Rossell v. Oklahoma Department of Transportation

Rossell v. Oklahoma Department of Transportation
1999 OK CIV APP 41
977 P.2d 376
70 OBJ 1482
Case Number: 92053
Decided: 01/08/1999
Mandate Issued: 04/08/1999

RELEASE FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS;
IN THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA,
DIVISION NO. I.

SHELIA ELAINE ROSSELL, Plaintiff/Appellant,
versus
STATE OF OKLAHOMA, ex rel. OKLAHOMA DEPARTMENT OF TRANSPORTATION; WAYNE WRIGHT d/b/a SQUARE DEAL OIL FIELD SERVICE COMPANY; and GARY WAYNE WRIGHT, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
Honorable John M. Amick, Trial Judge.

AFFIRMED

Joseph J. Reinke, Oklahoma City, Oklahoma, For Plaintiff/Appellant,
James M. Robinson, Assistant Attorney General, Oklahoma City, Oklahoma, For Defendant/Appellee.

MEMORANDUM OPINION

CAROL M. HANSEN, Presiding Judge

¶1 Plaintiff/Appellant, Shelia Elaine Rossell, seeks review of the trial court's order granting summary judgment in favor of Defendant/Appellee, State of Oklahoma ex rel. Oklahoma Department of Transportation (ODOT).

¶2 ODOT moved to dismiss or in the alternative for summary judgment on the grounds it was immune from liability on Rossell's claim pursuant to the Governmental Torts Claims Act,

The state or a political subdivision shall not be liable if a loss or claim results from:

. . .

15. Absence, condition, location or malfunction of any traffic or road sign, signal or warning device unless the absence, condition, location or malfunction is not corrected by the state or political subdivision responsible within a reasonable time after actual or constructive notice or the removal or destruction of such signs, signals or warning devices by third parties, action of weather elements or as a result of traffic collision except on failure of the state or political subdivision to correct the same within a reasonable time after actual or constructive notice. Nothing herein shall give rise to liability arising from the failure of the state or any political subdivision to initially place any of the above signs, signals or warning devices. The signs, signals and warning devices referred to herein are those used in connection with hazards normally connected with the use of roadways or public ways and do not apply to the duty to warn of special defects such as excavations or roadway obstructions; . . .

In her objection to the motion, Rossell argued her claim was based upon ODOT's "mis-marking of the roadway" rather than "upon the failure to place a sign or control device," and therefore

¶3 In its response, ODOT argued a solid yellow line designates a "No Passing Zone," but the "absence of a solid yellow line does not authorize passing. It indicates the general rules apply." ODOT is authorized by

¶4 The lack of solid yellow lines marking the intersection where the accident occurred as a no-passing zone, as well as the lack of a sign marking the intersection, constitute the "absence, condition, location or malfunction of any traffic or road sign, signal or warning device" within the meaning of the Governmental Torts Claims Act,

¶5 Accordingly, the order of the trial court is AFFIRMED.

JONES, C.J., concurs; ADAMS, J., dissents with separate opinion.

ADAMS, J., Dissenting

¶1 I would dismiss this appeal as premature or at least require the parties to obtain an amended or new order from the trial court making an "express determination that there is no just reason for delay and . . . an express direction for the filing of a final judgment, decree, or final order" as required by

¶2 Lest I be accused of placing form before substance, it is important to note that the consequences of vague language in these types of orders can be significant. If the order is treated as one qualifying under § 994(A), a judgment has been entered and will become final if not timely appealed. An order certified under § 952(b)(3) is not a judgment and need not be immediately appealed. See

¶3 Section 994(A) was adopted to introduce certainty into determining when an appeal was required in cases involving multiple causes of actions and/or multiple parties. By its terms, this sections requires that we treat orders in such cases which do not purport to adjudicate all of the claims by and between all of the parties as not final unless the trial court has made the "express" findings and determinations required by the statute. We only exacerbate the uncertainty of determining when orders in these cases are final and appealable by giving less than literal application to the terms of the statute.

FOOTNOTES

1Because the order adjudicated the claims of fewer than all the parties, it is appealable pursuant to 12 O.S.Supp.1995 §994(A) only if the trial court expressly determines there is no just reason for delay and directs the filing of a final judgment. The language in the order certifying the issue for immediate interlocutory appeal will be deemed to satisfy this requirement.