Caldwell v. Mayor and Aldermen of City of Savannah, 38260

• Decision Date: 06 May 1960
• Docket Number: No. 2,No. 38260,38260,2
• Citation: Caldwell v. Mayor and Aldermen of City of Savannah, 115 S.E.2d 403, 101 Ga.App. 683 (Ga. App. 1960)
• Parties: I. S. CALDWELL v. MAYOR AND ALDERMEN OF the CITY OF SAVANNAH
• Writing for the Court: FRANKUM
• Court: Georgia Court of Appeals

Page 403

115 S.E.2d 403

101 Ga.App. 683

I. S. CALDWELL v. MAYOR AND ALDERMEN OF the CITY OF SAVANNAH.

No. 38260.

Court of Appeals of Georgia, Division No. 2.

May 6, 1960.

Rehearing Denied May 18, 1960.

Syllabus by the Court

Where there are substantial issues of fact, it is error for a trial court to grant a summary judgment.

The plaintiff filed a suit in the Superior Court of Chatham County against the City of Savannah for personal injuries. Succinctly, the petition alleged that the city prior to September 23, 1957, laid out and established a brick sidewalk lying within what is known as Orleans Square, the center of which is at the intersection of the extensions of Barnard and McDonough Streets, and the said sidewalk extends a sidewalk on the northern side of McDonough Street east through Orleans Square to the entrance of the city's municipal auditorium and the sidewalk is an extension of McDonough Street sidewalk and an exit from Barnard Street surrounding Orleans Square. On September 23, 1957, the city leased the municipal auditorium to a private promotion enterprise for a closed circuit television showing of a boxing match. The plaintiff on September 23, 1957, walked from his car toward the auditorium to attend the showing of the boxing match. As he attempted to step out of Barnard Street onto the walkway leading out of Barnard Street at the northeasterly entrance of Orleans Square, his foot slipped on slime which was present on the pavement and which the city had allowed to be present for a considerable length of time, and simultaneously he tripped on a raised and uneven curb lying in Barnard Street causing him to fall and sustain multiple fracture of his lower right leg. The plaintiff was exercising ordinary care and keeping proper lookout for obstacles and obstructions, but because of the darkness and because the city failed to light the entrance to Orleans Square, he was unable to see and avoid the obstacles. The city knew or should have known of the dangerous conditions existing which were caused by not properly maintaining the curbs of Barnard Street, by allowing fungus to grow on the walk unattended, and by not lighting the walkway. Since the plaintiff was still in Barnard Street, which is a public way, the city should have seen that its public ways and exits were safe. The walk is, in fact an extension of the McDonough Street sidewalk, a public way within the limits of the city, and the defendant should have seen that the walkway was safe. The petition alleged various specifications of negligence and an allegation that written notice in compliance with Code § 69-308 had been filed with the city within the statutory time along with a prayer for $30,962.92 damages.

After a hearing on demurrer, the plaintiff amended his petition and alleged that the brick sidewalk was within the right-of-way of Barnard Street adjacent to the easterly side of Orleans Square in lieu of previous allegations that placed the sidewalk within the square.

The city filed a motion for summary judgment along with a certified copy of the plaintiff's notice and an affidavit of the director of public improvements who stated that the sidewalk was within Orleans Square. A written response by the plaintiff, on his behalf, contending that the sidewalk was within the Barnard Street right-of-way was filed along with a supporting affidavit by a surveyor showing the historical measurements of Barnard Street in relation to Orleans Square.

The trial court granted summary judgment on behalf of the city to which the plaintiff excepts.

Cheatham, Bergen & Sparkman, Joseph B. Bergen, Savannah, for plaintiff in error.

Oliver, Davis & Maner, Edwin Maner, Jr., Savannah, for defendant in error.

FRANKUM, Judge.

The trial judge granted a summary judgment in favor of the City of Savannah on all issues of law and fact under the provision of Code (Ann.) § 110-1203 (Ga.L. 1959, p. 234). The pertinent part of said code section is as follows: 'The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law, but nothing in this Chapter shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined.'

The crux of the summary judgment procedure is that if there is no substantial issue as to any material fact, then the court can apply the appropriate legal principles and define the legal rights of the parties without lengthy trials to establish the already undisputed facts.

The attorney for the city insists that there is no genuine issue. His contentions are based upon (a) the notice is insufficient as a matter of law to comply with Code § 69-308, and, (b) if the notice is sufficient, such notice reveals the injury was incurred at a place where the city is not responsible, viz. in a public park the maintenance of which is a governmental function.

(a) We shall deal with the sufficiency of the notice first because if the notice is insufficient the plaintiff's action will not be entertained by the courts. The relevant part of plaintiff's notice is as follows: 'I respectfully ask permission of your Honorable Body to give your consideration to my plea for assistance in defraying some of the expenses, resulting from a fall I sustained while as a visitor to your city the evening of September 23, 1957. I came to Savannah to attend the television showing of a boxing event at the city owned Auditorium. Upon leaving our car near the old McAlpine home, my son and I began to walk slowly toward the Auditorium as we had a full hour before the showing was scheduled. Immediately on stepping from the street to the old brick sidewalk of Orleans Square, both of my feet slipped beneath me and I fell to my knees, unfortunately...