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Karwacki v. Georgia Dep't of Transportation11/8/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
On February 1, 1996, 15-year old Jessica Lynn Karwacki was killed when a car in which she was a passenger collided with a tree. Claiming that the roadway was negligently inspected and maintained, Jessica's parents, David and Laura Karwacki, sued the Georgia Department of Transportation ("DOT") for her wrongful death. DOT subsequently moved for summary judgment, and the trial court granted the motion. For reasons that follow, we reverse.
Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review a trial court's grant of summary judgment de novo, construing the evidence and all reasonable inferences in a light most favorable to the non-movant.
Viewed in this manner, the evidence shows that, on the day of the collision, Amanda Bond drove Jessica and another friend, Jennifer Wallace, home from school. While traveling north on Georgia Highway 251, Bond lost control of her car and crashed into a tree. Both Jessica and Jennifer were killed.
Tire marks on the highway showed that Bond's car crossed the centerline, left the road on the west side, and struck a tree. The highway was straight, level, and dry. Bond has no memory of how or why she lost control, and it appears that no one else witnessed the wreck.
The day after the collision, David Karwacki visited the scene and observed a tire mark running from the east side of the roadway to the west side, leading directly to the tree struck by Bond's car. Approximately 50 feet before the tire mark began, he also noticed a "freshly made gouge" on the east-side shoulder. At that point, the shoulder adjacent to the road dropped off approximately eight to ten inches. Two other individuals also saw the gouge, as well as the significant drop-off near the gouge, in the days following the collision. And one witness observed scraping damage on the underside of Bond's car, behind the front passenger wheel.
Claiming that Bond initially lost control of her car when the passenger-side tires dropped off the east side of the roadway, the Karwackis sued DOT for negligent inspection and maintenance of the highway and shoulder. According to the complaint, " he shoulder on the east side of Georgia Highway 251, at and near the location of the accident site, contained holes, ruts, and drop-offs, which defects are the proximate cause the said collision."
To support their claim, the Karwackis offered expert testimony from two engineers. Dr. Robert Roberts, who is experienced in road construction and maintenance, testified that DOT failed to properly maintain the highway shoulder where the collision occurred, asserting that " t is a deviation from the standard of care to allow a [drop- off] in excess of two inches from the paved portion of the roadway to the shoulder of the roadway." Roberts further stated that, in his opinion, Bond's front wheel moved off the roadway onto the east-side shoulder, which was over seven inches below the roadway, and this severe drop-off caused her to lose control of the vehicle. Herman Hill, an accident reconstructionist, similarly testified that Bond lost control when she encountered the steep drop-off on the east side of the highway. Hill explained:
It is my opinion that Amanda Bond left the [east side of the] roadway at a point where the gouge mark has been identified by photos and witnesses and where the drop off is approximately 7.5 inches. Based on the tire marks shown in photos the [vehicle] returned to the road surface and began to rotate counter clockwise toward the west shoulder.
According to Hill,
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