City of Atlanta v. Dale

• Decision Date: 21 February 2020
• Docket Number: A19A2012
• Citation: 840 S.E.2d 56,353 Ga.App. 817
• Parties: CITY OF ATLANTA v. DALE.
• Court: Georgia Court of Appeals

353 Ga.App. 817

840 S.E.2d 56

CITY OF ATLANTA

v.DALE.

A19A2012

Court of Appeals of Georgia.

February 21, 2020

Torrey Dennis Smith, Sherida Nicole Mabon, Atlanta, Nina R. Hickson, for Appellant.

Michael A. Baskin, Atlanta, for Appellee.

McFadden, Chief Judge.

This is an appeal from a judgment on a jury verdict in favor of plaintiff Pamela Dale in her personal injury action against the City of Atlanta. Dale was badly injured after driving into an open manhole on a section of Peachtree Road located in the city. She sued the city, arguing that the manhole was a public nuisance because it sat several inches below the surface of the street, which heightened the risk that its cover would become dislodged. But she did not present evidence that the manhole was in that condition on the day of the incident or that the city had notice of that condition before the incident. So Dale did not establish all of the elements required to hold the city liable for a public nuisance and the trial court erred in denying the city’s motion for directed verdict. We therefore reverse.

1. Facts.

"A motion for directed verdict shall be granted only ‘(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ OCGA § 9-11-50 (a)." Norfolk Southern Corp. v. Smith , 262 Ga. 80, 83-84 (2), 414 S.E.2d 485 (1992). On appellate review from a denial of a motion for directed verdict, we consider whether "there is any evidence to support the jury’s verdict, and in conducting this analysis we must construe the evidence in the light most favorable to the party who prevailed in the court below." Lee v. Swain , 291 Ga. 799, 800 (1), 733 S.E.2d 726 (2012).

So viewed, the trial evidence showed that on August 13, 2016, Dale was seriously injured when she hit an uncovered manhole while driving on Peachtree Road. Photographs taken more than a year after the collision depicted the manhole in a deteriorated condition: its opening was several inches lower than street level and cracks in the surrounding pavement indicated structural problems. Dale’s expert witness opined that this condition created an increased risk that the manhole cover would become dislodged.

The city does not have a practice of inspecting manholes absent a reported problem with them. A witness who testified on behalf of the city pursuant to OCGA § 9-11-30 (b) (6) stated that, according to a "Manhole Condition Assessment" report, the manhole in this case had last been inspected in 2009.¹ That report did not address the manhole’s position in relation to the level of the street. Dale’s expert, however, opined that the "Manhole Condition Assessment" report did not concern the manhole in question. The city had no other records pertaining to the condition of the manhole and was unaware of any previous accidents related to the manhole.

2. The evidence did not establish all of the elements of Dale’s nuisance claim against the city.

A municipality "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[.]"

City of Bowman v. Gunnells , 243 Ga. 809, 810 (1), 256 S.E.2d 782 (1979) (citation omitted). An action against a municipality for liability based on a nuisance requires the following showings:

(1) The defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. (A single isolated act of negligence is not sufficient to show such a negligent trespass as would constitute a nuisance.) (2) The act must be of some duration ... and the maintenance of the act or defect must be continuous or regularly repetitious. (3) Failure of the municipality to act within a reasonable time after knowledge of the defect or dangerous condition.

Id. at 811 (2), 256 S.E.2d 782 (citations and punctuation omitted).Whether these elements are met "is generally a fact question for a jury. However, some factual settings turn the issue into one of law." City of Atlanta v. MARTA , 262 Ga. 743, 745, 425 S.E.2d 862 (1993) (citation omitted).

In this case, there is no fact question regarding these elements because there is no evidence that the defect asserted by Dale — the deteriorated condition of the manhole depicted in the photographs — existed on or before the day of the incident. The photographs were taken more than a year later and, by themselves, do not create a question of fact as to how long the manhole had existed in that condition. See City of St. Mary’s v. Reed , 346 Ga. App. 508, 510, 816 S.E.2d 471 (2018) (photographs of crack in sidewalk that were taken at some point after plaintiff’s trip and fall do not support conclusion about age of alleged defect in roadway); City of Macon v. Brown , 343 Ga. App. 262, 265, 807 S.E.2d 34 (2017) (same, regarding photographs of broken pavement surrounding manhole that were taken two weeks after accident allegedly caused by manhole). They "do not establish how long the [condition] took to develop and worsen, and [there is no] additional evidence to contextualize or lend support to [Dale’s] arguments regarding the [condition of the manhole one year earlier]." City of Macon , supra. Dale’s expert witness did not discuss whether the condition of the manhole shown in the photographs also existed on the day of the incident; he merely gave an opinion based on those photographs, conceding that he did not know when they were taken. Dale could not testify to the manhole’s condition at the time of the incident because she did not see it before hitting it. And no other witness testified that the photographs of the manhole are consistent with how the area looked at the time of the incident. Compare Godinho v. City of Tybee Island , 231 Ga. App. 377, 379 (2), 499 S.E.2d 389 (1998) (witnesses testified about how scene depicted in photographs looked on day of incident), reversed on other grounds by City of Tybee Island v. Godinho , 270 Ga. 567, 511 S.E.2d 517 (1999).

Dale argues that there is evidence that the condition depicted in the photographs dated back to 2009, when the manhole was last inspected, because the city’s 30 (b) (6) representative testified that inspections only occurred in response to a reported problem. But there is no evidence that any problem that existed in 2009 concerned the same condition seen in the photographs. The only evidence arguably pertaining to the condition of the manhole in 2009 is the "Manhole Condition Assessment" that, as discussed above, Dale’s expert witness testified neither concerned the manhole in question nor addressed the alleged defect.

Dale argues that under the statute governing spoliation of evidence, OCGA § 24-14-22, the jury could presume that the 2009 inspection arose from a complaint about the same deteriorated condition shown in the photographs. But this spoliation presumption is a sanction for exceptional cases involving, among other things, bad faith on the part of the spoliating party, and it was for the trial court, in the exercise of his wide discretion, to decide whether such a sanction was appropriate. See Wilkins v. City of Conyers , 347 Ga. App. 469, 473, 819 S.E.2d 885 (2018) ; Sheats v. Kroger Co. , 342 Ga. App. 723, 726-727 (1), 805 S.E.2d 121 (2017) ; Jones v. Medical Center of Central Ga. , 341 Ga. App. 888, 893 (4), 802 S.E.2d 286 (2017). The issue of the spoliation presumption does not appear to have been raised to the trial court; the trial court did not charge the jury on that presumption, and the...