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Sotomayor v. TAMA I7/12/2005
the parking spaces. In June 1998, Goldman decided to install additional bumper stops to protect the landscaping because residents were parking haphazardly on the grass. Goldman was concerned with making the property more attractive to prospective tenants, so the new bumper stops were concentrated in the parking area around the leasing office. Goldman testified that the devices were not installed to prevent collisions between pedestrians and vehicles.
In support of their negligence claim, the Sotomayors retained an expert in traffic engineering and accident reconstruction, Herman Hill. In his deposition, Hill opined that the landlord was required to install bumper stops in front of the apartment building and that a bumper stop either would have stopped Suarez's vehicle, a low-riding Honda Accord, or would have slowed it down to the extent that the children would have had the opportunity to disperse. Hill based his opinions on "the reasonable person standard" and on the "standard of practice or the reasonableness of design and operation based on the principles of separating conflicts between vehicles and pedestrians . . . that is covered by state and national standards." Specifically, Hill relied upon a manual entitled "Geometric Design of Highways and Streets," which is issued by the American Association of State Highway and Transportation Officials ("AASHTO") However, Hill deposed that there were no state, federal, or local laws or ordinances mandating the use of bumper stops. Specifically, he testified that he was unaware of any regulation in Georgia requiring the application of AASHTO standards to parking lot construction. However, he testified that the same principles of separating conflicts between vehicles and pedestrians on residential streets apply to parking lots as well.
On appeal, the Sotomayors argue that the trial court erred in granting summary judgment because their expert's testimony created genuine issues of fact as to whether the landlord had a duty to install bumper stops in front of their building, whether the landlord breached that duty, and whether the incident was reasonably foreseeable. In addition, they contend that Suarez's conduct was a concurrent cause, not an intervening cause, of the child's death.
1. " here the owner has retained control over common areas of an apartment complex to which tenants and others are allowed access, the owner is liable under OCGA ยง 51-3-1 to exercise ordinary care in keeping those common areas safe." In their first enumerated error, the Sotomayors argue that Herman Hill's testimony created an issue of fact as to whether the landlord had a duty to install bumper stops. This argument fails because Hill deposed that there were no state, federal, or local laws or ordinances mandating the use of bumper stops. There is no evidence that such devices were required by any housing code. Moreover, the AASHTO manual upon which he relied does not specifically reference the construction of residential parking lots; rather, as its title suggests, the manual is intended to provide guidance in the construction of highways and streets. In addition, the manual states that "barrier curbs are not adequate to prevent a vehicle from leaving the roadway." According to the manual, "the barrier curb has limited capacity as a shield for pedestrians, but acts to discourage the mingling of vehicular and pedestrian traffic." Accordingly, Hill's opinion testimony that the landlord was required to install bumper stops in front of the plaintiff apartment building is not supported by probative evidence and amounts to bolstering, particularly with regard to his opinion as to what measures would be reasonable.
he scope of what is admissible as exper
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