City of Atlanta v. Metropolitan Atlanta Rapid Transit Authority

• Decision Date: 18 May 1992
• Docket Number: No. A92A0587,A92A0587
• Citation: City of Atlanta v. Metropolitan Atlanta Rapid Transit Authority, 419 S.E.2d 330, 204 Ga.App. 387 (Ga. App. 1992)
• Parties: CITY OF ATLANTA v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
• Court: Georgia Court of Appeals

Page 330

419 S.E.2d 330

204 Ga.App. 387

CITY OF ATLANTA v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.

No. A92A0587.

Court of Appeals of Georgia.

May 18, 1992.

Reconsideration Denied June 1, 1992.

Certiorari Granted Sept. 14, 1992.

Michael V. Coleman, Joe M. Harris, Jr., Sarah I. Mills, Atlanta, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Nicholas C. Moraitakis, Martha D. Turner, Michael E. Fisher, Atlanta, for appellees.

McMURRAY, Presiding Judge.

This appeal arose after Patricia Babin Bauer was killed when the vehicle she was operating on a three-laned portion of DeKalb Avenue in the City of Atlanta ("Atlanta") collided head-on with a passenger bus operated by Metropolitan Atlanta Rapid Transit Authority ("MARTA"). The decedent's estate and members of her family ("the Bauers") filed a complaint against MARTA and its bus driver, Warren Gould, for negligence and against Atlanta for nuisance. MARTA and Gould cross-claim for contribution, alleging that Atlanta created and maintained a nuisance which contributed to the fatal collision. The Bauers dismissed the complaint, settling with MARTA for $1,100,000. Atlanta did not join in the settlement and the case was tried before a jury on the contribution cross-claim.

At about 8:00 in the evening on June 4, 1987, Warren Gould, acting in the scope of his employment as a MARTA bus driver, was operating a passenger bus near the end of a 3.4 mile stretch of DeKalb Avenue which consists of two outside opposing traffic lanes and a middle lane bounded with double-dashed yellow lines. (The middle lane is reversible and is regulated by overhead traffic control devices. These traffic control devices display opposing red and green signals during peak traffic periods and, during non-peak traffic periods, the devices signal a flashing yellow "X" in both directions.) Gould moved the bus into the middle lane against yellow flashing "X" signals, attempting to pass an erratically moving vehicle. (Gould testified that it was his understanding that a middle lane regulated by flashing yellow "X" signals could be used "for emergency purposes to get around anything that may be impeding traffic in the right lane.") The decedent was then traveling against the flashing yellow "X" signals from the opposite direction, just entering the middle lane from a stretch of DeKalb Avenue that consists of four evenly divided traffic lanes. (A photograph of the transition from four to three lanes reveals the centerline of the four-laned road abruptly ending after bisecting the middle lane of the three laned portion of DeKalb Avenue.) The vehicles approached head-on while negotiating a curve which limited distance visibility and collided after both drivers evasively steered into the same lane of traffic. The decedent was pinned in her automobile and died about 30 minutes after the collision.

Variable-lane traffic control devices, functioning with flashing yellow "X" signals, were installed by Atlanta on DeKalb Avenue in the 1950s. These devices were replaced in the 1970s when a rapid transit railway was constructed parallel to one side of DeKalb Avenue. The replacement equipment also functioned with opposing flashing yellow "X" signals and operated through the June 4, 1987, collision.

During two years before the collision, Atlanta recorded several accidents caused by confusion over the directional meaning of the flashing yellow "X" signals on DeKalb Avenue. Atlanta also received direct reports from motorists reflecting misunderstanding over the use and function of the middle lane of DeKalb Avenue when flashing yellow "X" signals are functioning. In fact, a 19-year veteran engineer with Atlanta's Bureau of Traffic and Transportation recognizes that flashing yellow "X" signals are confusing and do not convey any specific meaning with regard to use of regulated traffic lanes.

The Manual on Uniform Traffic Control Devices for Streets and Highways (the "manual"), a body of regulations published by the Federal Highway Administration and adopted by Atlanta, provides that "[a] flashing YELLOW X means that a driver is permitted to use a lane over which the signal is located for a left turn." However, the manual warns that such signals should be used only "[w]here feasible [and] with due caution." The manual also cautions that any driver using a lane with an overhead flashing yellow "X" signal "may be sharing that lane with opposite flow left-turning vehicles."

The jury returned a verdict, finding that Atlanta created or maintained a nuisance on DeKalb Avenue and that the nuisance was a proximate concurring cause of the collision. The trial court entered judgment for MARTA and Gould in the principal amount of $550,000. Atlanta filed this appeal after the denial of its motion for a judgment notwithstanding the verdict. Held:

1. Atlanta contends the trial court erred in failing to dismiss the cross-claim, arguing that contribution claims pertain only to joint tortfeasors and not to "defendants in nuisance." This enumeration inaccurately assumes that MARTA and Gould were sued as joint participants in the creation of a nuisance.

OCGA § 51-12-32 provides for contribution among joint tortfeasors. However, "joint participants in the creation of a nuisance are not jointly and severally liable for the full total of plaintiffs' damages, but only for their individual parts." Gilson v. Mitchell, 131 Ga.App. 321, 328, 205 S.E.2d 421, affirmed in Mitchell v. Gilson, 233 Ga. 453, 454, 211 S.E.2d 744. In the case sub judice, it was never alleged that MARTA and Gould were joint participants in the creation of a nuisance. MARTA and Gould were sued along with Atlanta for indivisible losses allegedly stemming from separate and distinct wrongful acts, i.e., negligence by a MARTA employee and the creation and maintenance of a nuisance by Atlanta. See Parks v. Palmer, 151 Ga.App. 468, 470(2), 260 S.E.2d 493. Consequently, MARTA and Gould were authorized in asserting a cross-claim against Atlanta for allegedly contributing to the Bauers' damages. OCGA § 51-12-32. The trial court did not err in refusing to dismiss the contribution cross-claim.

2. Atlanta contends the trial court erred in failing to dismiss the cross-claim, arguing that MARTA and Gould failed to give ante litem notice within six months of the collision as is required by OCGA § 36-33-5. This contention is without merit.

OCGA § 36-33-5 is in derogation of the common law and must be strictly construed against the municipality. Hicks v. City of Atlanta, 154 Ga.App. 809, 810, 270 S.E.2d 58. This Code section requires ante litem notice for damage claims against municipalities which arise "on account of injuries to person or property...." OCGA § 36-33-5(a). Nothing in this statute requires ante litem notice for claims by joint tortfeasors against municipalities for contribution. Consequently, the contribution claim filed against Atlanta by MARTA and Gould was not conditioned upon the ante litem notice provision of OCGA § 36-33-5. To say otherwise, would require defendants to anticipate within six months of any incident giving rise to damages "on account of injuries to person or property" claims for contribution against municipalities which may not accrue for several years. See Olsen v. Jones, 209 N.W.2d 64 (1973).

3. Atlanta contends the trial court erred in denying its motion for judgment notwithstanding the verdict. Atlanta argues that the flashing yellow "X" signals and the road markings on DeKalb Avenue do not constitute a nuisance because these traffic control devices are authorized by the manual and were functioning as intended, i.e., not obscured or malfunctioning at the time of the collision. This contention is without merit.

The law does not require that an instrumentality be functioning improperly before it may be regarded as a nuisance. City of Fairburn v. Cook, 188 Ga.App. 58, 372 S.E.2d 245. On the contrary, in the case of Porter v. City of Gainesville, 147 Ga.App. 274, 276, 248 S.E.2d 501, involving a grant of summary judgment to the City of...