MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH v. HERRERA et al.
A17A0649
In the Court of Appeals of Georgia
October 27, 2017
McMILLIAN, Judge.
FIRST DIVISION BARNES, P. J., MCMILLIAN and MERCIER, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
Lisa Nicolle Muse suffered incapacitating injuries when the car she was driving was struck as she was attempting to make a left hand turn at the intersection of White Bluff Road and Lee Boulevard in Savannah, Georgia. Ann J. Herrera, as conservator for Muse, and Gloria Fay Muse, as the guardian of Muse, (“Plaintiffs“) filed suit against, inter alios, the Mayor and Aldermen of the City of
contending that the City acted negligently in locating the painted stop bar at the intersection and acted negligently and created a nuisance by allowing the line of sight of motorists entering the intersection to be obscured by two large trees, one of which was located on the City‘s right of way.2 The City moved for summary judgment, contending that the negligence claims were barred by sovereign immunity; the acts alleged did not rise to the level of nuisance; the City‘s actions or inactions were not the proximate cause of the accident; and the claims were barred by the doctrine of avoidable consequences.3 The trial court granted the City‘s motion as to Plaintiffs’ claim based on the allegedly negligent placement of the stop bar, but denied the City‘s motion to the extent Plaintiffs’ negligence and nuisance claims were based on the obstruction in line of sight caused by the tree. The trial court included in its order a certificate of immediate review, and the City sought interlocutory review from this Court, which we granted.
We first set out the circumstances surrounding the accident.4 Lee Boulevard is a two lane public road that generally runs east to west, and White Bluff Road is a four lane road with two northbound and two southbound lanes divided by a median. Lee Boulevard and White Bluff Road intersect at several points, and the intersection where the accident occurred is on the westerly end where access from Lee Boulevard onto White Bluff Road is controlled by a stop sign at a three-way “T” intersection (the “Intersection“). Drivers on Lee Boulevard attempting to access the southbound lanes of White Bluff Road are required to stop at the stop sign, traverse the two northbound lanes of White Bluff Road, and then turn left.
Two large oak trees, one of which is on the City‘s right of way, were situated to the left of the driver along the side of the roadway at the Intersection. According to several witnesses who had traveled through the Intersection, the line of sight of a driver looking left toward the northbound lanes was obstructed by the oak trees sitting at the edge of the roadway, although the degree of obstruction varied depending on the vantage point of the driver traversing the Intersection such that the obstruction might be total or near total at some points but only partial at other points. And, tests conducted at the scene by investigating officers using vehicles similar to those involved in the accident demonstrated there were two blind spots along the Intersection and that a car traveling from Lee Boulevard would have to “ease up” past the stop bar and intrude into the right northbound lane of White Bluff Road in order to have an unimpeded view. Further, evidence was also presented that drivers traveling northbound on White Bluff Road had difficulty seeing cars stopped at the Intersection because of the trees.
At the time of the accident, Muse, who had approached the Intersection from Lee Boulevard, was attempting to cross over the two northbound lanes of White Bluff Road in order to turn left onto the southbound lanes. However, as she pulled into the northbound lanes, her 2003 Honda Accord Coupe was struck on the driver‘s side by the 2001 Chevrolet Silverado pick-up truck driven by Officer West, who was traveling northbound on White Bluff Road. The impact shoved the Accord onto the center median north of the
Muse received an incapacitating brain injury as a result of the accident and has never been able to provide an account of what happened. The accident was extensively investigated, however, and police interviewed numerous other witnesses, including West and his passenger, fellow officer Christopher Brian Boatright. West told officers that he did not see Muse in the Intersection until moments before the collision and that he attempted to stop, but that he could not avoid hitting her. Several witnesses to the accident told police investigators that West appeared to be speeding, and some witnesses said they observed him moving in and out of the right and left lanes in order to maneuver around traffic;6 at least one witness opined to police that Muse may not have seen West due to his speed and lane changes. Information obtained from the air bag module indicated that at approximately one second before deployment, West was traveling at 59 miles per hour; the posted speed limit was 40 miles per hour. And police concluded from the tire marks and angle of the vehicles that West was moving from the right lane to the left at the time of the collision.
Several witnesses, including Boatright in his initial statement to police,7 said they observed Muse stop before entering the intersection, although witness accounts differed concerning the precise point where she stopped, and one witness said it appeared to her that Muse was looking for oncoming traffic, but she could not be certain due to the distance. Based on the witnesses’ accounts, one investigating officer concluded in his report that Muse stopped at the point where the roads intersect, or just into White Bluff Road.
Plaintiffs also presented the report and testimony from an accident reconstructionist, who, based on his reconstruction of the accident and the conditions at the Intersection, testified that in order to have a completely unobstructed view, a driver had to “nose” past the stop bar into the northbound lane of traffic. He also opined, based on his calculations of the pre-accident positions of the vehicles relative to the point of impact, West‘s vehicle was not visible to Muse as she began to cross White Bluff Road, and that by the time she could see his vehicle it was too late to avoid the accident, making a crash all but unavoidable. The expert also concluded that had the visual obstructions been removed, both Muse and West would have been able to see each other in time to avoid the accident.8
1. Sovereign Immunity.
We turn first to the threshold issue of sovereign immunity. City of Tybee Island v. Harrod, 337 Ga. App. 523, 524 (788 SE2d 122) (2016) (sovereign immunity is not in the nature of an affirmative defense, going to the merits of the cases, but instead raises the trial court‘s subject matter jurisdiction to try the case and should be decided at the outset); Albertson v. City of Jesup, 312 Ga. App. 246, 248 (1) (718 SE2d 4) (2011) (“sovereign immunity is a threshold issue that the trial court was required to address before reaching the merits of any other argument.“).
Municipalities are protected by sovereign immunity pursuant to
For more than a century, “[t]his provision has ... been interpreted to mean that municipal corporations are immune from liability for acts taken in performance of a governmental function but may be liable for the negligent performance of their ministerial duties.” Mitcham, 296 Ga. at 577 (1). One such ministerial duty, which also has been recognized for more than a century, is the duty of a municipality to maintain city streets in a reasonably safe condition for travel.10 However, a city‘s liability in this regard is specifically limited by statute as set out in
A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street 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.
Thus, “[s]tated positively, “municipalities generally have a ministerial duty to keep their streets in repair, and they are liable for injuries resulting from defects after actual notice, or after the defect has existed for a sufficient length of time for notice to be inferred.” (Citation and punctuation omitted.) Roquemore, 274 Ga. App. at 423.
The question then turns on what constitutes a defect in the public roads under
Our Supreme Court has likewise explained well over a hundred years ago, that “[t]he municipality should not allow obstructions or excavations to adjoin the traveled
Further, the City‘s liability is not limited to manmade objects or obstructions, but extends to “defects which are gradually brought about by the forces of nature” such as tree limbs or vegetation alongside the road. Barnesville v. Sappington, 58 Ga. App. 27, 28 (197 SE 342) (1938). See also Richards, 158 Ga. App. at 694 (involving a tree limb extending over the street which broke off and crushed plaintiff‘s husband‘s vehicle, killing him).
Although the City acknowledges that a “defect” within the meaning of section
As an initial matter, although it is true that this Court has held that the City is immune from suit for claims arising from vehicular or pedestrian accidents that occur as the result of vegetation blocking the view of a traffic control device, our analysis in those cases focused on the fact that installing and maintaining traffic control devices involves a governmental function. Also, we specifically distinguished accidents resulting from obstructions to the view of oncoming traffic as opposed to the view of the traffic control device itself, which sovereign immunity covers. See Albertson, 312 Ga. App. at 249-50 (1) (“[B]ecause it is the obstruction of the [stop-sign], and not obstruction of the sight of oncoming traffic which [Plaintiff] contend(s) caused [him] to advance and collide,’ sovereign immunity bars his recovery ‘for even negligent exercise of this governmental function.‘“); Cyr v. Savannah, 188 Ga. App. 261, 262 (372 SE2d 659) (1988) (Beasley, J., concurring specially) (same). See also Roquemore, 274 Ga. App. at 422-23 (distinguishing ministerial duty to maintain streets from governmental function of maintaining street lights); McKinley v. City of Cartersville, 232 Ga. App. 659, 660 (503 SE2d 559) (1998) (distinguishing governmental function of installing stop signs at intersection).
Further, we have previously recognized that visual obstructions may be a factor in making a City‘s street unreasonably hazardous. See Mayor and Aldermen of Milledgeville v. Holloway, 32 Ga. App. 734, 735 (124 SE 802) (1924) (negligence action against the City not subject to demurrer when City had lawfully erected obstruction that was difficult to see due to a hill, forcing driver of car to veer into a ditch when he drove around it). Accordingly, in line with this long established precedent, we find that a jury must determine whether the tree located on the City‘s right of way obstructed the view of oncoming traffic such that it was a “defect” within the meaning of
However, that does not end our analysis because the City is liable only if it had notice of the defect.
Clark v. City of Atlanta, 322 Ga. App. 151, 153 (744 SE2d 122) (2013).
Here, the record shows that the Director of Savannah‘s Traffic Department, Mark Weiner, visited the Intersection in 1998 to address another problem and noted that “several trees on the east side of White Bluff just south of Lee Boulevard” impaired driver “visibility on Lee Boulevard entering White Bluff Road.” Weiner reported this finding and made a recommendation to remove the trees to the then-Director of Savannah‘s Public Works, but the trees were not removed at that time. In 2007, three years before Muse‘s accident, Nicholas Weaver was also hit at the Intersection while attempting to turn onto White Bluff Road after stopping at the stop sign on Lee Boulevard. The police report prepared following the 2007 accident contained a notation that Weaver‘s vision was obscured by trees, and Weaver testified that the trees made it very difficult to see at the Intersection, and at least partially blocked his vision of the oncoming traffic and the vehicle that hit him. And in December 2009, about seven months prior to Muse‘s accident, an anonymous caller notified the City that the two trees, along with other vegetation, were obstructing the view for drivers attempting to go south onto White Bluff Road.
Although the City argues this evidence was insufficient to provide the requisite notice to the City because only one accident specifically attributed to the defect had occurred at the Intersection, we find sufficient evidence for a jury to determine whether the City had actual or constructive notice that the tree was obstructing the view of motorists traveling through the Intersection. E.g., City of Fitzgerald v. Caruthers, 332 Ga. App. 731, 734 (774 SE2d 777) (2015) (physical precedent only) (city‘s admission that it did not document every complaint about hazardous trees and evidence that the tree was visibly decaying was sufficient to create jury issue on knowledge); Kicklighter, 167 Ga. App. at 530-31 (2) (evidence that the pole had been in place for 24 years and bore scrape marks from passing vehicles sufficient to raise a fact question of implied notice); cf. Carter v. Georgia Power Co., 204 Ga. App. 77 (418 SE2d 379) (city did not have notice that tree limb that fell was rotted when the limb appeared normal and there had been no record of any complaint or report about the tree). Accordingly, Plaintiffs’ negligence and nuisance12 claims are not barred by sovereign immunity.
2. Proximate Cause.
The City also contends that the trial court erred by denying its motion for summary judgment because Plaintiffs cannot establish that the obstruction in sight caused by the tree was a proximate or concurring cause of the accident,
“With respect to proximate cause, Georgia law is clear that (t)he proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently(,) and the person injured may recover from either or both of the persons responsible. The mere fact that the plaintiff‘s injuries would not have been sustained had only one of the acts of negligence occurred will not of itself operate to limit the other act as constituting the proximate cause.” Hayes v. Crawford, 317 Ga. App. 75, 78 (730 SE2d 26) (2012). “[T]o establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant‘s conduct and the alleged injury. Conversely, no matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable.” (Citations and punctuation omitted.) Riggins v. City of St. Marys, 264 Ga. App. 95, 98 (1) (a) (589 SE2d 691) (2003).
Although there are conflicts and contradictions in the evidence presented in this case, it appears established beyond dispute that the tree on the City‘s right of way created a partial or total obstruction for drivers attempting to navigate this Intersection, although the extent of the obstruction and the extent of the danger created by the obstruction is disputed and are issues that must be resolved by the jury. Further, viewing the evidence in favor of Muse, as the nonmovant, there exists at least some evidence that Muse stopped at some point at the Intersection before proceeding, although it is unclear exactly where she stopped. The City argues that because there is no evidence that Muse stopped and looked before turning, it is entitled to summary judgment. But an eyewitness or testimony from Muse on this point is not required here when numerous witnesses testified that Muse came to a stop before turning. A reasonable inference from this evidence is that Muse stopped to look at traffic for her safety. Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (“In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.“) (citation and punctuation omitted.) Compare Bacon v Mayor & Aldermen of the City of Savannah, 241 Ga. App. 211 (525 SE2d 115) (1999) (obstruction was not proximate cause where child ran into street without stopping or looking); City Council of Augusta v. Booker, 229 Ga. App. 566, 567 (1) (494 SE2d 374) (1985) (physical precedent only) (weeds that may have obscured view of oncoming traffic condition was not proximate cause of wreck when child admitted he did not stop and look before riding his bike into the street where he was hit by a car).
Additionally, although West‘s speed and frequent lane changes may have contributed to the accident, a jury could conclude that the fact that Muse‘s view of West‘s truck and West‘s view of Muse‘s vehicle may have been partially or wholly obstructed by the tree such that neither driver was able to see the other until it was too late also contributed to the accident. Accordingly, although it is possible in this case that a jury could determine that a number of factors contributed to the accident, we cannot eliminate as a matter of law the obstruction in line of sight caused by the tree as a proximate or concurring cause of the accident, and thus, summary judgment was properly denied. Riggins, 264 Ga. App. at 99 (1) (a).
3. Avoidable Consequences.
The City also contends that Muse‘s claims are barred by the doctrine of avoidable consequences
The doctrine of avoidable consequences is set out in
If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant‘s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.
“In general, ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.”
Here, Muse had regularly traveled through the Intersection for a number of years and, based on the overwhelming evidence that the trees caused at least some obstruction, would have been aware of the difficulty of seeing oncoming traffic. It is also undisputed that Muse used the other intersection about half the time. However, the evidence is conflicting as to the degree of obstruction caused by the tree, particularly in combination with a driver who was speeding and changing lanes at the same time. Cf. Weston v. Dun Transp. & Stringer, Inc., 304 Ga. App. 84, 88 (1) (695 SE2d 279) (2010) (plaintiff‘s decedent was aware that her view of oncoming traffic was completely obstructed, yet she entered the intersection); Zumbado v. Lincoln Property Co., 209 Ga. App. 163 (433 SE2d 301) (1993) (summary judgment for defendant in premises liability action where plaintiff had equal knowledge of the dangerous condition posed by the exit but chose to use it instead of an alternative). Thus, genuine issues of material fact exist as to whether Muse by ordinary care could have avoided the consequences caused by the City‘s alleged negligence, and the trial court properly denied summary judgment on this ground.14
4. Nuisance.
A public nuisance is defined in
The Supreme Court has set out three guidelines to define a nuisance for which a city may be held liable. First, the defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. Second, the act must be of some duration, and the maintenance of the act or defect must be continuous or regularly repetitious. Third, the city must have failed to act within a reasonable time after knowledge of the defect or dangerous condition.
Thompson v. City of Fitzgerald, 248 Ga. App. 725, 727 (2) (548 SE2d 368) (2001); City of Bowman v. Gunnells, 243 Ga. 809 (2) (256 SE2d 782) (1979).
The City argues that its tree on the right of way does not rise to the level of a nuisance because the degree of misfeasance did not exceed mere negligence and because there had been only one prior accident at the Intersection in which it was documented that the tree may have been a contributing factor. As discussed in Division 1, the City had the necessary notice of the obstruction in the line of sight caused by the tree as City records
Judgment affirmed. Barnes, P. J., and Mercier, J., concur.