MAYOR AND ALDERMEN OF the CITY OF SAVANNAH v. HERRERA Et Al.
343 Ga. App. 424
| Ga. Ct. App. | 2017Background
- Lisa Muse was severely injured when her car, while turning left from Lee Boulevard onto southbound White Bluff Road at a T-intersection in Savannah, was struck by a northbound pickup driven by Officer West. Muse cannot testify due to her injuries.
- Two large oak trees (one on the City’s right-of-way) partially or totally obstructed drivers’ views of oncoming traffic at the intersection; investigators and a reconstructionist found two blind spots and concluded a driver would have to nose past the stop bar into the northbound lane to see clearly.
- Evidence included prior complaints and observations: a Traffic Department director noted visibility problems in 1998, a 2007 crash report referenced tree-obstructed vision, and an anonymous complaint was made in late 2009. A City observer documented multiple near-misses after Muse’s crash.
- The City moved for summary judgment asserting sovereign immunity, lack of nuisance, lack of proximate cause (faulting speeding and lane changes by West and failure to yield by Muse), and avoidable-consequences. The trial court granted partial summary judgment on stop-bar placement but denied summary judgment on claims tied to the tree obstruction; the City appealed interlocutorily.
- The Court of Appeals affirmed denial of summary judgment as to the obstruction-based negligence and nuisance claims, holding questions of notice, causation, avoidable consequences, and nuisance were fact issues for a jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sovereign immunity / ministerial duty (street defect) | City’s failure to remove obstructing tree created a "defect in the public road" under OCGA §32-4-93 and thus municipal immunity is waived. | Removal/pruning of vegetation is a governmental function; sovereign immunity bars suit. | Waiver may apply; whether the tree was a statutory "defect" and whether City had notice are jury questions. |
| Notice (actual or constructive) | City had actual/constructive notice (1998 Traffic Dept. note, 2007 crash, 2009 complaint, observed near-misses). | Insufficient evidence of notice because only one prior documented crash tied to the defect. | Evidence was sufficient to create a jury question on actual or constructive notice. |
| Proximate cause / concurrent causation | Tree obstruction prevented timely visibility such that it was a proximate or concurring cause of the crash. | Crash was caused solely by West’s speeding/lane changes and Muse’s failure to yield; obstruction did not proximately cause the injury. | Proximate cause is for the jury; obstruction cannot be eliminated as a matter of law as a proximate or concurrent cause. |
| Avoidable consequences / plaintiff's knowledge | Even if Muse knew of obstruction and sometimes used alternate route, genuine issues exist whether she exercised ordinary care and could have avoided harm. | Muse knew of risk and could have used another (signalized) intersection; doctrine bars recovery. | Question of avoidable consequences is factbound; summary judgment denied. |
Key Cases Cited
- City of Tybee Island v. Harrod, 337 Ga. App. 523 (sovereign immunity is a threshold jurisdictional issue)
- Albertson v. City of Jesup, 312 Ga. App. 246 (distinguishing vegetation obstructing traffic-control devices as governmental function)
- City of Atlanta v. Mitcham, 296 Ga. 576 (municipal sovereign immunity and ministerial/legislative function distinction)
- Roquemore v. City of Forsyth, 274 Ga. App. 420 (municipal duty to keep streets safe; defects include adjacent obstructions)
- Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528 (objects adjacent to curb can be defects under statute; jury question)
- Town of Fort Oglethorpe v. Phillips, 224 Ga. 834 (defect in street concept distinguished vis-à-vis malfunctioning traffic signal)