City of Atlanta v. Roberts

• Decision Date: 26 November 1974
• Docket Number: 49501,2,Nos. 49481,Nos. 1,3,s. 49481,s. 1
• Citation: 211 S.E.2d 615,133 Ga.App. 585
• Parties: CITY OF ATLANTA v. Marie E. ROBERTS. Marie E. ROBERTS v. CITY OF ATLANTA
• Court: Georgia Court of Appeals

Page 615

211 S.E.2d 615

133 Ga.App. 585

CITY OF ATLANTA v. Marie E. ROBERTS.

Marie E. ROBERTS v. CITY OF ATLANTA.

Nos. 49481, 49501.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 26, 1974.

Rehearing Denied Dec. 19, 1974.

James H. Weeks, Atlanta, for appellant.

Shoob, McLain, Jessee, Merritt & Lyle, M. David Merritt, Palmer H. Ansley, Atlanta, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

On the evening of April 18, 1973, at approximately 9:30 p.m., a City of Atlanta garbage truck became disabled and stopped in the west bound lane of Bolton Road in Atlanta, Georgia. Bolton Road at this point runs generally east and west and is a two lane road, 30 feet wide. Work was performed on the truck for a period of time, but finally it was left deserted with its emergency flashers operating. Later, certain men returned to the truck and worked thereon until approximately 10:30 p.m. Then all lights were extinguished, including the emergency flashers. The truck was left abandoned, completely dark and blocking the west bound lane of traffic.

About 1:30 a.m., April 20, 1973, four hours after the truck became disabled, a collision occurred when a Volkswagen van being driven west by Wesley R. Vollrath with Chester A. Ellen as a passenger, collided with the parked, deserted and unlighted garbage truck. Ellen was killed. Due notice of his wrongful death was given to the city and a claim was properly filed as required by law.

The administratrix of his estate sued Vollrath for negligence in the operation of the Volkswagen; and sued the City of Atlanta for negligence in failing to maintain its street free of obstruction; in maintaining Bolton Road in an unsafe condition by leaving an unlighted garbage truck parked on said road after notice to the City of Atlanta of said condition; and in maintaining a nuisance by permitting the garbage truck to remain on a heavily traveled public street after notice to the City of Atlanta.

The city answered, and admitted jurisdiction and the collision, but denied being negligent, contending defendant Vollrath's negligence in colliding with the garbage truck was the sole proximate cause of Ellen's death.

After discovery, the city filed a motion for summary judgment in which it contended it was immune from liability; that the garbage truck was left at this location due to an emergency (flat tires) and had never previously been continuously left in this position.

After a hearing, the court sustained the motion for a summary judgment as to the theory and issue of maintenance of a nuisance, citing Johnson v. City of Atlanta, 117 Ga.App. 586, 161 S.E.2d 399; but denied the motion as to the theory and issue of alleged negligence and damage in failing to maintain safe and unobstructed streets, citing Mayor & Aldermen of Savannah v. Jones, 149 Ga. 139, 99 S.E. 294.

Defendant city in Case No. 49481 appeals from the denial of its entire motion for summary judgment. In Case No. 49501, plaintiff appeals from the granting of a partial summary judgment against her as to her claim of maintenance of a nuisance. Held:

1. The evidence discloses the truck was left obstructing the west bound lane for approximately four hours on April 19-20, 1973, although there is conflict as to whether or not proper safety devices were left in and around the truck for three hours after it was abandoned on the street. Thus, under the authority of Mayor, etc., of Savannah v. Jones, 149 Ga. 139, 99 S.E. 294, supra, the court did not err in denying summary judgment as to the negligence phase of the case in obstructing the street.

Even though the removal of garbage is a sanitary and health measure comprising a governmental function, the municipality was under a ministerial duty to keep its streets free of obstructions, particularly those of its own making. The city was not immune from liability. See also the case of City Council of Augusta v. Cleveland, 148 Ga. 734, 98 S.E. 345, wherein a seven year old boy was attracted to work being performed by sewerage-drainage employees (a governmental function) on a sidewalk of a municipality and was injured. There, the Supreme Court instructed this court, in answer to a certified question, that if the city employees were negligent in creating dangerous defects or obstructions in a sidewalk from which one not chargeable with negligence was injured, the city could be held liable to the injured party. The trial judge did not err in denying the motion for summary judgment of the City of Atlanta on the theory of obstructing a city street.

2. The facts here show a single isolated act of negligence, 'and this is not sufficient to show such a negligent trespass constituted a nuisance . . . In Southeastern Liquid, etc., Co. v. Chapman, 103 Ga.App. 773, 775, 120 S.E.2d 651, 653, it is held: 'The whole idea of nuisance is that of either a continuous or regularly repetitious act or condition which causes the hurt, inconvenience or injury . . . A single isolated occurrence or act, which if regularly repeated would constitute a nuisance, is not a nuisance until it is regularly repeated.' 'Neither can the doctrine rendering municipalities liable in the performance of governmental functions for the maintenance of a nuisance be applied in this case, since the injury complained of here is more in the nature of a tort or a trespass inflicting in one act a direct injury and damage (even though in effect one of more or less lasting duration) to plaintiff's realty as distinguished from the maintenance of a nuisance where the injury complained of is the result of a continuance or recurrent act or condition and is of an indirect character.' Ethridge v. City ofLavonia, 101 Ga.App. 190 191, 112 S.E.2d 822, 823.' Johnson v. City of Atlanta, 117 Ga.App. 586, 588, 161 S.E.2d 399,...