Facts
In the case of Munro v. Georgia Department of Transportation, the parents of Ashleigh Munro brought a wrongful death action against the Georgia Department of Transportation (DOT) after Ashleigh died as a passenger in a car that collided with a tractor-trailer at an intersection designed by Georgia DOT before 1969. The Munro family claimed that DOT negligently designed the intersection that caused the crash. Alternatively, the Munro Family also claimed that DOT failed to improve the design of the intersection and that DOT negligently inspected the intersection for hazards.
The Plaintiffs hired an expert witness, Herman Hill, for the professional engineering malpractice claim. The expert witness was licensed as a professional engineer in 1969 after the intersection was designed.
When the Plaintiffs filed the lawsuit against DOT, they claimed that a waiver of sovereign immunity existed under O.C.G.A. 50-21-24 as a result of the negligent design exception and because of the negligent inspection exception. DOT filed (1) a motion to dismiss based on sovereign immunity, (2) a motion for summary judgment, and (3) a motion to exclude the testimony of the Plaintiffs’ expert witness, Herman Hill. The trial court granted the motion to dismiss based on sovereign immunity. The Plaintiffs appealed.
Issues & Holdings
The issue in this case is whether the Plaintiffs successfully established a waiver of sovereign immunity under either the negligent design exception or the negligent inspection exception.
The Court of Appeals held that the Plaintiffs failed to demonstrate a waiver of sovereign immunity with respect to the negligent design claim because their expert, Hill, could not testify about the “generally accepted engineering or design standards in effect at the time of the preparation of the plan or design,” as required by O.C.G.A. § 50-21-24(10). However, the Court of Appeals held that a waiver of immunity applied on negligent inspection claim and reversed the trial court on this issue.
Reasoning
Negligent Design Waiver of Sovereign Immunity
The State Tort Claims Act provides that
The state shall have no liability for losses resulting from ... [t]he 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[.]
O.C.G.A. § 50-21-24 (10).
The key issue in this case was whether the Plaintiffs could prove that the intersection was not designed in substantial compliance with the generally accepted engineering or design standards at the time of its design when its expert was not licensed until after it was designed. Pursuant to O.C.G.A. § 24-7-702(c)(1), in professional malpractice cases, expert opinions about the acceptable standard of professional conduct for the conduct at issue is admissible only if “at the time the act or omission occurred” the expert was licensed by an appropriate regulatory agency to practice his profession in the state where the expert was practicing or teaching at such time.
The Court of Appeals held that at the time the DOT designed the intersection, the Plaintiffs’ expert had not yet been licensed as an engineer. Therefore, he could not testify about the “generally accepted engineering or design standards that were in effect at the time of preparation of the plan or design.” O.C.G.A. § 50-21-24(10) (the negligent design waiver exception).
Although the Plaintiffs cited to multiple cases where Georgia courts have allowed engineering experts to testify about designs completed long before they were experts, the Court of Appeals reasoned that those cases did not apply since each case was decided before the expert qualification statute at O.C.G.A. § 24-7-702(c)(1) was enacted.
The Plaintiffs also that their expert could at least testify about the standards that exist now (at the time of the incident) to show that DOT failed to later remedy the defective design. However, the Court of Appeals rejected this argument because the Plaintiffs still had to show that the original design was negligent based on the engineering and design standards that existed at the time it was designed. And again, the Plaintiffs’ expert was not qualified to do that.
The Court of Appeals acknowledged that the practical effect of its decision was to prevent Plaintiffs from pursuing an entire class of cases involving negligent road design claims because many roads were designed long before any living experts were born. Nevertheless, the Court of Appeals held that this was a matter for the legislature to remedy, not the courts.
Negligent Inspection Waiver of Sovereign Immunity
O.C.G.A. § 50-21-24(8) provides for a waiver of sovereign immunity for claims involving the negligent inspection, or failure to inspect, state property. Separate from the negligent design claim, the Plaintiffs claimed that DOT negligently inspected the intersection and had a duty to inspect physical property to determine if it complied with accepted safety standards.
The Court of Appeals agreed with the Plaintiffs that they had set forth a viable negligent inspection claim that should not have been dismissed. The Court of Appeals reasoned that the negligent inspection claim was not inextricably intertwined with the negligent design claim as pled in the complaint. Therefore, the Court of Appeals reversed the trial court’s dismissal of the negligent inspection claim.
Conclusion
Munro v. Georgia Department of Transportation reminds us that an expert has to have been licensed at the time of the act or omission at issue to be qualified to render an opinion. Because of the State Tort Claims Act’s limitation on negligent road design claims, this may mean that some of these claims are simply not viable if there is not an expert who was licensed at the time it was designed.
While this may mean that some cases cannot be pursued, this case also demonstrates the importance of looking at alternative theories of recovery, such as negligent inspection claims.
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Citation: Munro et al. v. Georgia Department of Transportation, No. A23A0404 (Ga.Ct. App. June 27, 2023)
