Thе City of College Park sued 2600 Camp Creek, LLC, alleging that the private access road adjacent to Camp Creek’s apartment complex was a public nuisance, and demanding that the nuisance be abated. 1 The trial court found that the road was not a public nuisance as a matter of law and granted summary judgment to Camp Creek on the City’s claims. The City appeals. Finding that there remain material issues of fact, we reverse.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferencesdrawn from it, in the light most fаvorable to the nonmo-vant.
(Citations omitted.)
Matjoulis v. Integon Gen. Ins. Corp.,
So viewed, the evidence shows that Frontage Road connects Herschel Road with Camp Creek Parkway. The roаd provides the only vehicular access to Camp Creek’s Wynterbrook Apartments. Camp Creek owns the portion of Frontage Road abutting its apartment complex. The road is used by residents of Wynterbrook Apartments, other adjacent apartment complexes, emergency vehiclеs, and, due to its proximity to the airport, by the general public. The Metropolitan Atlanta Rapid Transit Authority (“MARTA”) had previously operated its buses along thе road, but at Camp Creek’s request rerouted operations following the filing of this lawsuit. After the City initiated this action, Camp Creek also attempted to сlose Frontage Road to the public access by gating the road. The City removed the gates and Camp Creek had not re-installed them when the trial сourt entered the order that is the subject of this appeal. 2
Frontage Road’s poor condition results from numerous potholes, uneven surfaces, broken cement, and other structural defects. The road’s poor condition causes a significant delay to police response time at the Wynterbrook Apartments, and many officers have reported that the road has damaged the tires on their squad cars. According to the City’s public wоrks director, the road is dangerous for pedestrians and unsafe for vehicular traffic. The City engineer describes vehicular travel along the road as difficult and burdensome.
As averred by the City’s police chief, the condition of the road “inhibits emergency vehicles traveling on the road, thereby placing the persons residing in the adjoining apartment complexes in . . . jeopardy.” According to the City’s fire marshal, the road’s gross disrepair requires large fire trucks to travel at a slower speed in times of emergency, and “[ajdding mere seconds to a fire response can greatly impact the outсome of an emergency situation.” The fire marshal also averred that the road in its current state of disrepair violates an applicable fire code allowing the marshal to require more than one access road to a “one-way-in, one-way-out” complex if the primary roаdway is subject to potential impairment. Evidence further shows that the residents of the Wynterbrook Apartments are in particular need of policе and fire services because the low occupancy rate of the facility makes it particularly “attractive to the homeless, gang aсtivity, drugs, and crime.”
At issue is whether the trial court erred in determining that, as a matter of law, Frontage Road is not a public nuisance. “A nuisance is anything that causеs hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisancе.” OCGA § 41-1-1. A public nuisance is “one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals.” OCGA § 41-1-2. In addition, a рublic nuisance requires “some act or omission which obstructs or causes inconvenience to the public in the exercise of rights common to all.”
Cox v. DeJarnette,
A trier of fact could conclude that the condition of Frontage Road so impedes the necessary passage of the City’s police, firе, and other emergency personnel as to significantly endanger the health and safety of those persons residing at or visiting the Wynterbrook Apartments аnd the other apartment complexes adjacent to the road. Significant interference with “the public health, the public safety, the public рeace, the public comfort or the public convenience” may support a finding of public nuisance. See Restatement (Second) оf Torts, §
Further, “[a] public nuisance exists if the act complained of affects rights which are common to all within a particular area.”
Atlanta Processing Co. v. Brown,
We find no merit in Camp Creek’s argument that Frontage Road cannot, as a matter of law, be a nuisance because it is located on private property and becausе the City has failed to demonstrate actual harm attributable to the road’s condition. That Frontage Road is not publicly owned does not prohibit a finding thаt it was
maintained as a public nuisance. See
Atlanta Processing Co.,
supra,
Cox,
supra,
Judgment reversed.
Notes
Camp Creek filed a counterclaim against the City for tortious interference with a prospective business relationship and inverse condemnation, among other claims.
Camp Creek has moved to dismiss the appeal on the grounds that the gates have again been installed and that any reversаl of the trial court’s judgment would be moot. Because Camp Creek fails to demonstrate that a reversal of the trial court’s judgment would have no benefit to the City, we deny the motion. See
McWhorter v. Greene,