Caruthers v. City of Rochelle, A21A0038

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Dillard, Presiding Judge.
• Citation: 857 S.E.2d 844
• Parties: CARUTHERS et al. v. CITY OF ROCHELLE, Georgia.
• Docket Number: A21A0038
• Decision Date: 18 May 2021

857 S.E.2d 844

CARUTHERS et al.
v.
CITY OF ROCHELLE, Georgia.

A21A0038

Court of Appeals of Georgia.

May 18, 2021
Reconsideration Denied May 28, 2021

857 S.E.2d 845

James L. Ford Sr., Mitchell Everett McGough, Atlanta, for Appellant.

Sara Elizabeth Brochstein, Dana Kristin Maine, Kevin Robert Stone, Atlanta, for Appellee.

Dillard, Presiding Judge.

Willie J. Caruthers—as administrator for the Estate of Harold Caruthers—and Annie Pearl Everson appeal a jury's verdict in favor of the City of Rochelle, Georgia, based upon their claims related to Harold Caruthers's death after falling into a hole dug by City employees. Specifically, they argue that the trial court committed reversible error in two separate instructions to the jury. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the record shows that on June 5, 2016, the City of Rochelle was notified of a water leak on private property that housed a dilapidated building. Two city workers and the mayor responded to the call and fixed the leak by digging a three-foot-deep hole. But during this process, it began to rain, and the hole also filled with water that leaked from the pipe prior to its repair. And while the city workers intended to return the following day to refill the hole, it was still "flooding raining" at that time. In the interim, no barriers or warnings were placed around the hole despite general knowledge that it was beside an unofficial pathway used by locals to cross the private property.

Harold Caruthers and Eva Mae McKinney lived across from the dilapidated building and beside the area where the city dug the hole. They both saw the City dig the hole on June 5, because the workers used a backhoe almost directly in front of their home, and both were aware that water had been leaking into the road from the issue with the pipe. The next day (on June 6), despite the pouring rain, Harold decided to walk to a store to buy cigarettes. But Harold never returned home. And the following day, McKinney found him dead in the hole beside the pathway.² A pile of dirt removed from the hole was located within that pathway.

Harold's brother (Willie) subsequently filed suit against the City to recover for

857 S.E.2d 846

Harold's personal injuries and death, alleging claims of negligence and nuisance.³ Specifically, the complaint asserted that the City was negligent in its failure to erect barricades or warnings around the hole after allowing it to fill with water, and that the same was a nuisance.

At the time of his death, Harold was hampered by mobility issues due to having an injured foot and knee. And at trial, both medical experts agreed that Harold had an underlying heart condition and died due to a cardiac event, the cause of which could not be determined. Although the appellants’ expert also opined that Harold drowned in conjunction with the event, she was clear that the cardiac event preceded the inhalation of water from the hole. Ultimately, the jury found in favor of the City. This appeal follows the trial court's denial of appellants’ motion for new trial.

1. First, appellants argue that the trial court erred by charging the jury on the trespasser doctrine. We disagree.

The record shows that the City requested a charge on the definition of a trespasser and the duty of care owed to a trespasser. Then, at the charge conference, appellants objected to the proposed charge, arguing that Harold was not a trespasser because the City did not own the subject property. But after lengthy argument by the parties, the trial court decided to give the charge.

Appellants contend that the trial court erred in so instructing the jury because the City does not own the land on...