City of Atlanta v. Chambers

• Decision Date: 24 September 1992
• Docket Number: A92A1215 and A92A1266,Nos. A92A1214,s. A92A1214
• Parties: CITY OF ATLANTA v. CHAMBERS. CHAMBERS v. CITY OF ATLANTA et al. CITY OF ATLANTA v. BOWMAN.
• Court: Georgia Court of Appeals

Page 19

424 S.E.2d 19

205 Ga.App. 834

CITY OF ATLANTA v. CHAMBERS.

CHAMBERS v. CITY OF ATLANTA et al.

CITY OF ATLANTA v. BOWMAN.

Nos. A92A1214, A92A1215 and A92A1266.

Court of Appeals of Georgia.

Sept. 24, 1992.

Reconsideration Denied Oct. 16, 1992.

Certiorari Denied Jan. 7, 1993.

Michael V. Coleman, Kendric E. Smith, Atlanta, Lisa E. Steinmetz, for City of Atlanta.

Elizabeth J. Appley, Ralph S. Goldberg, Atlanta, for Chambers.

Bates, Baum & Landey, Beverly B. Bates, Atlanta, for Bowman.

CARLEY, Presiding Judge.

A garbage truck owned by appellant-defendant City of Atlanta (City) and operated by one of its employees collided with another vehicle. The occupants of the other vehicle were seriously injured and one died. Appellee-plaintiffs filed suit, seeking to recover for the injuries and the death resulting from the collision. Appellees' suit was filed against the City and appellant-defendant Chester Funnye, the Commissioner of the City's Department of Public Works (Commissioner). After extensive discovery, the City and the Commissioner moved for summary judgment. The trial court granted the motion as to all theories of recovery except the City's vicarious liability for the alleged negligence of the driver of the garbage truck. As to that theory of recovery, the trial court found, "as a matter of law," that municipal immunity would not constitute a viable defense. In Case Nos. A92A1214 and A92A1266, the City appeals directly from the order on its municipal immunity defense. In Case No. A92A1215, appellee Chambers appeals directly from the order granting summary judgment to the City and the Commissioner.

Case Nos. A92A1214

and A92A1266

1. When considering a motion predicated upon a plea of abatement, such as a motion to dismiss pursuant to subsections (1), (2), (3), (4), (5) or (7) of OCGA § 9-11-12(b), a trial court is authorized to resolve disputed factual issues. Metric Steel Co. v. BLI Constr. Co., 147 Ga.App. 380, 383, 249 S.E.2d 121 (1978). In the instant case, however, the City's motion was clearly not predicated upon a plea of abatement. The City moved for summary judgment based upon its defense of municipal immunity. Municipal immunity is an affirmative defense, such as the statute of limitations, which asserts a bar to recovery and not merely the abatement of an action. Peeples v. City of Atlanta, 189 Ga.App. 888, 889(1), 377 S.E.2d 889 (1989). Accordingly, municipal immunity goes to the merits of a recovery and is a proper issue for disposition by motion for summary judgment. On motion for summary judgment, however, the trial court is not authorized to resolve disputed factual issues. Accordingly, summary judgment in the instant case would not be proper unless no genuine issue of disputed material fact remained for jury resolution as to the City's municipal immunity defense. See City of Atlanta v. Whatley, 161 Ga.App. 705, 289 S.E.2d 541 (1982).

The trial court did not grant summary judgment as to appellees' ultimate recovery under their vicarious liability theory. However, insofar as the trial court held that, "as a matter of law," municipal immunity would not constitute a viable defense to that theory of recovery, it is clear that the trial court, in effect, granted partial summary judgment in favor of appellees and against the City as to that defense. Accordingly, the grant of summary judgment was directly appealable by the City. See Howell Mill/Collier Assoc. v. Pennypacker's, Inc., 194 Ga.App. 169(1), 390 S.E.2d 257 (1990); Peeples v. City of Atlanta, supra, 189 Ga.App. at 889(1), 377 S.E.2d 889. That grant of summary judgment in favor of appellees would be proper if, but only if, no genuine issue of disputed material fact remained for jury resolution as to the non-viability of the City's municipal liability defense.

2. "[T]here is no disagreement that in general 'the collection of garbage is a governmental function, for the performance of which a municipality is granted immunity from liability for the negligent acts of its officers and employees.' [Cit.] One exception to this general rule may arise where a city operates a garbage collection service primarily as a business enterprise and source of revenue, rather than primarily as a public service. [Cits.]" Smith v. Mayor of Savannah, 185 Ga.App. 708, 365 S.E.2d 529 (1988).

In support of its motion, the City introduced evidence which, if uncontradicted, would demand a finding that its garbage collection service was operated primarily as a public service and not as a source of revenue. That evidence shows that, pursuant to its charter and ordinances, the City operated its garbage collection service without a profit motive and that garbage collection fees were set at a rate intended merely to offset the expenses of providing that service rather than to generate revenue for the City's use in funding other activities. City of Valdosta v. Bellew, 178 Ga.App. 423, 343 S.E.2d 111 (1986). "Whether the enterprise turns a profit, or only an incidental profit ( [cit.] ) is not the controlling point; what is significant is the character of the [enterprise] as 'primarily a source of revenue' rather than being used primarily for the benefit of the public regardless of incidental generation of revenues." Cleghorn v. City of Albany, 184 Ga.App. 732, 735-736(1), 362 S.E.2d 386 (1987).

In opposition to the City's motion, appellees submitted the affidavit of an expert who opined that, if the City employed a different accounting method other than that which the City actually employed, it was possible to derive a different figure as to the profitability of the City's garbage collection service. Obviously, different accounting methods will potentially result in different figures for profitability. However, the affidavit of appellees' expert does not suggest that the accounting method employed by the City is in any way improper. Moreover, it is not the accounting method employed, but the character of the garbage collection operation as primarily a source of revenue for the City or primarily a service for the benefit of the public that is controlling. Nothing in the affidavit of appellees' expert negates the evidence that, regardless of whether revenues may have exceeded expenditures or expenditures may have exceeded revenues in any given year, the over-all character of the garbage collection operation was as a service primarily for the benefit of the public, rather than primarily as a source of revenue for the City.

The affidavit of appellees' expert also suggests that there are certain mathematical or computational errors in the evidence submitted by the City regarding the revenues and expenditures attributable to its garbage collection operation. However, these purported errors are de minimis and likewise have no material bearing on the character of the City's garbage collection operation as either primarily a source of revenue or primarily a benefit for the public. The fact that the City had slightly higher revenues or slightly lower expenditures in any given year is not controlling. If public service is primary and profit only incidental, the City has municipal immunity. It is only when profit is primary and public service is incidental that there exists an exception to the general rule of municipal immunity for negligence resulting from the collection of garbage. Smith v. Mayor of Savannah, supra, 185 Ga.App. at 708, 365 S.E.2d 529.

Construing the evidence most favorably for appellees, they did not meet their burden of producing evidence "that would take the garbage collection service outside a governmental function and convert it into a ministerial one. [Cit.]" City of Valdosta v. Bellew, supra, 178 Ga.App. at 426, 343 S.E.2d 111. The City employee's act of driving the garbage truck was "exclusively and inextricably intertwined with the garbage collection function of the [C]ity.... [It] was so closely associated with the garbage collection function that[, so long as the City did not perform that function primarily as a source of revenue,] the [C]ity was immune from suit by virtue of performance of a governmental function...." City of Valdosta v. Bellew, supra at 425, 343 S.E.2d 111. See also Love v. City of Atlanta, 95 Ga. 129, 134, 22 S.E. 29 (1894).

3. "[C]hallenge[s] to the constitutionality of the statute [providing for municipal immunity, OCGA § 36-33-1, and the City's ordinance waiving such immunity to the extent of $1,000 per claim were] not preserved for review because [rulings were] not obtained from the trial court. [Cit.]" Connolly v. State of Ga., 199 Ga.App. 887, 890, 406 S.E.2d 222 (1991).

4. The City does not enumerate as error the denial of its motion for summary judgment. Accordingly, all we hold in the instant cases is that the trial court erred in granting summary judgment in favor of appellees as to the City's municipal immunity defense.

Case No. A92A1215

5. The trial court's grant of summary judgment in favor of the City as to the nuisance theory of recovery is enumerated as error.

" 'A municipal corporation, like any other individual or private corporation, may be held liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or municipal function.' ... Under [Supreme Court] guidelines ..., there must be the maintenance of a dangerous condition on a continuous or regular basis over a period of time in which no action or inadequate action is taken to correct the condition after knowledge thereof. " (Emphasis...