IN THE SUPREME COURT
STATE OF GEORGIA
SHEILA FORTNER, Petitioner,
vs.
OGEECHEE RAILWAY, Respondent.

BRIEF OF THE AMICUS CURIAE COMMITTEE OF THE

GEORGIA TRIAL LAWYERS ASSOCIATION

I. IDENTITY AND INTEREST OF AMICUS CURIAE

Georgia Trial Lawyers Association (“GTLA”) is a voluntary organization composed of some 2,700 Georgia attorneys. Many people injured at grade crossing accidents, whether members of the train crews or the local citizens, are represented by members of the GTLA. GTLA is appearing as amicus curiae before this Court in support of Sheila M. Fortner’s Petition for Writ of Certiorari in two related cases, Fortner v. Ogeechee Railway, Application No. S03C1788, and Fortner v. Town of Register, Application Number S03C1782. This amicus brief is submitted by the GTLA in support of both petitions because the Court of Appeals decision will not only substantially erode the ability of injured Georgians to recover for damages, the decision will result in additional injuries and deaths.

 

II. ARGUMENT AND CITATION OF AUTHORITY

Georgia law asks precious little of railroad companies and local governments when it comes to grade crossing safety. At the base of what minimal matter our laws asks, however, is that a driver be able to see an approaching locomotive in time for the driver to make a safe stop to avoid being struck. The Court of Appeals’ ruling, if allowed to stand, will wrongly and dangerously erase even that minimal obligation. Fortner is premised on a nest of other Court of Appeals rulings which have never received a comprehensive review by this Court. Just as a critical mass of questionable rulings from the Court of Appeals spurred this Court to issue Robinson v. Kroger Company, 268 Ga. 735, 493 S.E.2d 403 (1997), so, too, in the area of grade crossing and nuisance litigation has a group of un-reviewed Court of Appeals rulings amassed that is ripe for review. The GTLA respectfully asks the Court to do as it did in Robinson,, and accept certiorari for these cases to clarify our guiding appellate decisions and make the railroad crossings in our state safe.

A. FORTNER WRONGLY RELIEVES RAILROAD COMPANIES AND LOCAL GOVERNMENTS OF LIABILITY FOR VEGETATION THAT CREATES A HAZARD AT GRADE CROSSINGS

 The Court of Appeals in Fortner held that “the failure to maintain the railroad right of way ... is addressed by ... O.C.G.A. § 32-6-51. Fortner did not show that the vegetation violated any statutory provision, and she is therefore barred from recovery against Ogeechee.” Fortner, 2003 WL 21544209, *3. The Court of Appeals used the same rationale to bar Ms. Fortner’s claim against the Town of Register. The statute relied upon by the Court of Appeals, O.C.G.A. 32-6-51(b)(3), provides that:

It shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which ... [o]bstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads ... .

O.C.G.A. § 32-6-51(b)(3) (emphasis added).

By insisting that Ms. Fortner point to some statutory provision that was violated by the vegetation, the Court of Appeals wedded itself far too strongly to the notion that an act must first be illegal to render the actor liable. Such is not the law of this state. Whether an act is permitted by law or not is only the beginning of the inquiry. The common law looks to whether a party “‘committed an act which created the dangerous condition’” regardless of whether the act is statutorily prohibited. City of Douglasville v. Queen, 270 Ga.770, 776, 514 S.E.2d 195, 200 (1999) (Hines, dissenting) (quoting Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 427, 249 S.E.2d 224 (1978)).

In addition, the Court of Appeals’ interpretation of O.C.G.A. § 32-6-51 violated several basic canons of statutory construction. First, the Court of Appeals failed to interpret O.C.G.A. § 32-6-51in pari materia, that is, in concert with other, related statutes. See Mathis v. Cannon, 276 Ga. 16, 26, 573 S.E.2d 376, 384 (2002). Similarly, the court’s ruling violated the maxim that a statute should not be interpreted in a manner that renders other statutory language meaningless surplusage. Preston v. Georgia Power Co., 227 Ga.App. 449, 455, 489 S.E.2d 573, 579 (Ga.App.,1997). The interpretation also improperly runs contrary to the expressly stated legislative intent of the underlying law, as well as the principle that laws “intended to promote the public safety should receive a reasonable and practical interpretation to that end.” Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga.App. 297, 300, 208 S.E.2d 258, 261 (1974), citing, Smeltzer v. Atlanta Coach Co., 44 Ga.App. 53, 56, 160 S.E. 665. See also Johnson v. State, 276 Ga. 57, 65 , 573 S.E.2d 362, 368 (2002) (“The primary rule of statutory construction is to construe statutes so as to effectuate the legislative intent.”) The Fortner court’s failure to abide by these maxims is a fatal mistake that renders the opinion reversible.

Most importantly, Fortner failed to interpret O.C.G.A. § 32-6-51 in concert with related statutes. One of the primary statutes ignored by Fortner was O.C.G.A. § 32-6-190. Under this latter statute, railroad companies have “a duty to maintain ... grade crossings in such condition as to permit the safe and reasonable passage of public traffic.” O.C.G.A. § 32-6-190. This purposefully broad language properly places primary responsibility for crossing safety in the lap of the entity that indisputably has the greatest expertise in grade crossing safety, railroad companies. Critical to this obligation is the obvious requirement to maintain reasonable lines-of-sight so that automobile drivers can see oncoming trains in time to make the decision to stop or proceed in a safe and prudent manner. Permitting a railroad company to grow vegetation on the right of way that blocks the view of oncoming trains, as did the Court of Appeals in Fortner, virtually nullifies the obligations imposed under O.C.G.A. § 32-6-190.

It is reasonable to ask railroads to maintain clear lines of sight for the entire breadth of their right of way, since trains are allowed to proceed through our towns and cities at speeds that bear no relation to the congestion or surrounding populace. The speed of trains through grade crossings is governed solely by the physical layout of the track (e.g., how straight or banked or curved or level the tracks are).1

Furthermore, interpreting O.C.G.A. § 32-6-51 as requiring a railroad to maintain a safe line-of-sight (free of vegetation) for drivers is consistent with three other related statutes, O.C.G.A. §§ 46-8-190, 48-6-140, and 46-8-290. Under O.C.G.A. § 46-8-190, “the engineer ... shall otherwise exercise due care in approaching the crossing, in order to avoid doing injury to any person or property which may be on the crossing or upon the line of the railway at any point within 50 feet of the crossing.” Railroads are obviously on notice of this requirement. With that knowledge, if railroad companies allow vegetation to grow – or place any other obstruction in the right of way – that prevents an engineer from being able to see persons at least to the limits of the railroad’s right of way and preferably to fifty feet, then surely such sight obstruction constitutes a violation of law for which it should be held liable. Under Fortner, this imminently logical reading of O.C.G.A. § 46-8-190 is rendered impossible.

Similarly, under O.C.G.A. § 40-6-140, Georgia law requires that, “Whenever any person driving a vehicle approaches a railroad grade crossing, such driver shall stop within 50 feet but not less than 15 feet from the nearest rail of such railroad and shall not proceed until he can do so safely, when ... [a]n approaching train is plainly visible and is in hazardous proximity to such crossing.” O.C.G.A. § 40-6-140 (emphasis added). This statute is relevant in two respects. First, the legislature did not need to add the word “plainly,” but chose to do so. As such, under the previously enunciated standard for interpreting every word in a statute as carrying weight, the word “plainly” should be given the full force of its meaning. If the view of an oncoming train is only partial or is obstructed in any way, then the plain language of the statute means that a driver’s duties are not invoked. Whether a driver’s view is clear so that the train is “plainly” visible depends most often on whether the railroad’s right of way has been cleared of vegetation or other sight obstructions. Any ruling that undercuts a railroad company’s obligation to maintain its right of way so that oncoming trains are “plainly visible” wrongly negates the obligations imposed by this statute and renders grade crossings less safe than the legislature meant them to be.

In addition, O.C.G.A. § 40-6-140 is remarkable because it shows, contrary to modern myth, that Georgia law imposes no absolute requirement for drivers to stop at all crossings. Drivers need only stop in favor of a “plainly visible” train in hazardous proximity. The legislature is presumed to know that drivers need a period of time to perceive and react to a hazard. The legislature also knows that automobiles do not stop on a dime but, instead, require a good distance to come to a rest after the brakes are first applied. As such, the only reasonable construction of the statute consistent with known laws of physics is that the approaching train must be “plainly visible” in time for a driver to perceive it, respond to its presence and bring the vehicle to a stop. In order for that to happen, in order for the law to be complied with, a railroad company cannot allow vegetation to grow on its right of way so that it blocks – even partially – the view of an oncoming train.

Finally, O.C.G.A. § 46-8-290 also supports the contentions of Ms. Fortner and undercuts the ruling of the Court of Appeals. Under that statute, a railroad company is liable when someone is injured or her property is damaged due to the “carelessness, negligence or improper conduct of any railroad company ... .” O.C.G.A. § 46-8-190. Again, the legislature could have used only the word “negligence.” It did not, however. The law specifically provides that liability also attaches when the injury or damage is due to “carelessness” or “improper conduct.” In order for the words “carelessness” and “improper conduct” to be given meaning, they must be interpreted to expand beyond the meaning of the word “negligence.” Wherever the lines are drawn to define the railroad company’s liability, they should be drawn to encompass a greater area than those embraced by mere negligence. The language could most reasonably be read to convey a legislative intent that a railroad’s duties with respect to the safety of the public are to be read extremely expansively.2 Contrary to Fortner, there could be no duty more naturally associated with these obligations than providing adequate lines of sight at grade crossings by clearing all vegetation and other obstructions.

The duties imposed under each of these statutes are erased under Fortner’s interpretation of O.C.G.A. § 32-6-51. Two alternative reasonable interpretations of the statute could have been made, either of which would render O.C.G.A. § 32-6-51 in better harmony with the related statutes than the interpretation under Fortner. The first interpretation is that the vegetation is unauthorized under O.C.G.A. § 32-6-190. Such an interpretation recognizes and reinforces the obligations imposed by 32-6-190, while maintaining the basic interpretation provided for 32-6-51 followed by the Court of Appeals for several years.

An even more reasonable interpretation would be to find that O.C.G.A. § 32-6-51 does not cover vegetation. This interpretation is supportable for two reasons. First, vegetation is not mentioned by name in the statute. It is included under the statute’s rubric only by a strained interpretation of the phrase “other structure.” This interpretation violates a standard maxim of statutory interpretation in that “vegetation” is of a substantially different character than the items specifically enumerated as being covered by the statute. Second, the statute’s framework is designed for covering buildings and signs and other such manmade structures which are, in their normal course, authorized by a law or permit. Extending that same framework to vegetation simply does not work and should not be condoned.

Under the principle of ejusdem generis, where “‘certain acts are specified which are followed by a general expression referring to other acts, such other acts must be of like character with those named.’” Little v. City of Lawrenceville, 272 Ga. 340, 528 S.E.2d 515 (2000), quoting, Ga. Board of Chiropractic Examiners v. Ball, 224 Ga. 85, 89(1), 160 S.E.2d 340 (1968). Applying this principle to O.C.G.A. § 32-6-51, the Court should look to the items specifically enumerated in the statute as being covered by the statute, “sign, signal, device,” to interpret the general term of enlargement, “other structure,” which the Fortner court held to include vegetation.3 All of the individually named items are manmade. All are erected or constructed. None are naturally occurring. On an SAT, if “sign, signal and device” are listed as comprising a group of similar items, and the student is required to choose from a number of other items which should be included in this group, can there be any doubt that selecting “vegetation” is almost assuredly the wrong answer?

Also providing assistance in deciding whether the word “structure” includes vegetation is the fact that the word “structure” is used throughout the Georgia Code. Virtually nowhere else does it have a connotation that includes vegetation.4 It almost uniformly refers to a manmade object, usually a building. Indeed, it would take the most unpoetic, counterintuitive vision to consider a tree or other vegetation as being a “structure.”

Finally, the words vegetation, trees or plants are clearly known to the legislature. Indeed, “vegetation” is used in other statutes within the same article. See O.C.G.A. §§ 32-6-75, 32-6-75.1, and 32-6-75.3. The legislature’s decision not to use the word in this location provides additional support for the conclusion that “other structure” should not be interpreted to include vegetation.

Given the fact that the statute specifically addresses signals, signs, bus stops and other manmade objects; given the legislature’s use of the term “structure” repeatedly and consistently elsewhere in the Code to refer only to manmade objects; and given the legislature’s failure to use the term vegetation (or similar words); the most reasonable interpretation to give “other structure” under the principle of ejusdem generis is man made and erected things. It should not be read to include vegetation.

O.C.G.A. § 32-6-51 should not apply to vegetation for the additional reason that the statute implicitly relies upon the system of governmental regulation of buildings and similar structures, which does not apply to plants. In particular, O.C.G.A. § 32-6-51 imposes its restrictions only upon “any unauthorized sign, signal, device, or other structure.” (emphasis added) The Court of Appeals found that the vegetation growing in the railroad’s right of way was not “unauthorized” and, therefore, did not give rise to any liability. With all due respect, this analysis is the equivalent of forcing square pegs into round holes. Buildings, signs, signals and similar “structures” usually require permits and their erection is carefully regulated by zoning, permits, ordinances, statutes or other such regulations. The use of the word “unauthorized” in O.C.G.A. § 32-6-51(b) applies naturally and easily in this context. If the building is not properly permitted or the sign violates some zoning regulation or the traffic signal is used inconsistently with a code requirement, then it is easily understood to be “unauthorized” and subject to the restrictions of O.C.G.A. § 32-6-51.

However, such is not the usual case for vegetation, which is rarely planted or grown under the auspices of any permitting or zoning process. As a result, the framework of the statute predictably fits horribly when applied to vegetation. It is simply rare that a plant is “unauthorized” as that term is used in O.C.G.A. § 32-6-51. Not surprisingly, then, Fortner and its judicial forebears5 rarely find vegetation to be “unauthorized” so as to constitute an illegal hazard under the statute even when the vegetation poses an obvious and palpable danger as was the case for the vegetation that blocked Ms. Fortner’s husband’s view of the train that killed him. The Court of Appeals misapplication of O.C.G.A. § 32-6-51 to vegetation improperly shields the person responsible for the vegetation from liability. This dangerous interpretation should be reversed.

Reversing Fortner on this issue will not suddenly free property owners to grow vegetation in ways that create a hazard. Most importantly in that regard, the line of cases cited by Fortner shows that the Court of Appeals has never interpreted the law in a way that promotes safe growth of vegetation, but has instead consistently read the law as permitting vegetation to grow in patently unsafe manners. Furthermore, if the Court takes up and reverses this line of cases, then the common law obligations will be resurrected to cover those circumstances under which vegetation that a reasonable person would appreciate creates a hazard would be (once again) improper.

Finally, the Court of Appeals in Fortner made a point of noting that its interpretation of O.C.G.A. § 32-6-51 was “broader” than that suggested by Ms. Fortner. Fortner, 2003 WL 21544209, at *2. Where a statute is aimed at promoting public safety, interpreting the statute broadly to further that goal is more than appropriate, it is a required canon of statutory construction. See Northwestern Mut. Life Ins. Co. v. McGivern, 132 Ga.App. 297, 300, 208 S.E.2d 258, 261 (1974). Here, however, the Court of Appeals interpreted a statute broadly to limit or frustrate public safety. Moreover, such an interpretation wrongly runs contrary to the stated legislative purpose. See Johnson v. State, 276 Ga. 57, 65 , 573 S.E.2d 362, 368 (2002). As noted in Fortner, O.C.G.A. § 32-6-51 was enacted in 1973 as part of the Georgia Code of Public Transportation (“GCPT”). The GCPT was created “so that the safety ... of the various modes of public transportation and the public will be promoted and served.” 1973 Ga.Laws. 947. The enabling legislation specifically directs that the law “shall be construed liberally to effectuate its purposes.” 1973 Ga.Laws 959. With all due respect, the Court of Appeals turned this maxim on its head, “liberally construing” the statute to defeat its underlying purpose and relax the burden on those responsible for safety at grade crossings.

B. FORTNER WRONGLY RELIEVES RAILROADS OF RESPONSIBILITY FOR DETERMINING NEEDED WARNING DEVICES AT GRADE CROSSINGS

Fortner also extends another line of cases from the Court of Appeals that bears review by this Court. These cases trace their roots to Evans Timber Co. v. Central of Georgia Railroad Co., 239 Ga.App. 262, 519 S.E.2d 706 (1999). Under that decision, the entities with the most knowledge about grade crossings, the railroad companies, are totally relieved of all obligations for assessing the need for any particular safety device at a grade crossing. Instead, the Court of Appeals interpreted O.C.G.A. § 32-6-200 as saddling our local governments – from Hihara to Calhoun to Elberton to Darien – with this obligation. This reading of the applicable statute seriously endangers our state’s citizens. Moreover, the interpretation given by the Court of Appeals in Evans Timber and as adopted again in Fortner is neither mandated by the language of the statute nor by the need to promote safety and should be reversed.

Anyone with even a passing familiarity of the relationship between local governments and railroads knows that the relationship could frequently be characterized as strained, to put it mildly. Local elected officials and their county or municipal counsel often find their requests to railroad companies falling on deaf ears. Indeed, the term “railroaded” did not come out of thin air. This was especially true with respect to requests for installation of active warning devices at grade crossings. O.C.G.A. § 32-6-200 attempts to remedy this problem. Under the plain meaning of the language, railroads now must erect warning devices as requested by local governments. The political compromise in crafting this law was clearly in the funding of these projects, with the local governments having to foot a substantial portion of the bill. The local governments now can have a say in the safety devices at grade crossings, but the financial burden of those requests must be borne by the locality’s constituents (to the extent that funding is not provided through a federal program).

In creating the statute, the legislature was well aware that many, if not most, of the towns and cities scattered across our state do not have employees with the expertise and knowledge to analyze railroad crossings. Such analysis requires an understanding of engineering and railroads that is clearly beyond many, if not most, municipalities of this state. Our legislators have their roots in the local governments across our state. They know that filling the potholes and fixing broken traffic lights already taxes the limits of the manpower and expertise of the public works departments of most municipalities. They also know that these departments are not staffed with engineers who have spent their lives studying grade crossing structures, sight distance calculations and similar such critical information, such as may typically be found among the personnel of most railroad companies. The Court of Appeals ignored this critical piece of common knowledge in ruling as it did in Evans Timber, placing the public at great peril and frustrating the stated legislative purpose of the GCPT.

In order to remove responsibility from railroad companies for identifying the proper warning devices at grade crossings, Evans Timber misrepresents the statute’s legislative intent. In particular, the Court lifted a misleadingly incomplete quotation from the prefatory language used by the state legislature when it adopted what is now at O.C.G.A. § 32-6-51. Evans Timber and Fortner fail to include the first words of that preface which state that the law is designed to “revise, classify, consolidate, and repeal Title 95, Code of Georgia of 1933, as amended, and other laws relating to all public roads, bridges and ferries and other modes of transportation in the state ... .” (emphasis added). The plain language of this passage shows that the statutory revision was aimed at preempting only the prior statutory language. Nowhere does the prefatory language state that common law obligations are repealed.

Thus, the Court of Appeals was incorrect in determining that “‘[t]he GCPT precludes a common-law cause of action against a railroad for the failure to install adequate protective devices at a grade crossing on a public road where the railroad has not been requested to do so by the appropriate governmental entity.’” Fortner, 2003 WL 21544209, at *4, quoting, Evans Timber, 239 Ga.App. At 266, 519 S.E.2d at 706. Even ignoring the Court of Appeals’ misreading of the GCPT’s prefatory language, just because a statute touches upon or even governs a particular act does not mean that the statute provides the exclusive rights and remedies for injuries that might arise. “The common-law rule is still of force and effect in this State, except where it has been changed by express statutory enactment or by necessary implication.” Robeson v. International Indem. Co., 248 Ga. 306, 307, 282 S.E.2d 896, 897 (1981), citing, Heyman v. Heyman, 19 Ga.App. 634, 92 S.E. 25; Hubbard v. Ruff, 97 Ga.App. 251, 253, 103 S.E.2d 134. See also Crosson v. Lancaster, 207 Ga.App. 404, 405, 427 S.E.2d 864, 866 (1993), citing, First Ga. Bank v. Webster, 168 Ga.App. 307, 308-309(1), 308 S.E.2d 579 (1983). (“A common law tort action based on negligence may sometimes lie even where the transaction is one governed by the U.C.C., because the U.C.C. does not purport to preempt the entire body of law affecting the rights and obligations of parties to a commercial transaction.”)

Neither the statute nor the prefatory language states that O.C.G.A. § 32-6-200 limits a claim of an injured citizen related to allegedly inadequate warnings at grade crossings to the relevant local government. By way of contrast, the state legislature clearly and expressly declared the dram shop statute to provide the exclusive remedy for injured citizens. See Kappa Sigma Intern. Fraternity v. Tootle, 221 Ga.App. 890, 893, 473 S.E.2d 213, 215-216 (1996) (“OCGA § 51-1-40(a) provides that ‘[t]he General Assembly finds and declares that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.’ (Emphasis supplied.)”) The fact that the statute grants localities the right to insist upon installation of a particular device does not mean that railroads are relieved of responsibility for insuring that proper warning devices are installed regardless of the action or inaction of the local government.

Finally, the interpretation of O.C.G.A. § 32-6-200 given by Fortner and Evans Timber is at odds with the statute’s plain language and conflicts with related statutes. The “plain language” of O.C.G.A. § 32-6-200 provides local governments with the right, but not the obligation, to demand installation of warning devices. The statute specifically states that local governments “may” request warning devices to be placed at grade crossings (as long as they bear their statutorily dictated share of the costs of those improvements). O.C.G.A. § 32-6-200(a). The legislature did not use the mandatory verb “shall” to describe local government’s actions, but instead used the permissive verb “may,” making clear that local governments are not intended to be the sole arbiter of what warning devices are needed. Moreover, nowhere does that language relieve railroad companies of their obligations under O.C.G.A. § 32-6-190 to do whatever is necessary to make grade crossing safe, which logically includes assessing the need for warning devices. The interpretation proposed by GTLA restores logic to this statute, renders it in harmony with the related statutes and enhances the legislature’s stated goal of promoting public safety. Whenever “there is a consistent and harmonious alternative” interpretation of a statute, it should be adopted over a more extreme alternative. Dean v. Gober, 272 Ga. 20, 25, 524 S.E.2d 722, 726 (Ga.,1999) (Carley, dissenting).

At bottom, Fortner is frightening and illogical. It is cold comfort for our citizens to be told that “[a] railroad can ... certainly be liable under the common law negligence principles for activities or negligence not covered by the GCPT, or ‘other negligent conduct by the railroad.’” Fortner, 2003 WL 21544209, *4 (Ga.App. 2003). Under Fortner, a railroad is permitted to erect a wall of vegetation leading up to the railroad tracks that totally blocks the view of any oncoming train. Not even the most ardent supporter of railroad companies among our legislators would dare to admit responsibility for such a statute. “[S]tatutory construction ‘must square with common sense and sound reasoning.’” City of Atlanta v. Miller, 256 Ga.App. 819, 820, 569 S.E.2d 907, 908 - 909 (Ga.App.,2002), quoting, Tuten v. City of Brunswick, 262 Ga. 399, 404(7), 418 S.E.2d 367 (1992). This Court needs to accept the petition so that “common sense and sound reasoning” are restored in the area of grade crossing litigation.

 III. CONCLUSION

Georgia already has a dismal record of safety at railroad crossings. In 2001, the latest year for which the Federal Railroad Administration has published its annual report, Georgia had: more crossing accidents than any of its neighboring states; more deaths from grade crossing accidents than any of its neighboring states; and more non-fatal grade crossing accidents than any of its neighboring states. 6

With all due respect, if the Court of Appeals decision in City of Register v. Fortner is allowed to stand, those statistics will needlessly worsen. Under this unwarranted, illogical and dangerous ruling, railroad companies will be allowed to grow vegetation (or erect virtually anything else) that obstructs a driver’s view of oncoming trains. The local governing authorities will take no responsibility to ensure that their areas of responsibility are addressed. We ask, therefore, that the Court accept Ms. Fortner’s petition so that it can redress the problems created by the Court of Appeals.

The nest of Court of Appeals decisions out of which Fortner grew, “[a]s a group, ... are suspect for a number of reasons.” Robinson v. Kroger Company, 268 Ga. 735, 739, 493 S.E.2d 403, 408 (1997). This case presents the Court with a unique opportunity to right the ship and correct a growing line of precedents that truly puts the public at peril. Our railroad companies should not be permitted to check their expertise at the border and run their trains with near abandon through grade crossings that they know are dangerous and in need of more protective warning devices. No railroad should be permitted to allow vegetation to grow or permit any other visual obstruction that prevents approaching drivers from seeing oncoming trains in time to take the appropriate action to avoid a collision. Similarly, our cities and towns should appreciate their role in controlling hazards to the citizens. Each of these principles is at risk unless this Court accepts Ms. Fortner’s petition, which the GTLA urges the Court to do.

Respectfully submitted this 13th day of November, 2003.

 /s/ A. THOMAS STUBBS

/s/ JOHN M. HYATT

 Suite 720

755 Commerce Drive

Decatur, Georgia 30030

(404) 378-3633

1. While the GTLA does not concede the correctness of this interpretation, the Court should note that most courts have concluded that train speed is restrained only by the physical layout of the tracks under CSX Transportation, Inc., v. Easterwood, 507 U.S. 658,l 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). That is, railroad tracks which are straight and flat are classified by the Federal Railroad Administration (FRA) as permitting trains to pass at higher speeds compared to train tracks that are curved and/or sloped. The maximum rated speed is purely a function of the track’s layout, and has nothing to do with whether the train is traveling through rural open fields or through a congested downtown at peak rush hour. Under Easterwood, most courts have found that the only relevant speed limit for a train is the speed that the FRA rated the track.

2. If “improper conduct” is interpreted to mean “contrary to law,” then that phrase is rendered surplusage since, obviously, the applicable law already covers the situation. Similarly, “carelessness” must impose a burden even greater than negligence, since negligence is already listed.

3. GTLA is mindful that “the principle ‘does not control ... when the whole context dictates a different conclusion,’ or if there is no ‘ambiguity in the statute.’” Department of Transp. v. Montgomery Tank Lines, Inc., 276 Ga. 105, 107, 575 S.E.2d 487, 489 (2003). However, such is not the case here. The language of O.C.G.A. § 32-6-51, and the context of all the surrounding statutes, evince no such broader reading, addressing instead the removal of mechanical and otherwise manmade devices.

4. Among other ways that the term “structure” is used, the legislature has used it in connection with the definition of: buildings (see O.C.G.A. §§ 2-10-2, 2-10-52, 8-2-202, 8-2-111, 8-3-201, 10-4-2, 12-5-232, 16-6-17, 16-7-80, 25-11-2, 30-3-2, 31-41-12, 36-67A-1, 41-2-8, 43-4-1, 46-3-3); dog pens (see O.C.G.A. § 4-8-21); manufactured homes (see O.C.G.A. §§ 8-2-160, 8-2-131); stables for horses (see O.C.G.A. § 4-11-2); mauseleums and columbariums (see O.C.G.A. § 10-14-3); bridges (see O.C.G.A. §§ 32-1-3, 32-10-1, 32-10-60); the system of pipes that comprise the public water supply (see O.C.G.A. § 43-51-2); gates erected in front of caves (see O.C.G.A. § 12-4-142); and cubical cages for catching crabs (see O.C.G.A. § 27-1-2(14)).

5. As noted earlier, the holding in Fortner in this regard this is an extension on an unfortunate accumulation of prior decisions in the same vein all of which bear scrutiny. See Howard v. Gourmet Concepts International, 242 Ga.App. 521, 529 S.E.2d 406 (2000), United Refrigerated Services v. Emmer, 218 Ga.App. 865, 463 S.E.2d 535 (1995), Smith v. Hiawassee Hardware Co., 167 Ga.App. 70, 305 S.E.2d 805 (1983).

6. In 2001, Georgia had 116 crossing accidents compared to 94 for Florida, 89 for Alabama, 78 for Tennessee, 62 for North Carolina, and 57 for South Carolina. In that same year, Georgia had 16 fatalities as a result of grade crossing accidents compared with 10 for Tennessee, 9 for Florida, 8 for Alabama, 4 for South Carolina and 2 for North Carolina. Georgia had 50 non-fatal grade crossing accidents compared with 35 for Tennessee, 28 for Florida, 23 for Alabama, 21 for South Carolina, and 17 for North Carolina. Federal Railroad Administration, Railroad Safety Statistics: Final Report 2001 (July, 2003), at Table 8-1.