City of Alpharetta v. Vlass

• Decision Date: 30 June 2021
• Docket Number: A21A0488, A21A0489
• Citation: 861 S.E.2d 249,360 Ga.App. 432
• Court: Georgia Court of Appeals
• Parties: CITY OF ALPHARETTA v. VLASS; and vice versa.

360 Ga.App. 432

861 S.E.2d 249

CITY OF ALPHARETTA

v.VLASS; and vice versa.

A21A0488, A21A0489

Court of Appeals of Georgia.

June 30, 2021

Dana Kristin Maine, Wesley Calvin Jackson, Atlanta, for Appellant in A21A0488.

Warren Raymond Hinds, Roswell, for Appellee in A21A0488.

Warren Raymond Hinds, Roswell, for Appellant in A21A0489

Dana Kristin Maine, Wesley Calvin Jackson, Atlanta, for Appellee in A21A0489.

Pipkin, Judge.

Plaintiff Bill Vlass brought negligence and nuisance claims against the City of Alpharetta (the "City") seeking to recover for injuries he received in a motor vehicle collision. The City moved to dismiss Vlass’ claims based on, inter alia, municipal immunity; the trial court granted the motion as to Vlass’ negligence claim but denied the motion as to the nuisance claim.

As set out in the complaint, as amended, on February 15, 2018, Vlass was driving a school bus northbound on Georgia State Route 9 when a pick-up truck driven by Charles Wayne Patrick turned left from Devore Road onto State Route 9 into the path of the school bus, causing a "t-bone" collision. Vlass brought a negligence action against the City,¹ claiming that the City was negligent because it failed to prohibit left-hand turns onto State Route 9 from Devore Road despite actual and/or constructive knowledge of the hazardous condition this created. The City filed a motion to dismiss, and Vlass amended his complaint to state a nuisance claim on this same basis; the City then filed a motion to dismiss both claims based on, inter alia, municipal immunity. On April 8, 2020, the trial court entered an order denying the City's motion to dismiss the nuisance claim but granted the motion as to the negligence claim based on a finding that Vlass had failed to prove the City had waived its immunity by purchasing insurance. The City filed an application for interlocutory appeal, which we granted, and that appeal was docketed in this Court as Case No. A21A0488 ("the nuisance appeal"). Vlass filed a cross appeal from the dismissal of his negligence claim and that appeal has been docketed in this Court as Case No. A21A0489 ("the negligence appeal"). As set forth below, we now reverse in the nuisance appeal and affirm in the negligence appeal.

We first set out the general framework for governmental immunity afforded to municipalities. "Though originating in the common law, the doctrine of municipal immunity now enjoys constitutional status [pursuant to Article IX, Section II, Paragraph IX of the Georgia Constitution ]." Gatto v. City of Statesboro , ––– Ga. ––––, –––– (1), ––– S.E.2d ––––, 2021 WL 2518620 at *2 (1), 2021 GA. LEXIS 488 at *5 (1) (Case No. S20G0651, decided June 21, 2021). Mayor & Aldermen of the City of Savannah v. Herrera , 343 Ga. App. 424, 427 (1), 808 S.E.2d 416 (2017) ; see also CSX Transp., Inc. v. City of Garden City , 277 Ga. 248, 249 (1), 588 S.E.2d 688 (2003). That immunity, which under the current version of our constitution may be waived only by the General Assembly, Gatto, ––– Ga. at –––– (1), ––– S.E.2d at ––––, 2021 WL 2518620 at *2-5 (1), 2021 GA. LEXIS 488 at *5 (1), is codified in OCGA § 36-33-1, which also sets out two narrow waivers. Pursuant to subsection (a) "[a] municipal corporation shall not waive its immunity by the purchase of liability insurance ... unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the limits of such insurance policy." Subsection (b) carves out another narrow waiver: "[m]unicipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable." OCGA § 36-33-1 (b). This latter waiver "has been consistently ‘[i]nterpreted to mean that municipal corporations are immune from liability for acts taken in performance of a governmental function but may be liable for negligent performance of their ministerial duties.’ City of Atlanta v. Mitcham , 296 Ga. 576, 577-578 (1), 769 S.E.2d 320 (2015)." Gatto v. City of Statesboro , 353 Ga. App. 178, 181-182 (1), 834 S.E.2d 623 (2019). Lastly, and importantly, municipal immunity is not in the nature of an affirmative defense but rather speaks to the trial court's subject matter jurisdiction. City of Tybee Island v. Harrod , 337 Ga. App. 523, 524, 788 S.E.2d 122 (2016). Thus, the burden is on the plaintiff to establish a waiver of immunity. Id.

CASE NO. A21A0488.

1. With this general framework in mind, we turn first to the trial court's denial of the City's motion to dismiss Vlass’ nuisance claim. In Gatto , ––– Ga. at ––––, ––– S.E.2d at ––––, 2021 WL 2518620 at *––––, 2021 GA. LEXIS 488 at *10., our Supreme Court recently set out the "contours" of municipal immunity in cases involving a nuisance claim. Id. at *1. After first tracing the history of municipal immunity, the Court observed "[e]ven in the exercise of its governmental functions, a municipality does not enjoy immunity for all liability." Id. at *7 (2). The Court went on to explain,

although protected from liability from negligence actions, a municipality, like any other individual or private corporation, may be liable for damages it causes to a thirty party from the operation or maintenance of a nuisance , irrespective of whether it is exercising a governmental or ministerial function. This exception to sovereign immunity is based on the principle that a municipal corporation can not, under the guise of performing a governmental function, create a nuisance dangerous to life and health or take or damage private property for public purpose, without just and adequate compensation being first paid.

(Punctuation and indention omitted.) Id., quoting City of Thomasville v. Shank, 263 Ga. 624, 624-625 (1), 437 S.E.2d 306 (1993). As the Court further explained,

though denominated an ‘exception,’ to sovereign immunity in Shank and some other cases, the principle that municipalities may be liable for creating or maintaining a nuisance is actually not an exception at all, but instead, a proper recognition that the Constitution itself requires just compensation for takings and cannot, therefore, be understood to afford immunity for such conduct.’ Georgia Dept. of Nat. Resources v. Center for a Sustainable Coast, Inc. , 294 Ga. 593, 600 (2), 755 S.E.2d 184 (2014).

Gatto , ––– Ga. at –––– – –––– (2), ––– S.E.2d at ––––, 2021 WL 2518620 at *4 (2), 2021 GA. LEXIS 488 at *7-8 (2). The Court reasoned that, viewed in this light, "the moniker ‘nuisance exception’ is a misnomer, and it is more apt to refer to the ‘nuisance doctrine’ when evaluating whether municipal liability may be imposed in a given case." Id.

The Court next turned to the application of the nuisance doctrine, recognizing, as it had before, "the challenge is determining what conduct or act on the part of the municipality will result in the creation or maintenance of a nuisance, as opposed to an action in negligence." (Punctuation omitted.) Id. at *8, quoting Hibbs v. City of Riverdale , 267 Ga. 337, 338, 478 S.E.2d 121 (1996). Not surprisingly, given that the roots of the nuisance doctrine extend squarely into the Takings Clause of our State Constitution, the court went on to note that "[t]raditionally, a municipality's liability in nuisance was limited to situations where the alleged injury related to the physical condition of the plaintiff's property or the plaintiff's use and enjoyment thereof[,]" Gatto , ––– Ga. at –––– (2), ––– S.E.2d at ––––, 2021 WL 2518620 at *4 (2), 2021 GA LEXIS 488 at *10 (2), the classic example being that of damage to personal property caused by the construction or maintenance of water or sewer systems or other types of physical structures. Id. at *9-10 (2).

However, "[t]his limitation on the nuisance doctrine was ... apparently abandoned in the case of Town of Fort Oglethorpe v. Phillips , 224 Ga. 834, 165 S.E.2d 141 (1968)," Id. at *11 (2), when our Supreme Court allowed a nuisance claim against a municipality based on the failure to repair a malfunctioning traffic light, thereby "extending the nuisance doctrine to include personal injuries beyond those tied to plaintiff's property." (Citation and punctuation omitted.) Id. But this expansion to include claims for personal injuries not tied to a plaintiff's property did not remain unbounded; rather "[s]ince Phillips , th[e] Court has attempted to elucidate parameters for this more expansive notion of municipal liability." Gatto , ––– Ga. at –––– (2), ––– S.E.2d at ––––, 2021 WL 2518620 at *5 (2), 2021 GA LEXIS 488 at *12 (2). Thus, in Mayor of Savannah v. Palmerio , 242 Ga. 419, 249 S.E.2d 224 (1978), the Court, in connection with jury instructions, set out the following "propositions":

To be held liable for maintenance of a nuisance, the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and if the municipality did not perform an act creating the dangerous condition ... the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.

Id. at 425 and 427 (3), 249 S.E.2d 224.

In setting out these "propositions," our Supreme Court cited cases from this Court in which we distinguished allegations of nuisance premised on the municipalities actions, such as installing and then failing to maintain a defective traffic device as was the situation in Phillips , from situations where the nuisance claim was premised on "a classic case of non-action by the city, [such as where] there was no traffic light in place and the question is whether an alleged hazardous condition brought about by the absence of a traffic light constituted the maintenance of a...