The case arose from a car accident. A vehicle in which the
plaintiff Munro was a passenger collided with a tractor trailer crossing an
intersection. Munro sued the Georgia Department of Transportation (DOT) for negligently
designing, maintaining, and inspecting the intersection. The DOT filed a motion
to dismiss for lack of subject matter jurisdiction on the ground of sovereign
immunity and a motion to exclude the testimony of the Munros’ expert witness,
among other motions. The trial court dismissed the case in full on the sovereign
immunity ground and denied the other motions as moot. The Munros appealed.
The Georgia Court of Appeals reviewed the trial court’s
ruling on sovereign immunity de novo. It also ruled on DOT’s motion to
exclude the Munros’ expert witness, notwithstanding the trial court’s decision not
to address that motion. In so doing, the Court of Appeals erected substantial
hurdles to successfully stating a claim against the DOT.
The Munros’ claims had to fit within a statutory exception
to sovereign immunity. In Georgia, the DOT has statutory immunity for losses
resulting from “design for construction of or improvement to . . . public works
where such . . . design is prepared in substantial compliance with generally
accepted engineering or design standards in effect at the time of preparation.”
OCGA § 50-21-24(10). So, to state a viable claim against the DOT, the Munros had
prove that the design of the intersection was not in substantial compliance with design standards in effect at
the time of preparation.
The Munros had to find a qualified expert to opine on
these topics. This is where things became interesting. Per Georgia’s Evidence
Code, an expert witness whose testimony is to be used in a professional
malpractice suit must have been licensed at the time of the alleged act or
omission. OCGA § 24-7-702(c)(1). The Munros’ expert’s testimony was deemed
inadmissible to support the claim of negligent design because the expert was
not licensed at the time of design and installation of the intersection. The
expert witness was first licensed in 1969. However, because the intersection was
designed even earlier, the Court of Appeals found that the expert witness’s 54 years of experience were insufficient to qualify him to testify.
The Munros also attempted to prove that the DOT failed to
improve the intersection. This claim, too, was foreclosed to them by virtue of
the Munros’ 80-year-old expert’s relative “youth.” Because this claim likewise required
a showing that the original design was negligent—and the Munros did not have an
expert who was licensed long enough to be qualified to testify to this effect—their
failure-to-improve claim also failed.
To its credit, the Court recognized that its application
of the Evidence Code “effectively destroys an entire class of claims for the
negligent design of roads, as many roads in Georgia were designed long before
any potential living expert witness had been licensed.” Despite this arguably
absurd result, the Court deferred to the intent of the Georgia legislature as
evinced by the text of the statute.
The Munros ultimately utilized a different exception to
sovereign immunity to successfully assert a negligent inspection claim. Georgia
statutorily waives immunity for losses resulting from inadequate or negligent
inspection of state property. O.C.G.A. § 50-21-24(8). The DOT did not claim
immunity, but instead tried to argue that the negligent inspection claim was so
intertwined with the negligent design claim as to warrant dismissal. Here, the
Court sided with the Munros, noting that the DOT’s duty to keep the
intersection free from visual obstructions (e.g., overgrown bushes), was
distinct from any design responsibilities. The Munros, therefore, were able to
return to the trial court with their negligent inspection claim intact.
This decision was not appealed further, which might mitigate the attention Munro draws to Official Code of Georgia Section 50-21-24(10). Still, it will be interesting to track whether the decision, and the immortal-expert requirement that the legislature and the court may have inadvertently created between them, prompts an attempt to amend the Evidence Code. As things currently stand, assuming one can find an 85-year-old engineer willing to testify as an expert witness, such engineer likely wasn’t licensed before age 25, meaning any claims requiring proof that a design done before approximately 1963 is negligent are foreclosed by the Code. The intersection at issue in Munro was designed in 1931, meaning the Munros would have had to find an expert at least 117 years old to be qualified to testify. This case is a paradigmatic example of enacting a statute with insufficient thought as to the bizarre results it could produce.
Editor Jane Fox Lehman is a Senior Attorney at The Babcock & Wilcox Company.