Wаlter Yates Andrews, Jr. brought suit against the City of Macon (the City) and the Macon-Bibb County Water and Sewerage Authority (the Authority) to recover damages for injuries he sustained when a street collapsed under the front wheels of the van he was driving. The trial court granted the defendants’ motions for summary judgment, and Andrews appeals.
The material facts are not in dispute. The record reveals that on Saturday afternoon, July 5,1986, appellant was driving a van on Mercer University Boulevard in Macon when a hole opened in the pavement, causing his front wheels to sink into the сollapsed space. Appellant testified by deposition that there was no hole in the street or water on the pavement before the collapse, but that when he pulled his van from the hole water began gushing out and he could see water pipes in the open space. He recalled noticing repair work performed on the road а number of times over the years, but did not remember seeing any work done at or near the scene of the accident.
Jimmy Hamm, the Authority’s inventory clerk, testified that he visited the scene sevеral hours later and observed water standing in *746 the hole, but saw no gushing water or exposed pipes. He acknowledged that the Authority repaired a small crack in a nearby water main the following Monday, but stated that the leak resulting from the crack was not large enough to have caused water to run onto the road in the absence of the street collapse. Hamm also testified that during a period in which there was a large differential between the volume of water pumped and the amount billed to customers, the Authority had checked for leaks in the water system by using listening devices on water meters and hydrants, but that he could not recall whether this monitoring program was in effect at the time of the incident at issue. The Authority’s water рlant manager testified by affidavit that high-service pressure and high-service flow are monitored daily for the purpose of leak detection, and that his review of the records for July 5, 1986 disclosed no significant change in either indicator. He also stated that the Authority received no reports of water pipe breaks or leaks during July 1-5, 1986. Daisy Smith, the City employee responsible for recording reports and complaints regarding street repair, testified by affidavit that she had reviewed her records for the five-year period before the accidеnt and had found only one service request for a road patch in the vicinity of the accident, which was done on December 28, 1982. It is further undisputed that the street at issue was built and widened by the State but maintained by the City, and that the water lines under the road are composed of cast iron pipe between fifty and sixty years of age.
1. The City has moved this court to dismiss the appеal under the authority of Court of Appeals Rule 14 because appellant’s brief was filed one day late, whereas appellant asserts that his brief was postmarked on the duе date and thus should be deemed timely filed pursuant to Rule 4. The record reveals that appellant mailed the brief by certified mail, return receipt requested, on December 12, 1988, the lаst day for filing, and the brief was received in the clerk’s office and filed on December 13th. As there apparently was no postmark on the “transmittal envelope,” the City contends Rule 4 dоes not apply. However, appellant also submitted the affidavit of the postal clerk who postmarked the return receipt, in which he stated that the brief was mailed on Deсember 12th and that any failure to postmark the envelope was inadvertent. Under these circumstances, the motion to dismiss is denied.
2. Appellant first enumerates as error the trial cоurt’s grant of summary judgment to the City, contending that the City failed to pierce his allegations of negligent maintenance of the street and that a question of fact remains as to whether the City hаd constructive notice of the potential collapse.
“A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipаl street
*747
system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof
or
when such defect has not existed for a sufficient length of time for notice thereof to be inferred.” (Emphasis supplied.) OCGA § 32-4-93 (a); see
Kicklighter v. Savannah Transit Auth.,
In the case at bar there is no dispute that the City did not receive actual notice until after appellant’s аccident. Also, appellant testified that the hole did not appear until he drove over the spot where the street collapsed, and that there was no water in the street or any other condition to put him on notice that a potential hazard existed. Although appellant argues that the frequency of repairs performed on this street constitutеd constructive notice, the evidence is devoid of any indication that repairs of the street or the water main previously had been performed at or near the site of аppellant’s accident, or that any similar defects or incidents had occurred. While the question of constructive notice is ordinarily one for the jury,
McKay,
supra at 801, in the absence of
any
evidence as to construсtive notice there is no reasonable ground for two opinions, and thus the issue of negligence is a matter of law, not a question of fact for the jury.
C. W. Matthews Contracting Co. v. Marasco,
3. Appellant next contends that the trial court erred by awarding summary judgment to the Authority because a material fact question remains as to whether the Authority exеrcised ordinary care in inspecting and maintaining its sixty-year-old cast iron water lines. Specifically, appellant argues, given Hamm’s testimony regarding the monitoring of water meters and hydrаnts, a jury should determine whether the Authority should have used that procedure to detect the leak under Mercer University Boulevard, and whether its failure to discover the leak constituted аctionable negligence.
Before a plaintiff may recover in a negligence action there must first be a “ ‘legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of
*748
harm .... [Cit.]’ ”
Bradley Center v. Wessner,
4. Appellant also contends that the trial court erred by ruling on the summary judgment motions without first unsealing certain depositions filed of record. However, as appellant has cited to us no deposition testimony which raises a genuine issue of material fact, and our review of the testimony discloses no such factual dispute, this enu
*749
meration of error is without merit.
Murphy v. First Nat. Bank,
Judgment affirmed.