holding that “[i]n the absence of any evidence that the design of the intersection failed to comply with then existing engineering and design standards,” the design exception of OCGA § 50-21-24 (10) “rendered the [s]tate DOT immune from any claim that it proximately caused the fatal accident because it negligently failed to upgrade the design of the intersection to higher standards to make it safer.”
How later courts described this case
- holding that “[i]n the absence of any evidence that the design of the intersection failed to comply with then existing engineering and design standards,” the design exception of OCGA § 50-21-24 (10) “rendered the [s]tate DOT immune from any claim that it proximately caused the fatal accident because it negligently failed to upgrade the design of the intersection to higher standards to make it safer.”
- holding that even if it was foreseeable to defendant that acting more quickly might have avoided the injury, such circumstance did not impose a legal duty on defendant to act sooner, noting that defendant had done nothing to create alleged unsafe condition, and citing proposition that a person is under no duty to rescue another from a situation of peril which the former has not caused
- dismissing the appellees’ cross-appeal when the trial court’s judgment in the main appeal was affirmed
- “the [licensing powers] exception grants broad immunity for losses resulting from virtually any action the State DOT could take regarding the authorization” to install a traffic light
Written by the judges who cited it.
The opinion
*273 BARNES, Chief Judge,
concurring specially in Case No. A06A1655,
and concurring fully and completely in Case No. A06A1656.
While I concur in the result reached by the majority in Case No. A06A1655,1 do not agree with all that is said. 7
1. The trial court granted the DOT’s motion to dismiss and signed its proposed order, which states that the department is entitled to sovereign immunity based on two exemptions to the immunity waiver contained in the Georgia Tort Claims Act. While I agree with the majority that the State is immune from this suit under OCGA § 50-21-24 (9), which exempts liability for losses resulting from its issuing a permit, I cannot agree that the State is immune under OCGA § 50-21-24 (10), which exempts liability for losses resulting from the plan, design, or improvement of roads. In this case, the plaintiffs make no claim regarding design defects. Their claim is that, once the DOT issued the traffic light permit to Gwinnett County, it negligently failed to ensure that the light was actually installed. Thus, the “design” exemption to the waiver of sovereign immunity does not apply in this case. Plaintiffs are not arguing that the State was negligent because it did not change the intersection design and install the traffic light sooner; they argue that, once the State determined that a light was needed, it had a duty to see that the light was installed.
2. I also agree that the trial court properly granted summary judgment to the Gwinnett County employees on the basis of official immunity, but not because the state permit did not specify a time limit or require the county to act. An action does not become discretionary solelybecause.no fixed time frame exists within which it must be taken, and the county employees were required to install the light apart from any state directive or not, because the county wanted the light installed. Clearly, they had a duty to take some action toward the goal of installing the traffic light. After reviewing the depositions and affidavits in the record, however, I find no evidence that the employees negligently fulfilled their ministerial duty, and thus I concur with the affirmation of the trial court’s order granting them summary judgment.
3. Finally, as to CSX, I also agree that it is entitled to summary judgment because the record established no negligence in its response to Gwinnett County’s request to enter into a preemption agreement. I disagree that CSX had no legal duty to conclude the *274 agreement at all, within any time frame; as with the county defendants, the absence of explicit time limits does not mean that any length of time would be permissible.
Decided March 19, 2007.
Parks, Chesin, & Walbert, David F. Walbert, Thomas D. Trask, Peter F. Boyce, for appellants (case no. A06A1655).
O’Quinn & Cronin, Michael A. O’Quinn, for appellants (case no. A06A1656).
Fulcher & Flagler, Scott W. Kelly, O’Quinn & Cronin, Michael A. O’Quinn, Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Robert C. Edwards, Assistant Attorney General, for appellees (case no. A06A1655).
Parks, Chesin & Walbert, David F. Walbert, Thomas D. Trask, PeterF. Boyce, CatherineM. Packwood, for appellees (case no. A06A1656).
I concur fully and completely with the majority’s finding in Case No. A06A1656 that the appeal is rendered moot by our affirmance of the summary judgment grant to the county employees.
I am authorized to state that Judge Ellington joins in this opinion.
Because I do not agree with all that is said, this opinion is physical precedent only. Court of Appeals Rule 33 (a).