Rossell v. State ex rel. Oklahoma Department of Transportation

MEMORANDUM OPINION

CAROL M. HANSEN, Presiding Judge:

¶ 1 PlaintiflyAppellant, Shelia Elaine Ros-sell, 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).1 Rossell sued ODOT and others for negligence after her husband, Bill Rossell (Decedent), was killed in an automobile accident. According to Rossell’s amended petition, Decedent was driving eastbound on U.S. Highway 412 in Balko, Beaver County, Oklahoma, when he attempted to pass a vehicle driven by Defendant, Gary Wayne Wright. The highway markings consisted of a broken center line, and there was no sign warning of an intersection. Rossell alleges that as Decedent was passing, Wright attempted a left turn, without signaling, onto a county road causing the accident which resulted in Decedent’s death. She alleges ODOT was negligent in (1) failing “to reasonably assess the conditions at the site of the accident to determine the propriety of marking the site as a proper site to pass,” (2) failing “to act in a reasonable and prudent manner to notify [Decedent] of the existence of an intersection at the site of the accident,” and (3) “creating an unreasonable danger in marking the site *377of the accident as a location where passing is permitted.”

¶2 ODOT moved to dismiss or in the alternative for summary judgment on the grounds it was immune from liability on Ros-sell’s claim pursuant to the Governmental Torts Claims Act, 51 O.S.Supp.1994 § 155(15), which provides,

The state or a political subdivision shall not be liable if a loss or claim results from:
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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 51 O.S.Supp.1994 § 155(15) was inapplicable. She argued “the lane line which signifies that passing is permitted was wrong” because passing within 100 feet of an intersection is prohibited by 47 O.S.1991 § 11-306, and therefore ODOT’s action “cannot be within the discretionary function exception to the waiver of immunity.”

¶ 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 47 O.S.1991 § ll-307(a) “to determine those portions of any highway where overtaking and passing or driving to the left of the roadway would be especially hazardous and may by appropriate signs or markings on the roadway indicate the beginning and end of such zones.” It contended its decision whether to mark an area as a no-passing zone is discretionary and therefore within the acts exempted from liability under 51 O.S.Supp.1994 § 155(15). We agree.

¶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, 51 O.S.Supp.1994 § 155(15). Therefore, ODOT is immunity from liability for Rossell’s claim.

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

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

. Because 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.