“Sovereign Immunity” Won’t Let State Off the Hook for Faulty Road Design

On July 10, the Georgia Court of Appeals ruled a lawsuit against the state’s Department of Transportation (DOT) could go forward. The lawsuit arose from a deadly accident at a recently redesigned road in Atlanta. The DOT argued it could not be held liable under the doctrine of “sovereign immunity,” but the appeals court said some of the plaintiff’s claims could still proceed.

Department of Transportation v. Kovalcik

In 2006, the DOT and the City of Atlanta agreed to renovate a section of Peachtree Road. The City hired a company to develop construction plans for the road, while the DOT awarded construction contracts. Construction took place in 2006 and 2007. The DOT conducted a final inspection of the road in January 2008.

Two months after that inspection, a car traveling southbound on the newly rebuilt Peachtree Road made what the driver thought was a turn into an intersection. Instead, the driver actually turned into a shorter lane marked by a concrete divider. The car struck the divider, killing the driver’s passenger.

The passenger’s parents and estate sued the DOT and the City of Atlanta, among other parties, for wrongful death. The plaintiffs alleged the DOT failed to ensure the safety of Peachtree Road and was negligent in the roadway’s redesign. The DOT argued these claims were barred by sovereign immunity. The trial judge rejected this argument and the DOT appealed.

A three-judge panel of the Court of Appeals agreed with the trial judge that the “negligent design” complaint could proceed to trial. Presiding Judge Sara L. Doyle, writing for the panel, said the Georgia legislature waived sovereign immunity with respect to claims arising from “property owned by the state,” which includes Peachtree Road. The DOT attempted to argue the plaintiffs’ negligent design theory arose from the defective construction plans—which were “owned” by the City and its contractor, not the state—but as Judge Doyle explained, that is not a “meaningful distinction.” Ultimately, the DOT was responsible for “both approving construction plans and inspecting the physical property for compliance with DOT standards as built in accordance with those plans.”

The appeals court agreed with the DOT, however, that the plaintiffs could not pursue a claim against the DOT for “negligent approval of defective construction plans.” This is because sovereign immunity bars any claim against the state arising from the exercise of “licensing” powers, which includes granting permits or approving plans. But the plaintiffs may still argue “negligent inspection” despite the DOT’s protest it should not be liable for the work of the independent contractors who built the road. Judge Doyle said “the mere presence of contractors performing services on behalf of the DOT does not relieve DOT from potential liability for its own actions.”

The Court of Appeals did not rule on the merits of any of the plaintiff’s claims. The appeal was confined to the jurisdictional question of whether sovereign immunity barred any or all of the plaintiff’s claims. The case now returns to a trial court for further proceedings.

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