                               FIRST DIVISION
                               BARNES, P. J.,
                           MERCIER and BROWN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      March 9, 2020




In the Court of Appeals of Georgia
 A19A1912. GEORGIA DEPARTMENT OF TRANSPORTATION
     v. THOMPSON et al.

      BROWN, Judge.

      This interlocutory appeal arises out of an action by Carol and John Thompson,

individually, and as parents and next friends of their two children (“the Thompsons”),

against the Georgia Department of Transportation (“DOT”), asserting claims of

negligence arising out of a collision in which Carol and the two children suffered

severe injuries. DOT appeals from the trial court’s order denying its motion to dismiss

based on sovereign immunity. For the reasons set forth below, we vacate the trial

court’s order denying DOT’s motion to dismiss, and remand this case to the trial

court.1

      1
        We have circulated this decision among all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
      “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 [any] evidence supporting them, and the burden of proof is on the party

seeking the waiver of immunity.” (Citation and punctuation omitted.) Ga. Dept. of

Transp. v. Owens, 330 Ga. App. 123, 133 (4) (766 SE2d 569) (2014).

      So viewed, the record shows that on June 16, 2014, Carol and her two children

were traveling south on Cleveland Highway (State Route 11), near its intersection

with Jess Helton Road. Cleveland Highway is a two-lane highway, however, at that

time and location, on the northbound side of the roadway — as the highway

approached Jess Helton Road — there was a left-hand passing lane.2 As Carol

approached the intersection, a vehicle traveling north on Cleveland Highway was

waiting in the passing lane to turn left onto Jess Helton Road. A third vehicle,

traveling north on Cleveland Highway in the passing lane, swerved to avoid hitting

the vehicle turning left, traveled into the right northbound lane and onto the shoulder



Court. Fewer than the required number of judges, however, voted in favor of a
hearing en banc on the question of disapproving Ga. Dept. of Transp. v. Dupree, 256
Ga. App. 668 (570 SE2d 1) (2002).
      2
        The record reflects that the passing lane no longer exists; it has been
converted into a turn lane.

                                          2
of the highway, lost control of the vehicle, and struck Carol’s vehicle, causing serious

injuries.

       The Thompsons sued DOT under the Georgia Tort Claims Act (“GTCA”),

OCGA § 50-21-20 et seq., alleging that DOT was negligent in the design, building,

and maintenance of Cleveland Highway at its intersection with Jess Helton Road.

Specifically, the Thompsons allege that DOT failed to provide the minimum required

sight distance for drivers approaching the intersection; failed to post adequate and

sufficient speed warnings; and failed to provide and/or maintain the shoulder of the

highway at a proper slope. Pursuant to OCGA § 9-11-9.1, the Thompsons attached

to their complaint the affidavit of engineer Herman Hill. In that affidavit, Hill opined

that DOT failed to provide minimum required sight distance for drivers at the location

of the Thompsons’ accident, and that DOT was aware of the history of accidents and

failed to address the problem.

       DOT filed a motion to dismiss for lack of subject matter jurisdiction, asserting

that the Thompsons’ claims are barred by the discretionary function and design

exceptions to the State’s waiver of sovereign immunity. See OCGA § 50-21-24 (2),

(10). Following a hearing on the motion, during which Hill testified, the trial court

denied the motion, finding that (1) while maintenance of the shoulder arguably falls

                                           3
under the policy category such that the discretionary exception might apply, the

Thompsons have put forth expert testimony that the shoulder condition violated DOT

maintenance standards, and (2) DOT did not rebut Hill’s opinion that DOT committed

engineering and design malpractice, which led to the Thompsons’ injuries. DOT

appeals this ruling.

      Pursuant to Article I, Section II, Paragraph IX (e) of the Georgia Constitution

of 1983,

      sovereign immunity from suit extends to all state departments and
      agencies unless properly waived through an act passed by the General
      Assembly. Sovereign immunity is waived by a legislative act only if the
      statutory language specifically provides that sovereign immunity is
      waived and the extent of such waiver.


(Citation and punctuation omitted.) Ga. Dept. of Transp. v. Balamo, 343 Ga. App.

169, 170 (1) (806 SE2d 622) (2017). The doctrine of sovereign immunity requires

that the conditions and limitations of the statute that waives immunity be strictly

followed. Id. at 171 (1). The GTCA declares the public policy of this state to be that

“the state shall only be liable in tort actions within the limitations” set out in the

GTCA. OCGA § 50-21-21 (a).




                                          4
      Consequently, although the [GTCA] waives the state’s sovereign
      immunity, OCGA § 50-21-23, that waiver is limited by certain specified
      exceptions and limitations, which are also set forth in the [GTCA]. Or,
      stated succinctly, the state is only liable in tort actions within the
      limitations of the [GTCA]. Further, any suit brought to which an
      exception applies is subject to dismissal pursuant to OCGA § 9-11-12
      (b) (1) for lack of subject matter jurisdiction. The party seeking to
      benefit from the waiver of sovereign immunity has the burden of proof
      to establish waiver. . . .


(Citation and punctuation omitted.) Diamond v. Ga. Dept. of Transp., 326 Ga. App.

189, 190 (1) (756 SE2d 277) (2014). Under the GTCA, “[t]he state waives its

sovereign immunity for the torts of state officers and employees while acting within

the scope of their official duties or employment. . . . “ OCGA § 50-21-23 (a). There

are several exceptions to the state’s waiver of sovereign immunity, including the

design exception which states that “[t]he state shall have no liability for losses

resulting from . . . [t]he plan or design for construction of or improvements to

highways, roads, streets, bridges, or other public works where such plan or design is

prepared in substantial compliance with generally accepted engineering or design

standards in effect at the time of preparation of the plan or design.” (Emphasis

supplied.) OCGA § 50-21-24 (10). The other exception to the state’s waiver of


                                         5
sovereign immunity raised in this case is the discretionary function exception which

provides that “[t]he state shall have no liability for losses resulting from . . . [t]he

exercise or performance of or the failure to exercise or perform a discretionary

function or duty on the part of a state officer or employee, whether or not the

discretion involved is abused.” OCGA § 50-21-24 (2). A discretionary function or

duty is defined in OCGA § 50-21-22 (2) and “means a function or duty requiring a

state officer or employee to exercise his or her policy judgment in choosing among

alternate courses of action based upon a consideration of social, political, or

economic factors.” See Hagan v. Ga. Dept. of Transp., 321 Ga. App. 472, 475 (1)

(739 SE2d 123) (2013). Whether DOT is entitled to sovereign immunity under either

or both of these exceptions “is a threshold issue that the trial court [is] required to

address before reaching the merits of any other argument.” (Citations and punctuation

omitted.) Gonzalez v. Ga. Dept. of Transp., 329 Ga. App. 224, 225 (764 SE2d 462)

(2014).

      Here, the Thompsons’ expert, Herman Hill, testified that Cleveland Highway

originally was planned in 1922 as a two-lane road, and redesigned in 1973 to add

three passing lane locations, one of which was located near Jess Helton Road heading

northbound out of Gainesville toward Dahlonega. According to Hill, the redesign did

                                           6
not change any of the alignment, curvature, or slopes on the roadway, but created a

potential problem at the location of the Thompsons’ accident because vehicles

waiting to turn left onto Jess Helton Road from Cleveland Highway could be at a

dead stop in the left passing or “fast lane,” and not easily seen by advancing cars

traveling in that passing lane. During the hearing on DOT’s motion to dismiss, Hill

testified on direct examination that the speed limit on Cleveland Highway is 55 miles

per hour, which requires approximately 495 feet of stopping sight distance3 based on

the 1965 American Association of State Highway and Transportation Officials

(“AASHTO”) standards, applicable to this case. Hill opined that a driver in the left

passing lane did not have sufficient sight distance to stop at the intersection, such that

the roadway was not in substantial compliance with the “generally accepted

engineering design standards in effect at the time of the [re]design, [in] ‘73.”4 During

his deposition, however, Hill testified that pursuant to the 1965 AASHTO standards,

the minimum stopping sight distance at this location was in the “ballpark” of at least

      3
        “Stopping sight distance” is the distance necessary for a driver traveling on
the roadway who comes upon an object that is stopping or stopped in front of it to
recognize the object and then safely stop or avoid the object in sufficient time.
      4
       The record does not contain a “design standard of 1973.” During cross-
examination, Hill acknowledged that “the 1965 AASHTO is the standard in this
case.”

                                            7
410 feet, and that this standard had been met.5 As he further explained during the

hearing, a vehicle traveling 50 miles per hour must have a minimum stopping sight

distance of 350 feet, and a vehicle traveling 60 miles per hour must have 475 feet.

Hill also confirmed in his deposition that the 1973 redesign plans met AASHTO’s

minimum stopping sight distance requirements. On cross-examination, Hill testified

that on the date of the Thompsons’ accident “the measured sight distance available

to a driver” traveling northbound in the center lane was “in the vicinity of 500 feet,”

which exceeded the minimum requirements set forth in the 1965 AASHTO standards.

      As to the signage on the roadway, Hill testified that a warning sign prior to the

intersection instructed “merge left” or “move to the left,” but did not indicate that

vehicles could be turning from the left lane onto Jess Helton Road. Hill also stated

that there was a “standard[-]T” yellow diamond warning sign informing drivers that

there was an intersecting road ahead, but he explained that there was another road

intersecting Cleveland Highway before Jess Helton Road and that drivers could

interpret the sign as applying to the first intersection. According to Hill, sign


      5
        Hill visited the scene of the accident in 2015, but never recorded the actual
stopping distance. During that visit, he estimated “in the vicinity of 400 feet sight
distance available” for a driver approaching Jess Helton Road, but he could not be
more certain because he did not record the measurement.

                                          8
standards are governed by the Manual on Uniform Traffic Control Devices

(“MUTCD”), which requires warning signs to be 500 or more feet back. Hill stated

that the “standard[-]T” sign was further than 500 feet back and complied with

MUTCD standards.

      After DOT filed its motion to dismiss, the Thompsons amended their complaint

with a second affidavit from Hill. In that affidavit, Hill again opined that the roadway

was negligently designed because the passing zone did not include a sign warning a

passing driver that a vehicle ahead might be making a left turn onto Jess Helton Road,

and that the roadway was improperly maintained because the right shoulder had

deteriorated to the point where there was greater than a two inch drop from the

pavement to the shoulder. But, Hill altered his opinion about the available “sight

distance,” opining for the first time that the issue at this location on the roadway was

not a “standard stopping sight distance issue,” but a “decision sight distance issue,”

which is “the distance required for a driver to detect unexpected or otherwise

difficult-to-perceive information sources or hazards in a roadway environment that

may be visually cluttered, recognize the hazard or its threat potential, select an

appropriate speed and path[,] and initiate and complete the required safety

maneuver.” Hill averred that at this location, 750 feet of decision-making sight

                                           9
distance was required, but acknowledged that decision-making sight distance did not

become part of the AASHTO standards until 1984. In Hill’s opinion, northbound

drivers should have been warned of the left-hand turn lane farther in advance because

the decision-making sight distance was not sufficient. Hill opined that the existing

signage was a “man-trap” because it placed passing vehicles in a collision path with

vehicles turning left onto Jess Helton Road, and that DOT failed to follow MUTCD

standards by not placing a sign warning vehicles using the passing lane of the

Cleveland Highway/Jess Helton Road intersection. As Hill opined in his affidavit:

      The passing zone had no signs warning of the Jess Helton Intersection,
      nor did it have signs warning vehicles utilizing the passing [lane] that a
      vehicle might be turning left in the area just before the end of the
      passing lane. In the instant case[,] a vehicle utilizing the passing lane did
      not have enough time after passing a car to get back into the right lane
      and avoid a vehicle making a left turn onto Jess Helton Road. As a
      result, the driver of the vehicle tried to get back into the right lane and
      his tires went off the roadway. Because the shoulder on the right side of
      [Cleveland Highway] was negligently maintained, the driver
      overcorrected when his tire went off the shoulder and he veered into the
      oncoming lane and hit [Carol’s] vehicle coming from the opposite
      direction. . . . The design failed to substantially comply with the
      engineering standards applicable at the time of the design because it
      failed to provide sufficient warnings and traffic control devices for a
      significant left hand movement, considering [DOT] knew vehicles were

                                           10
      likely to be using the left lane both to turn and to pass. Warnings such
      as double signs indicating left turning traffic ahead with signs . . ., or a
      flashing beacon or a word message should have been made in the
      roadway indicating that an intersection was ahead and that a car making
      a left hand turn might be ahead.


      With regard to the shoulder of the roadway, Hill averred that at the time of the

accident, the right shoulder had deteriorated to the point where there was a greater

than two-inch drop from pavement to the dirt shoulder. In Hill’s opinion this drop

caused the driver of the vehicle that hit the Thompsons’ vehicle to overcorrect when

his tire went off the shoulder and veer into oncoming traffic. Hill explained that he

could not measure the drop himself when he performed a site inspection because it

had been repaired, but he testified that based on police photographs and video of the

site taken at or near the time of the accident, he could “clearly” see that the shoulder

was more than two inches below the surface pavement. According to Hill, DOT

Maintenance Standard 305 requires repair of low shoulders or rutting of two inches

in depth or greater.

      1. As an initial matter, DOT contends that the trial court applied an incorrect

burden of proof for establishing a waiver of sovereign immunity by requiring DOT




                                          11
to provide evidence to rebut Hill’s opinions, and the Thompsons to simply show that

their claims were not frivolous. We agree.

      As noted previously, the party seeking to benefit from a waiver of sovereign

immunity has the burden of proof to establish that waiver. In this vein, “[t]o avoid

application of immunity under [the design exception], [a plaintiff] must submit expert

testimony or other competent evidence to show that the plan or design was not

prepared in substantial compliance with generally accepted engineering or design

standards at the time such plan was prepared.” Balamo, 343 Ga. App. at 171 (1).

When faced with a motion to dismiss for lack of subject matter jurisdiction on the

grounds of sovereign immunity, the trial court has two options: It may hold a hearing

prior to trial and hear evidence as provided by OCGA § 9-11-12 (d), or it may defer

final determination until trial. See James v. Ga. Dept. of Public Safety, 337 Ga. App.

864, 867-868 (2) (789 SE2d 236) (2016). “When ruling on a motion to dismiss based

upon jurisdictional grounds, the trial court must make the determination acting as the

trier of fact. Its evaluation rests on where the preponderance of the evidence lies, not

necessarily on whether the issue may be decided as a matter of law.” Derbyshire v.

United Builders Supplies, 194 Ga. App. 840, 842-843 (1) (392 SE2d 37) (1990).



                                          12
      In this case, the trial court elected to proceed under the first “hearing option”

and ultimately denied DOT’s motion. On the issue of design of the roadway, the trial

court ruled that DOT had not put forth any “testimonial evidence in rebuttal at this

time” to Hill’s opinion that the design of the roadway violated AASHTO standards

requiring more than 750 feet decision sight distance, and that while DOT had pointed

to some weaknesses in Hill’s testimony, “‘an expert’s affidavit . . . does not have to

unequivocally demonstrate the evidentiary merits of the malpractice claim . . . and

may rest upon evidentiary conclusions. . . .’” The trial court concluded its order as

follows:

      With the deposition and affidavit of their expert witness, the
      [Thompsons] have carried their burden of proof on a motion to dismiss
      under OCGA § 9-11-12 (b) (1) by showing sufficient evidence of
      [DOT’s] malpractice in order to indicate a waiver of sovereign
      immunity. As Herman Hill’s testimony, which supports [the
      Thompsons’] claims, is the only evidence before the [c]ourt, [the
      Thompsons] have shown their claims are not frivolous. . . .


      The trial court made two errors in evaluating DOT’s motion to dismiss. First,

in finding the Thompsons’ claims “not frivolous,” and noting the more relaxed

“requirements” of an expert affidavit, the trial court improperly based its ruling on the

standard used when considering a motion to dismiss a complaint for professional

                                           13
malpractice pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim on the

ground that the expert affidavit filed in accordance with OCGA § 9-11-9.1 was

insufficient, which was not the basis for DOT’s motion. As our cases make clear,

however, the affidavit required by OCGA § 9-11-9.1 is an initial pleading

requirement, not an evidentiary requirement. See Bowen v. Adams, 203 Ga. App. 123

(416 SE2d 102) (1992) (“an expert affidavit which would be insufficient to satisfy the

evidentiary standards of OCGA § 9-11-56 may nevertheless be sufficient to satisfy

the pleading standards of OCGA § 9-11-9.1”). See also Porquez v. Washington, 268

Ga. 649, 652 (1) (492 SE2d 665) (1997) (discussing purpose of OCGA § 9-11-9.1,

which is to reduce the filing of frivolous malpractice suits, and noting that permitting

a plaintiff to amend an expert affidavit to meet the requirements of OCGA § 9-11-9.1

helps to insure that a complaint is not frivolous); 0-1 Doctors Mem. Holding Co. v.

Moore, 190 Ga. App. 286, 287 (1) (378 SE2d 708) (1989). That different standards

apply is emphasized by the fact that a complaint accompanied by a defective expert

affidavit is subject to dismissal for failure to state a claim under OCGA § 9-11-12 (b)




                                          14
(6), while a complaint that fails to establish a waiver of sovereign immunity is subject

to dismissal for lack of subject matter jurisdiction under OCGA § 9-11-12 (b) (1).6

      Second, the trial court improperly shifted the burden of proof to DOT when it

ruled that DOT had failed to put forth any “testimonial evidence in rebuttal at this

time.” As set out above, the burden is on the Thompsons to establish that DOT’s

conduct is excepted from sovereign immunity. See Balamo, 343 Ga. App. at 171 (1).

Indeed, to avoid application of immunity under OCGA § 50-21-24 (10), the plaintiff

“must submit expert testimony or other competent evidence to show that the plan or

design was not prepared in substantial compliance with generally accepted

engineering or design standards at the time such plan was prepared.” (Citations and

punctuation omitted.) Balamo, 343 Ga. App. at 171 (1). As DOT correctly notes in

its brief, the trial court was required to consider DOT’s motion under a preponderance


      6
         In its order, the trial court relied on Ga. Dept. of Transp. v. Dupree, 256 Ga.
App. 668 (570 SE2d 1) (2002), for the following proposition: If an OCGA § 9-11-9.1
“expert opinion is sufficient to demonstrate that the malpractice case is not frivolous,
then it should also be sufficient for a preliminary ruling to satisfy subject matter
jurisdiction.” 256 Ga. App. at 673 (1) (b). But, as we just explained, the standard
governing dismissal of a complaint for failure to state a claim based on an insufficient
expert affidavit is different than the standard governing dismissal of a complaint for
lack of subject matter jurisdiction on the ground of sovereign immunity. Accordingly,
to the extent this Court’s statement in Dupree conflates the two standards, it is
disapproved.

                                          15
of the evidence standard, with the burden of establishing the waiver of sovereign

immunity on the Thompsons. Because the trial court’s ruling on DOT’s motion to

dismiss was based upon incorrect legal standards, we vacate its order and remand the

case to the trial court for it to reconsider the motion under the proper legal standards.

See Coffey v. Fayette County, 279 Ga. 111, 112 (610 SE2d 41) (2005); City of Tybee

Island v. Harrod, 337 Ga. App. 523, 524-525 (788 SE2d 122) (2016).

      2. DOT’s remaining enumerations of error are rendered moot by our holding

in Division 1.

      Judgment vacated and case remanded. Barnes, P. J., and Mercier, J., concur.




                                           16
