjoining parcels of land located at the corner of Windy Hill and Austell Roads, some of which were owned by Bar Lev individually and some of which were owned by Kofer Properties. Bar Lev is the sole owner of Kofer Properties. On January 11, 2010, Bar Lev entered into a real estate contract with QuikTrip. The contract provided for a 270-day inspection period, beginning on the effective date of the contract, and for closing to take place within 15 days after the expiration of the inspection period.

The termination provision of the contract between Bar Lev and QuikTrip stated:

In the event [QuikTrip] determines in its sole and absolute discretion that the Property is not suitable for [QuikTrip’s] intended use within the Inspection Period, [QuikTrip] may elect to terminate this Contract by written notice to [the Sellers] and Escrow Agent. If this Contract is terminated . . . neither party shall have any further obligations hereunder.

Upon termination, the escrow agent was required to immediately release $100 to the Sellers and the balance of the earnest money deposit to QuikTrip.

In February 2010, QuikTrip and Bar Lev amended the original contract to add Kofer Properties as a seller and reset the effective date of the contract — from which the inspection period would begin to run — to the date of the amendment. In November 2010, QuikTrip and the Sellers entered into a second amendment to the contract and again altered the effective date.

On July 22, 2011, the Sellers entered into a contract to sell the same property to Del Lago in case the deal with QuikTrip fell through. The Del Lago contract provided:

[Del Lago] agrees and acknowledges that a third party has contracted to purchase the Contract Property (or portions thereof) from [the Sellers] and that, unless and until [the Sellers] (or such third party) terminates such existing contract in accordance with its terms, (i) this Contract shall not be effective and (ii) neither party shall have any obligations hereunder. Automatically and immediately upon any such termination of the existing contract, this Contract shall be in full force and effect and binding .... Without limiting the foregoing, in the event such third party acquires the Contract Property pursuant to the terms of its contract, this Contract shall be null, void, and of no further force and effect. It is the intent of [the Sellers] and [Del Lago] that this Contract constitutes a “backup contract” to be effective if and only if the third party purchaser fails to purchase the Contract Property in accordance with the terms of its contract with [the Sellers].

On August 8, 2011, near the end of the 270-day inspection period, Bar Lev met with Chad Trotter, a real estate manager with QuikTrip, at Bar Lev’s office. Trotter, whom Bar Lev believed had the authority to bind QuikTrip, wanted to again extend the effective date on the contract, and Bar Lev indicated that he could only agree to an extension if QuikTrip increased the purchase price.

Trotter threatened to terminate the contract if Bar Lev would not agree to extend the effective date and showed Bar Lev a termination letter that he had drafted on behalf of QuikTrip. Trotter deposed that he planned to use the letter as a negotiating tactic. The letter indicated that Trotter had copied, via e-mail, various people at QuikTrip and the escrow agent, although Trotter deposed that he had not sent a copy of the letter to the escrow agent. Michael Schaff, the Sellers’ escrow agent, never received written notice of termination, and never dispersed any of the earnest money.

Trotter left the termination letter in Bar Lev’s office, but later called Bar Lev and said that he did not have the authority to terminate the contract and the contract was not terminated. Generally, QuikTrip’s real estate director, Craig Williams, had to approve contract terminations. When Williams learned of the termination letter, he told Trotter to retrieve the letter, and Trotter resigned from QuikTrip.

On the evening of August 8, Bar Lev contacted Meredith Mc-Elveen, a real estate representative with Del Lago, and told her that Trotter had left a letter terminating the QuikTrip contract on Bar Lev’s desk. McElveen understood this to mean that the QuikTrip contract was terminated, and Bar Lev told McElveen that he would deliver the termination letter to her the next day.

On August 10, Del Lago recorded a “Memorandum of Contract” in Cobb County, asserting that the backup contract became effective on August 8, upon termination of the QuikTrip contract. On August 9, 2011, QuikTrip and the Sellers entered into a third amendment, increasing the purchase price and setting a closing date on September 21, 2011. The third amendment also provided:

Buyer and Seller agree and confirm that upon the execution of this Third Amendment (a) the termination letter Buyer provided to Seller on August 8, 2011 is null and void and (b) this Contract is and has always remained in full force and effect based upon the terms and conditions set forth in the original Contract as amended by the First, Second and Third Amendments.

QuikTrip and the Sellers subsequently entered into a fourth amendment extending the closing date to September 27, 2011. On September 27, 2011, the Sellers conveyed the property to QuikTrip. Following the sale to QuikTrip, Del Lago filed suit, leading to the instant appeal.

1. Del Lago contends that the trial court erred in granting summary judgment on its claims against QuikTrip and the Sellers because there is a genuine issue of material fact regarding whether Trotter’s delivery of the termination letter constituted substantial compliance with the termination provisions of the QuikTrip contract. We agree.

The first rule of contract construction is to determine the parties’ intent, and if the language is clear the contract shall be enforced according to its clear terms. In fact, no construction is even permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.

(Citation omitted.) Carroll v. Bd. of Regents of the Univ. System of Ga., 324 Ga. App. 598, 600 (1) (751 SE2d 421) (2013).

(a) Standing.

As an initial matter, QuikTrip contends that Del Lago lacks standing to challenge its contract with the Sellers since Del Lago was neither a party to the contract nor a third-party beneficiary as required under OCGA § 9-2-20. The trial court declined to rule on the issue of Del Lago’s standing in granting QuikTrip’s motion for summary judgment. However, since Del Lago asserted its rights to the disputed property pursuant to its own contract with the Sellers, it had standing, under OCGA § 9-4-2, to seek a declaration of its rights, if any, to the property. See Zitrin v. Ga. Composite State Bd. of Med. Examiners, 288 Ga. App. 295, 298 (2) (653 SE2d 758) (2007) (party in a position of uncertainty or insecurity has standing to seek declaratory judgment).

(b) Substantial compliance.

“The general rule in determining contract compliance is substantial compliance, not strict compliance, and this rule applies to a contract’s termination clause as well.” (Citations and punctuation omitted.) Rome Healthcare v. Peach Healthcare System, 264 Ga. App. 265, 272 (5) (590 SE2d 235) (2003).

Under the termination clause of the QuikTrip contract, QuikTrip could terminate the contract during the inspection period with written notice to the Sellers and the escrow agent, Schaff. The undisputed facts show that Trotter gave the Sellers written notice of termination on August 8, 2011, and there are questions of fact as to whether Trotter had the actual or apparent authority to terminate the contract. See OCGA § 10-6-1.

QuikTrip contends that the termination of a real estate purchase contract requires strict compliance and, as a result, the QuikTrip contract was not terminated because QuikTrip never gave the escrow agent written notice as required by the termination clause. “The cardinal rule of contract construction is to ascertain the intention of the parties.” (Footnote omitted.) Thornton v. Kumar, 240 Ga. App. 897, 898 (525 SE2d 735) (1999). Here, the QuikTrip contract clearly provided that QuikTrip could terminate the contract by giving written notice to both the Sellers and the escrow agent. Nevertheless, substantial compliance is the general rule. Rome Healthcare, supra, 264 Ga. at 272 (5). Strict compliance is the exception, applying to “cases [concerning] termination notices that [result] in forfeiture of real property rights under a lease or easement, or revocation of a surety.” DI Uniform Svcs. v. United Water Unlimited Atlanta, 254 Ga. App. 317, 323 (2) (562 SE2d 260) (2002). None of these circumstances are present here, as termination of the contract would not have resulted in the forfeiture of real property rights under a lease or easement or the revocation of a surety.

The fact that this Court has, in other cases, determined that one party’s attempt to terminate a real estate purchase agreement was ineffective does not transform the substantial compliance requirement into one of strict compliance. See, e.g., Thornton, supra, 240 Ga. App. at 899 (termination ineffective where notice not sent to one seller and notice sent to another seller at wrong address). Moreover, substantial compliance with notice provisions may suffice as long as the relevant information is communicated. Wallick v. Period Homes, Ltd., 252 Ga. App. 197, 203 (3) (555 SE2d 863) (2001). Here, the termination letter made clear to the Sellers that QuikTrip was terminating the contract and Bar Lev relayed that information to others. Thus, viewing the facts in the light most favorable to Del Lago, there is a genuine issue of fact regarding whether Trotter’s actions constituted substantial compliance with the termination provision of the QuikTrip contract.

In so holding, we note that the subsequent amendments to the QuikTrip contract and the later sale of the property to QuikTrip on September 27, 2011, are immaterial since the Del Lago contract became effective “[automatically and immediately” upon termination of the QuikTrip contract. Accordingly, the trial court erred in granting summary judgment to QuikTrip.

2. Del Lago also contends that the trial court erred in granting summary judgment to QuikTrip because Bar Lev forged his mother’s name on the amendments to the QuikTrip contract, voiding the contract. While there is a genuine issue of material fact as to whether the QuikTrip contract was terminated, we disagree that the QuikTrip contract was voided based on the signatures to the amendments.

“Assent to the terms of a contract may be given other than by signatures.” (Citation omitted.) Cochran v. Eason, 227 Ga. 316, 318 (1) (180 SE2d 702) (1971).

The object of securing signatures of the parties to a written contract is, of course, to take it out of the Statute of Frauds and to afford mutuality so that it may be enforced. But this is not the only manner of obtaining mutuality. If one of the parties has not signed, his acceptance is inferred from a performance under the contract, in part or in full, and he becomes bound.

(Citation and punctuation omitted.) Gruber v. Wilner, 213 Ga. App. 31, 34-35 (2) (443 SE2d 673) (1994).

In 2007, Ofer Bar Lev’s mother, Lea, who lived in Israel, was an officer and agent for Kofer Properties. She died in 2010. On the first, second, and third amendments to the QuikTrip contract, Lea was listed as the chief executive officer and chief financial officer of Kofer Properties and Bar Lev was listed as the secretary. Bar Lev signed both his name, individually and as secretary of Kofer Properties, and his mother’s name, as an officer of Kofer Properties, to the first, second, and third amendments to the QuikTrip contract.

On September 9, 2011, Bar Lev took over as chief executive officer, chief financial officer and agent of Kofer Properties. On September 20, 2011, Bar Lev signed the fourth amendment to the contract both individually and on behalf of Kofer Properties. The fourth amendment ratified and confirmed the contract and the previous amendments. The undisputed facts show that the property sold was owned by either Bar Lev or Kofer Properties, which is wholly owned by Bar Lev, and Bar Lev had the authority to sign contracts for Kofer Properties.

(a) Standing.

As an initial matter, despite Del Lago’s standing to seek a declaratory judgment under OCGA § 9-4-2 based on its competing interest in the property, Del Lago does not have standing to challenge Kofer Properties’ signatures on the QuikTrip contract because Del Lago was not a party to the QuikTrip contract and, therefore, cannot attack its validity. See OCGA § 9-2-20; see also Morris v. Stillwell, 257 Ga. 3, 4 (354 SE2d 133) (1987) (although heir was entitled to challenge authority to sell real property under his mother’s will, he had no standing to challenge validity of sales contract because he was not a party thereto).

Decided October 30, 2014

Reconsideration denied November 24, 2014.

Weinberg, Wheeler, Hudgins, Gunn & Dial, David I. Matthews, Robert P. Marcovitch, Greenberg Traurig, Ernest L. Greer, Michael J. King, Andrew N. Capezzuto, for appellant.

Burr & Forman, John O’Shea Sullivan, Bret A. Beldt, for appel-lee.

(b) Ratification.

Moreover, despite the genuine issue of material fact as to whether QuikTrip terminated its contract, Kofer Properties ratified the Quik-Trip contract and its prior amendments when Bar Lev signed the fourth amendment. See Hendrix v. First Nat. Bank of Savannah, 195 Ga. App. 510, 511 (1) (394 SE2d 134) (1990) (principal ratifies any unauthorized act by accepting and retaining the benefits of the act with full knowledge of the facts); see also OCGA §§ 10-6-51; 10-6-52. Under these facts, where Kofer Properties clearly assented to the contract, any irregularities in the signatures are irrelevant.

In sum, we reverse the trial court’s grant of summary judgment to QuikTrip because there is a genuine issue of material fact as to whether Trotter’s delivery of the termination letter constituted substantial compliance with the termination provisions of the QuikTrip contract; however we affirm the trial court’s holding that the Quik-Trip contract was not voided due to forgery.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Dillard, J., concur.

       Del Lago does not appeal the trial court’s denial of its motion for partial summary judgment.


author: McMlLLIAN, Judge.

text:
    A14A1003.
    GEORGIA PEACE OFFICER STANDARDS AND TRAINING COUNCIL v. HODGES.
    (767 SE2d 286)
   McMlLLIAN, Judge.

Appellant Georgia Peace Officer Standards and Training Council (“P.O.S.T.” or “Council”) is appealing a superior court order, which reversed P.O.S.T.’s denial of appellee Julian B. Hodges Ill’s petition for reinstatement of his certification as a peace officer, and also affirmatively granted Hodges’ reinstatement as a peace officer. Because the superior court granted the petition on grounds not raised before the agency, we reverse and remand this case for further proceedings as more fully set forth below.

The record shows that on December 5, 2012, Hodges voluntarily surrendered his peace officer certification, effective January 2011, amidst allegations, among others, that he had written numerous bad checks, that he had failed to notify the appropriate agency that warrants for his arrest had been issued in connection with the bad checks, and that he had been untruthful during the investigation of these matters. Hodges did not and does not contest the revocation of his P.O.S.T. certification.

Three months after Hodges executed the voluntary surrender, in March 2013, Hodges requested in writing to have his P.O.S.T. certification reinstated pursuant to Ga. Comp. R. & Regs., r. 464-18-.01 (l). Upon review, the P.O.S.T. staff recommended that the certification committee review Hodges’ request, and the record reflects that Hodges appeared before the certification committee on April 17, 2013. Following a full hearing at which Hodges was allowed to present his case before the committee, the certification committee voted to recommend that Hodges’ request be denied.

A hearing on Hodges’ reinstatement request was scheduled before the full Council on June 5, 2013. However, shortly before the hearing, Hodges’ newly retained counsel filed a request for continuance, citing the fact that he had not yet had time to prepare for the hearing and that he had a jury trial scheduled. At the June 5, 2013 meeting, the P.O.S.T. executive committee voted to recommend to the full Council that Hodges’ request for a continuance be denied. On the same day, the full Council voted to accept that recommendation and denied Hodges’ request for a continuance. Further, also at its June 5, 2013 meeting, the Council accepted the recommendation of the certification committee and denied Hodges’ request for reinstatement of his certification.

Hodges then filed a petition for judicial review in the Superior Court of Bulloch County. Hodges sought review under OCGA § 35-8-7.2 (b)

on the grounds that the action taken by ... P.O.S.T. regarding Petitioner’s Request for Reinstatement of Certification is clearly erroneous and arbitrary in view of the reliable, probative, and substantial evidence presented by Petitioner. Further, the action taken by Respondent P.O.S.T. in this matter constitutes a clearly unwarranted exercise and abuse of discretion.

A certified copy of the record consisting of approximately 53 pages from the administrative proceedings was transmitted to the clerk of the superior court on July 25, 2013, and the superior court scheduled a hearing on Hodges’ petition for October 15, 2013.

On October 7, 2013, P.O.S.T.’s attorney sent additional documents to the superior court, without seeking permission to do so, in an attempt to supplement the certified record that had been previously transmitted. It appears that the attempted supplementation was spurred by queries by Hodges’ counsel as to whether the record was complete, and it appears that the attempted supplementation consisted of both additional documents and audio recordings of P.O.S.T. meetings.

Upon the attempted supplementation by the Council’s attorney, Hodges’ counsel e-mailed the superior court judge to request a continuance to review the documents, and P.O.S.T.’s attorney responded that she did not object to the continuance. However, as found by the trial court, “[t]he Court . . . never granted any continuance, never removed the hearing from the calendar and never notified either party that their presence at the October 15, 2013 hearing was excused.”

At the scheduled hearing, P.O.S.T.’s attorney failed to appear and Hodges’ counsel withdrew his request for a continuance, instead objecting to the supplementation of the record and arguing that the relevant statute, OCGA § 50-13-19 (e), required P.O.S.T. to request permission from the court to supplement the record. The superior court granted Hodges’ request that P.O.S.T. not be allowed to supplement the record, and upon motion by Hodges’ counsel to “grant our petition since she’s not here,” the superior court also orally granted Hodges’ petition for judicial review and asked Hodges’ counsel to prepare the order.

The superior court subsequently entered a written order striking the additional portions of the record P.O.S.T. submitted without permission. Further, the superior court granted Hodges’ petition, reversed P.O.S.T.’s decision to deny Hodges’ application for recertifi-cation, and ordered that Hodges’ peace officer certification be reinstated under the authority given by OCGA § 35-8-7.2. In so ruling, the superior court found “that Mr. Hodges’ rights have been prejudiced because the decision made by [the Council] was made upon unlawful procedure and in violation of statutory provisions as gov-ernedbyOCGA § 50-13-19.”Specifically, thecourtfoundthatP.O.S.T. had failed to follow various provisions of the Administrative Procedure Act, OCGA § 50-13-1 et seq., including

failure to provide proper formal notice in accordance with OCGA § 50-13-13 (a) (1) and (2); denial of Petitioner’s right to counsel and right to respond and present evidence on all issues involved in a contested case in violation of OCGA § 50-13-13 (a) (3); failure to keep a proper record of the proceedings below in violation of OCGA § 50-13-13 (a) (8); and failure to issue a proper final decision in accordance with OCGA § 50-13-17 (b) or 50-13-13 (a) (9).

P.O.S.T. now appeals, arguing, among other things, that the trial court erred by reversing the P.O.S.T. ruling based on alleged procedural violations because Hodges never challenged the P.O.S.T. decision on any of the grounds cited in the trial court’s order. We agree. The Georgia Peace Officer Standards and Training Act, OCGA § 35-8-1 et seq., establishes the Georgia Peace Officer Standards and Training Council and outlines the functions and powers of the Council, including the issuance of peace officer certifications. Specifically, OCGA § 35-8-7.2 (a) provides:

Except as otherwise provided in subsection (b) of this Code section, proceedings of the council in the exercise of its authority to issue any certificate or discipline any peace officer under the terms of this chapter shall be conducted in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act. . . .”

Subsection (b), in turn, governs proceedings for review of a final decision of the Council and provides that the petition is to be filed within 30 days after service of the final decision and in the superior court of the county of residence of the petitioner.

OCGA § 50-13-19 governs the judicial review of contested cases in state agencies. OCGA § 50-13-19 (c) provides:

Irrespective of any provisions of statute or agency rule with respect to motions for rehearing or reconsideration after a final agency decision or order, the filing of such a motion shall not be a prerequisite to the filing of any action for judicial review or relief; provided, however, that no objection to any order or decision of any agency shall be considered by the court upon petition for review unless such objection has been urged before the agency.

Based on our review of the record, we cannot find any instance in which Hodges objected to procedural irregularities during the P.O.S.T. proceedings. Further, he did not raise any issue concerning any alleged improprieties in his petition for judicial review, instead seeking a reversal based on alleged evidentiary insufficiencies and contentions that P.O.S.T. abused its discretion. Moreover, although Hodges’ attorney mentioned that there may have been certain “statutory violations” at the October 15, 2013 hearing, he did not elaborate or point to any statute or specific violation. Indeed, as P.O.S.T. points out, the first mention of any specific procedural error was in the superior court’s order, which was prepared by Hodges’ counsel.

Hodges argues, however, that OCGA § 35-8-7.2 does not require an aggrieved party to first seek a rehearing or move for reconsideration prior to filing a petition for judicial review in the superior court. Although Hodges is correct, OCGA § 50-13-19 (c) explicitly provides that notwithstanding that a motion for rehearing or reconsideration is not required prior to seeking judicial review, “no objection to any order or decision of any agency shall be considered by the court upon petition for review unless such objection has been urged before the agency .” (Emphasis supplied.)

Further, while OCGA § 50-13-19 (g) allows the superior court to receive proof of alleged procedural irregularities in an administrative proceeding that are not shown in the agency record, this exception does not obviate the requirement that objections or arguments must first be raised before the agency prior to raising the issue in the reviewing court. North Fulton Community Hosp. v. State Health Planning & Dev. Agency, 168 Ga. App. 801, 803 (1) (310 SE2d 764) (1983). As our Supreme Court has explained,

[t]he authorization to the superior court set forth in [OCGA § 50-13-19 (g)] to hear evidence relating to alleged irregularities in procedure before the agency that are not shown in the record is an exception to the principle that review by the superior court shall be confined to the record but is not an exception to the principle stated in [OCGA § 50-13-19 (c)] requiring objections to agency decisions or orders to be urged in the first instance before the agency.

(Citation omitted; emphasis supplied.) Id.

Based on the foregoing, we find that the superior court erred by reversing the decision of the Council based on grounds that were never urged before the Council and that were not raised in the petition for judicial review or at the hearing on the petition. See White v. Ga. Peace Officer Standards and Training Council, 269 Ga. App. 747, 750-752 (2), (4), (6) (605 SE2d 136) (2004). However, because it appears that the superior court has not considered the grounds that were raised in Hodges’ petition for judicial review and that Hodges has not had an opportunity to argue these contentions before the superior court, we hereby remand this case for further consideration. Further, the superior court is authorized to conduct whatever proceedings it deems necessary to decide the issues raised in Hodges’ petition for judicial review.

Decided September 30, 2014

Reconsideration denied December 3, 2014.

Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Joseph J. Drolet, Senior Assistant Attorney General, Angelique B. McClendon, Assistant Attorney General, for appellant.

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Benjamin J. Colson, for appellee.

Judgment reversed and case remanded with direction.

Phipps, C. J., and Ellington, P. J., concur.

       At the outset, we take this occasion to remind counsel about the page limitations set out in Court of Appeals Rule 24 (f). Accordingly, we strike pages 16 to 20 of appellant’s reply brief and have not considered the argument contained on those pages in this appeal.

       The voluntary surrender document reflects that Hodges executed the surrender on December 5, 2012, nunc pro tunc to January 1, 2011.

       The voluntary surrender that Hodges executed also acknowledged that his certifications were revoked “unless and until such time as my certifications may be reinstated, in the sole discretion of the Council.”

       That section provides in full:
      Within 30 days after the service of the petition or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.

       P.O.S.T. raised this argument in its application for discretionary review. See Zekser v. Zekser, 293 Ga. 366, 369-370(2) (744 SE2d 698) (2013) (limiting review in discretionary appeals to the errors actually enumerated in the application for discretionary review).

       P.O.S.T. does not dispute the timeliness or venue of Hodges’ petition.

       P.O.S.T. argues for the first time on appeal that the denial of Hodges’ application for certification was not a contested case within the meaning of another provision of the Georgia Administrative Procedure Act, OCGA § 50-13-13, and that P.O.S.T. has the sole discretion to grant or deny an application for certification. We need not decide whether the denial of Hodges’ application constitutes a “contested case” within the meaning of either OCGA § 50-13-13 or OCGA § 50-13-19 because in the trial court, P.O.S.T. admitted in its response to Hodges’ petition for judicial review that “[t]he review is authorized by OCGA § 35-8-7.2 and governed by OCGA § 50-13-19.” And on appeal, both P.O.S.T. and Hodges agree that OCGA § 50-13-19 applies.

       That section provides: “The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.”

       P.O.S.T. does not challenge the trial court’s decision to strike its supplemental filings on October 7, 2013; accordingly, that part of the superior court’s order stands affirmed. However, the superior court may reconsider this issue as it deems necessary to allow Hodges a full opportunity to present his case and meet his burden to secure reversal of the Council’s decision based on evidentiary grounds.


author: DOYLE, Presiding Judge. DILLARD, Judge,

text:
    A14A0931.
    BONNER-HILL v. SOUTHLAND WASTE SYSTEMS OF GEORGIA, INC.
    (767 SE2d 803)
   DOYLE, Presiding Judge.

Latoya Bonner-Hill appeals the denial of her claim for workers’ compensation benefits as a result of her husband’s death. For the reasons that follow, we reverse.

The record shows that Adonis Hill was hired by Southland Waste Systems of Georgia, Inc. (“Southland”), on February 15, 2010. South-land’s operation is located in a large building off State Route 247, which runs in a general north and south direction. Running parallel to State Route 247 is a Georgia Southern and Florida Railway railroad track, which must be crossed in order to access Southland, and there is no other point of entry for a vehicle. The crossing consists of a short paved entrance road, which then continues slightly past Southland’s building. After crossing the railroad tracks, an employee may turn right in front of Southland’s building to access the parking area, which is between Southland’s building and other structures.

Southland leases the property from B&D Services, Inc., and the property consists of “[approximately 2.0 acres with a [shop building] and all improvements thereon at the western side of [State Route 247] . . . .” The lease also states that “[t]he Leased Premises shall include access to the property described above over an entrance road presently located on Lessor’s property running from [State Route 247] to the [2.0 acre property].” This entrance road was for “ingress and egress including use by [Southland’s] vehicles and vehicles of its employees, and business invitees.”

Within a month of hire, on March 4, 2010, Hill was headed to work and driving southbound on State Route 247. As he turned right into the entrance roadway to cross the railroad tracks, his vehicle was struck by a northbound train. The collision caused numerous injuries, resulting in Hill’s death.

Hill’s wife filed a claim for workers’ compensation death benefits on behalf of herself and three minor children. Southland defended against payment of those benefits, asserting that Hill’s death did not occur in the course of his employment.

The administrative law judge (“ALJ”) determined that the claim was compensable based upon a finding that the short entrance road, which crossed the railroad track, was the only route by which Hill could access his workplace. The ALJ also found that based on the lease between Southland and the lessor, Southland “had use of the access road which started at Highway 247 Spur and that the employer had use of this entrance for ingress and egress of employees and visitors.” The ALJ concluded that because Hill had no alternative route to take to get to the building, the entrance road was part of the business premises, his arrival was during a reasonable time before his appointed shift time, and Southland had control over the entrance road pursuant to the lease. Southland appealed to the Board.

The Board reversed the ALJ, holding that because Hill had not arrived at work prior to the accident, the ingress/egress rule did not apply. The Board concluded that this exception only applies to accidents that occur on the employer’s premises and because South-land did not exclusively own, maintain, or control the entrance road upon which Hill was traveling, the Board determined that Hill had not arrived at work, thus excepting this case from the ingress/egress rule.

Bonner-Hill sought reconsideration of the order, and the Board denied her motion. She now seeks appellate review of this ruling, which was affirmed by operation of law in the superior court.

Bonner-Hill argues that the Board erred by determining that an employer must have exclusive use of a property in order to have sufficient “control” of the property for the ingress/egress rule to apply when determining whether the accident or injury arose out of and in the course of employment.

On appeal from an award of the Appellate Division of the State Board of Workers’ Compensation, this Court examines the record to see if there is competent evidence to support the award and construes the evidence in a light most favorable to the prevailing party.... [I]t is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this Court has any authority to substitute itself as a fact finding body in lieu of the Board.

“However, erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review.”

Under the Workers’ Compensation Act, a worker is entitled to compensation if he or she is injured in an accident that arose out of and in the course of employment. “The term ‘arising out of’ refers to some causal connection between the conditions under which the employee worked and the injury. The words ‘in the course of’ relate to the time, place and circumstances of the accident.”

“The general rule is that an accidental injury which occurs while an employee is traveling to or from work does not arise out of or in the course of employment, and therefore the injury is not compensable under the [Act].” This is so because

[t]he hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer’s premises, are not ordinarily incident to the employment, and for this reason injuries resulting from such hazards are in most instances held not to be compensable as arising out of and in the course of the employment.

Exceptions to this general rule have been created for certain instances of ingress and egress. Under this ingress/egress rule, if an employee is injured while on the employer’s premises in the act of going to or coming from his place of work, the injury is compensable.* This rule is predicated, in part, on the idea that the employee has not departed from the premises if he or she “has not started traveling a route of his choosing wholly disconnected with his employment.”

Application of the ingress/egress exception requires a factual inquiry into whether the location at which the injury occurred constituted a portion of the respondent business’ premises. The ingress/egress exception will apply if the area where the claimant is injured is an area (1) limited (or very nearly so) to the respondent business, even if the business’s right to the area is merely a leasehold interest or some other nonexclusive access; or (2) owned, maintained, or controlled by the business, even though the area is heavily traversed by the public without connection to the business.

Here, when applying our case law to the undisputed facts, the Board erred by reversing the ALJ’s award of benefits. Southland’s lease includes two acres of property west of State Route 247 within which the train tracks run, and the lease specifically states that the premises “shall include access to the property ... over [the] entrance road” on which Hill was driving when he was killed. Thus, Hill had arrived at the employer’s premises when the accident occurred, triggering application of the ingress/egress rule. Furthermore, the fact that the railway intersected what was essentially a driveway to the business does not remove the case from the ambit of the ingress/ egress rule. Accordingly, the Board erred by reversing the ALJ’s award of benefits.

Judgment reversed.

Miller, J., concurs. Dillard, J., concurs in judgment only.

Decided November 18, 2014

Reconsideration denied December 4, 2014

Buzzell, Graham & Welsh, Stephen M. Welsh, for appellant.

Speed, Seta, Martin & Trivett, Stephanie A. Rockwell, for appel-lee.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       After the case was automatically affirmed pursuant to OCGA § 34-9-105 (b) based on the trial court’s failure to issue an order within 20 days of a hearing on Bonner-Hill’s appeal from the Board of Workers’ Compensation, she filed an application for discretionary appeal, which this Court granted on December 10, 2013.

       If a worker is killed in a compensable accident, the dependents of the deceased worker are entitled to certain benefits. See OCGA § 34-9-265 (b)-(d).

       The respondents in this case include Southland, its workers’ compensation insurer, and the servicing agent. For ease of reading, we refer to them collectively as Southland.

       (Citation and punctuation omitted.) Ready Mix USA v. Ross, 314 Ga. App. 775 (726 SE2d 90) (2012).

       (Punctuation omitted.) Renu Thrift Store, Inc. v. Figueroa, 286 Ga. App. 455, 456 (649 SE2d 528) (2007).

       OCGA § 34-9-1 et seq.

       See OCGA § 34-9-1 (4).

       (Citation omitted.) Med. Center v. Hernandez, 319 Ga. App. 335, 336 (1) (734 SE2d 557) (2012).

        Longuepee v. Ga. Institute of Technology, 269 Ga. App. 884, 885 (605 SE2d 455) (2004). See also Fed. Ins. Co. v. Coram, 95 Ga. App. 622, 624 (98 SE2d 214) (1957) (“while an employee is traveling to and from the employer’s premises in transportation furnished solely by the employee and over a route chosen solely by the employee, he is not in the course of his employment and an accident occurring during such time is not a compensable one”).

       (Punctuation omitted.) Harrison v. Winn Dixie Stores, 247 Ga. App. 6, 7 (542 SE2d 142) (2000); West Point Pepperell, Inc. v. McEntire, 150 Ga. App. 728, 729 (1) (258 SE2d 530) (1979).

       See Hill v. Omni Hotel at CNN Center, 268 Ga. App. 144, 147 (601 SE2d 472) (2004) (an employee’s injury occurring in a portion of a large building open to the public and housing numerous businesses and eateries en route to her employer in a different location of the building did not arise out of or in the course of her employment); Harrison, 247 Ga. App. at 8 (an injury that occurred while an employee is going to or from a parking facility owned, controlled, or maintained by employer is compensable); Knight-Ridder Newspaper Sales, Inc. v. Desselle, 176 Ga. App. 174, 174-175 (335 SE2d 458) (1985) (physical precedent only) (holding that an injury on public street intersecting employer’s building and parking lot was compensable, and the fact that employer merely leased the parking lot was not material because the lot was under the direction and control of the employer, which furnished the lot for its employees); West Point Pepperell, 150 Ga. App. at 728-729 (injury sustained on a public roadway intersecting the employer’s building and the employer’s parking lot furnished for employee use); DeHowitt v. Hartford Fire Ins. Co., 99 Ga. App. 147, 148 (8) (108 SE2d 280) (1959) (injury sustained by employee while entering or leaving the building where employer located was compensable under the Act); Coram, 95 Ga. App. at 624 (employee’s injury sustained while walking across employer’s grounds and parking lot to get to her vehicle was compensable).

       (Punctuation omitted.) Hill, 268 Ga. App. at 147. See also Peoples v. Emory University, 206 Ga. App. 213, 214 (424 SE2d 874) (1992).

       See, e.g., Hill, 268 Ga. App. at 147; Collie Concessions v. Bruce, 272 Ga. App. 578 (612 SE2d 900) (2005) (physical precedent only); Longuepee, 269 Ga. App. at 885; Connell v. Head,
        253 Ga. App. 443, 444-445 (559 SE2d 73) (2002); Labelle v. Lister, 192 Ga. App. 464 (385 SE2d 118) (1989) (injury from automobile accident between two employees leaving work for the day in the employer’s parking lot was compensable injury); DeHowitt, 99 Ga. App. at 147.

       See Knight-Ridder, 176 Ga. App. at 174-175; DeHowitt, 99 Ga. App. at 148 (7), (8) (leasehold interest in certain portions of the building rendered non-exclusive access routes the “premises” for purposes of the ingress/egress rule).

       See Longuepee, 269 Ga. App. at 885; Peoples, 206 Ga. App. at 215 (private road owned by employer but traversed by public constituted “premises” and rule was applicable even though employee had not officially reported for daily duty but was en route to do so); DeHowitt, 99 Ga. App. at 148 (7), (8); U. S. Cas. Co. v. Russell, 98 Ga. App. 181, 184 (105 SE2d 378) (1958) (employee walking from the place he was instructed to park his vehicle to the location where he would pick up work orders was covered by the Act). Compare with Hill, 268 Ga. App. at 147; Corbin v. Liberty Mut. Ins. Co., 117 Ga. App. 823, 823-824 (162 SE2d 226) (1968) (injury was noncompensable when sustained by an employee on an access road to the construction site upon which he was working even though the road was owned by the client for whom the employer was providing construction services).

       Although there was some testimony that one unspecified business (in addition to the lessor and Southland) engaged in some sort of operation on the property and thus shared access to the entrance road and parking lot, our case law establishes that such limited shared access does not transform the area from the business premises to an unrelated area. See Knight-Ridder, 176 Ga. App. at 174-175 (physical precedent only); DeHowitt, 99 Ga.App. at 148 (7), (8).

       See Peoples, 206 Ga. App. at 214; Russell, 98 Ga. App. at 184.

       See Longuepee, 269 Ga. App. at 885; Knight-Ridder, 176 Ga. App. at 174-175 (physical precedent only) (“[t]he period of employment generally includes a reasonable time for ingress to and egress from the place of work, while on the employer’s premises.”); West Point Pepperell, 150 Ga. App. at 728-729 (1).


author: Branch, Judge,

text:
    A14A0942.
    SOUTHWESTERN EMERGENCY PHYSICIANS, P.C. et al. v. NGUYEN et al.
    (767 SE2d 818)
   Branch, Judge,

After six-month-old Keira Pech’s treatment in July 2007 at the emergency room of Phoebe Putney Memorial Hospital, Keira’s parents, Thu Carey Nguyen and Khoeun Pech, brought this negligence action against the hospital, the emergency room physician, the physician’s assistant Michael J. Heyer, and Southwestern Emergency Physicians, P.C. (collectively, “defendants”). Plaintiffs moved for partial summary judgment, arguing that because defendants did not supply “emergency medical care” as defined in OCGA § 51-1-29.5 (c) as a matter of law, they would be liable for any ordinary negligence in the case. The trial court granted the motion. We granted defendants’ application for interlocutory review of this ruling, and we now reverse.

“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.” Walker v. Gwinnett Hosp. System, 263 Ga. App. 554, 555 (588 SE2d 441) (2003) (citations and punctuation omitted). A trial court’s grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga. App. 11, 12 (530 SE2d 477) (2000).

Although we would view the record in favor of defendants as the nonmovants, the relevant facts are not in dispute. On the afternoon of July 7, 2007, while in the care of a babysitter, six-month-old Keira fell off a bed and hit her head on a suitcase. Because Keira’s mother was alarmed by an apple-sized, red-purple lump on the right side of the baby’s head, the mother took Keira to the Phoebe Putney Memorial emergency room. At or soon after 5:50 p.m., a paramedic employed by the hospital noted a hematoma on Keira’s head. At 6:02 p.m., Heyer, the physician’s assistant, diagnosed a “minor injury” consisting of a “scalp contusion,” and did not call in the attending emergency room doctor or order radiology studies. Keira was discharged from the emergency room at 6:10 p.m. Three days later, Keira developed respiratory distress and was readmitted to the same hospital. A CT scan showed that a “very large subdural hematoma” was putting substantial pressure on Keira’s brain. Keira eventually suffered severe and permanent neurological injuries.

Plaintiffs moved for partial summary judgment on the ground that because none of the emergency providers who saw Keira on July 7 believed that her symptoms presented a medical emergency, she did not receive “emergency medical care” as defined in OCGA § 51-1-29.5 (a), with the result that defendants can be held liable for ordinary negligence in the case. The trial court granted partial summary judgment to plaintiffs on this ground.

1. Defendants’ principal argument on appeal is that the trial court erred in granting plaintiffs partial summary judgment because a question of fact remains as to whether Keira was provided “emergency medical care” such that defendants may claim the protections of the “gross negligence” standard set out in OCGA § 51-1-29.5 (c). We agree.

OCGA § 51-1-29.5 (a) (5) defines “emergency medical care” as

bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

(Emphasis supplied.) Subsections (c) and (d) of the same statute provide in relevant part:

(c) In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department..., no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.
(d) In an action involving a health liability claim arising out of the provision of emergency medical care in a hospital emergency department..., the court shall instruct the jury to consider, together with all other relevant matters: (1) [w]hether the person providing care did or did not have the patient’s medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications; (2) [t]he presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship; (3) [t]he circumstances constituting the emergency, and (4) [t]he circumstances surrounding the delivery of the emergency medical care.

(Emphasis supplied.) As we have previously held, there are thus “three conditions which must be present” in order for OCGA § 51-1-29.5 to apply:

(a) the lawsuit must involve a “health care liability claim”;
(b) the claim must arise out of the provision of “emergency medical care”; and (c) the care must have been provided to the patient “in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.”

Nisbet v. Davis, 327 Ga. App. 559, 564-565 (1) (760 SE2d 179) (2014), quoting OCGA § 51-1-29.5 (c). If the statute applies under these criteria, then a jury would be required to consider whether “the circumstances constituting the emergency” as well as those “surrounding the delivery of the emergency medical care” show “by clear and convincing evidence” that the provider’s actions “showed gross negligence.” OCGA § 51-1-29.5 (a) (5), (c), (d).

It is undisputed that plaintiffs’ complaint raises a “health care liability claim” and that Keira received treatment in “a hospital emergency department.” OCGA § 51-1-29.5 (c). Plaintiffs argue, however, that because Keira was never diagnosed as having a serious condition or injury, she was never provided with “emergency medical care.” We disagree.

OCGA § 51-1-29.5 (d) requires a trial court to instruct a jury faced with an emergency room diagnosis or misdiagnosis to consider both “[t]he circumstances constituting the emergency” and “[t]he circumstances surrounding the delivery of the emergency medical care.” Subsection (a) (5) of the statute defines “emergency medical care” as

bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity ... such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy[.]

(Emphasis supplied.) Our Supreme Court has noted that although “the legislature chose not to define‘bona fide’within OCGA § 51-1-29.5,” it is “a phrase of general usage and must be given its ordinary meaning,” which might include actions taken “ ‘in good faith’ or ‘genuine’and‘true.’ ” Abdel-Samed v. Dailey, 294 Ga. 758, 763 (2) (755 SE2d 805) (2014) (citations omitted). In that case, the Court found “ ‘bona fide emergency services’to mean genuine or actual emergency services,” id. at 764 (2), and held that emergency room personnel provided such services to the patient when they examined and diagnosed him. Similarly, in the case before us, the physician’s assistant examined and diagnosed Keira in an emergency room, even if his diagnosis of a mere “contusion” was eventually proved incorrect.

This Court has repeatedly held, moreover, that “the issue of whether a claim [for negligence] involves the provision of emergency medical care may be a question of fact for the jury.” Howland v. Wadsworth, 324 Ga. App. 175, 179 (1) (749 SE2d 762) (2013), citing Bonds v. Nesbitt, 322 Ga. App. 852, 855 (1) (747 SE2d 40) (2013). In Howland, for example, a patient who went to an emergency department after several weeks of pain in her feet was classified on admittance by a physician’s assistant as “non-urgent” and “relatively stable.” 324 Ga. App. at 178. The patient was diagnosed with cellu-litis, a condition typically treated with antibiotics, and discharged, but was found unresponsive the following day. Id. She was eventually diagnosed with arterial blockages that resulted in the below-the-knee amputations of both legs. Id. On appeal from a trial court’s entry of judgment on the jury’s verdict that defendants were liable for ordinary negligence, this Court rejected plaintiff’s argument that the jury should not have considered the “gross negligence” and “clear and convincing” standards of OCGA § 51-1-29.5 (c) because, as a matter of law, the patient did not receive “emergency medical care” as defined in subsection (a) (5) of the same statute. We concluded that under the facts of the case, including a health care provider who did not realize the seriousness of the patient’s condition, the health care provider’s claim that the “gross negligence” standard applied was one that “must be made to and the decision rendered by the jury.” Id. at 181 (2), nn. 3, 4. We noted that an emergency room health care provider may claim the benefit of the statute’s “gross negligence” standard “when he or she mistakenly concludes that a patient . . . [is] ‘capable of receiving medical treatment as a nonemergency patient.’ ” Id. at 181 (2), quoting OCGA § 51-1-29.5 (a) (5).

Here, nothing in the record before us suggests that the physician’s assistant who evaluated Keira in the emergency room was not acting in good faith when he diagnosed her as suffering from a mere “contusion.” See Abdel-Samed, 294 Ga. at 764 (2) (rejecting plaintiffs’ contention that defendants were not providing “bona fide emergency services” when they treated plaintiff in good faith). The circumstances of Keira’s admission, readmission, and permanent injuries also require a jury to consider whether, when Keira presented at the emergency room with a large red-purple lump on her head, she was suffering from an actual emergency — that is, whether she presented a “medical or traumatic condition manifesting itself by acute symptoms of sufficient severity” such that “the absence of immediate medical attention could reasonably be expected” to place her health “in serious jeopardy.” OCGA § 51-1-29.5 (a) (5). Accordingly, the trial court erred when it concluded that subsection (c)’s “gross negligence” standard of care, as well as plaintiffs’ “clear and convincing” eviden-tiary burden, was inapplicable to this case as a matter of law. Howland, 324 Ga. App. at 180-181 (1), (2) (a jury properly determined whether plaintiff’s claim “arose out of the provision of emergency medical care” under OCGA § 51-1-29.5 (a) (5) even when the patient was originally classified as “non-urgent”); Bonds, 322 Ga. App. at 855-856 (1) (the question whether a physician or health care provider was entitled to claim the protections of OCGA § 51-1-29.5 (c)’s “gross negligence” standard was for the jury even when some evidence showed that patient had “stabilized and was capable of receiving medical treatment as a nonemergency patient” within the meaning of OCGA § 51-1-29.5 (a) (5)).

Decided November 21, 2014

Reconsideration denied December 4, 2014

Watson Spence, C. Richard Langley, Huff, Powell & Bailey, Jeffrey D. Braintwain, Erica S. Jansen, for appellants.

Flynn Peeler Phillips, Paul G. Phillips, Brown & Scoccimaro, Ralph O. Scoccimaro, for appellees.

2. Defendants also argue that this record establishes that they supplied “emergency medical care” such that the gross negligence standard of OCGA § 51-1-29.5 (c) should apply as a matter of law. See, e.g., Quinney v. Phoebe Putney Mem. Hosp., 325 Ga. App. 112, 116 (1) (751 SE2d 874) (2013) (gross negligence standard applied as a matter of law when plaintiffs had failed to show that a patient “was ever capable of receiving medical treatment as a nonemergency patient,” but had instead shown “that emergency medical services were necessary because his health was in serious jeopardy”). Defendants did not move for summary judgment on this question below, however, with the result that we do not reach it. See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002) (“Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.”) (footnote omitted).

For the reasons stated above, we reverse the trial court’s partial grant of summary judgment to plaintiffs.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

       We note that the order granting a motion for partial summary judgment is subject to direct appeal. See OCGA § 5-6-34 (a) (1) (granting appeals from any “final judgment”); Whisenhunt v. Allen Parker Co., 119 Ga. App. 813 (168 SE2d 827) (1969) (appeal may be had from a grant of summary judgment on any issue or as to any party); see also Spivey v. Hembree, 268 Ga. App. 485, 486, n. 1 (602 SE2d 246) (2004) (“[t]his Court will grant a timely application for interlocutory appeal if the order complained of is subject to direct appeal and the applicants have not otherwise filed a timely notice of appeal”).

       At the age of three, for example, Keira had numerous seizures each day and could not walk or talk.