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Georgia Dep't of Transp. v. Smith

Operational inspections of the roadways by state agency employees, and concomitant decisions as to whether or not to inspect and remove hazardous trees, did not constitute basic governmental policy decisions within the scope of the discretionary function exception to the waiver of immunity found in the Georgia Tort Claims Act.

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Ernest F. Smith, Sr., and his wife, Irene D. Smith, lost their lives from injuries they sustained after a large oak tree fell on their vehicle as they were driving on State Route 154. Ernest F. Smith, Jr., and Robert M. Smith the Smiths, individually and as co-executors of their parents’ estates, brought the underlying wrongful death actions against the Georgia Department of Transportation DOT, alleging that the tree in question was hazardous; that it was growing on the DOT’s right of way; and that the DOT’s employees were negligent in failing to discover and remove it. In each lawsuit, the DOT moved to dismiss based on sovereign immunity. The trial court denied the DOT’s motion to dismiss, and the DOT appeals from these orders in Case Nos. A11A1579 and A11A1580.1 The trial court subsequently granted summary judgment in favor of the DOT and against the Smiths; the Smiths appeal from these orders in Case Nos. A11A2017 and A11A2089. For the reasons set forth below, we affirm the trial court’s orders in these cases. A11A1579 and A11A1580

1. In Case Nos. A11A1579 and A11A1580, the DOT argues that it is immune from suit under the Georgia Tort Claims Act “GTCA”,2 and therefore that the trial court lacked subject matter jurisdiction over it.3 “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.”4

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