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Diamond v. Department of Transp.

The DOT's waiver of immunity on one of the plaintiffs' claims did not work to waive immunity on the other claims.

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Christy and Jay Diamond each filed a negligence action against several defendants, including the Department of Transportation “DOT”. The DOT filed a motion to dismiss and for summary judgment in each case, arguing that certain claims were barred by the doctrine of sovereign immunity and that it owed no duty to the plaintiffs. The trial court dismissed the Diamonds’ claims of negligent inspection on sovereign immunity grounds and granted summary judgment to the DOT on the remaining claims, including the negligent failure to include adequate signs or other warning devices on the roadway and the negligent failure to construct the roadway so as to diminish the appearance of its being a functioning roadway, due to lack of duty.

We have combined the Diamonds’ appeals for purposes of this opinion. They argue that the DOT’s waiver of immunity on their negligent design claims also waived immunity on their negligent inspection claims. But we find that a waiver of immunity on one claim does not amount to a waiver of immunity on all claims. The Diamonds also argue that whether the DOT owed them a duty to notify them that the roadway was no longer operable is a fact question. But whether a party owes another a duty is a legal question. And the Diamonds have pointed to no statutory or case law authority demonstrating that the DOT owed them a duty in the circumstances of this case. We therefore affirm.

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