City of Bowman v. Gunnells

• Citation: 256 S.E.2d 782,243 Ga. 809
• Decision Date: 20 June 1979
• Docket Number: No. 34481,34481
• Parties: CITY OF BOWMAN v. GUNNELLS et al.
• Court: Supreme Court of Georgia

Page 782

256 S.E.2d 782

243 Ga. 809

CITY OF BOWMAN v. GUNNELLS et al.

No. 34481.

Supreme Court of Georgia.

Argued March 12, 1979.

Decided June 20, 1979.

Lavender, Lavender & Phelps, Robert W. Lavender, Woodrow W. Lavender, Elberton, for appellant.

Walter E. Sumner, Atlanta, for amicus curiae.

Davis, Davidson & Hopkins, Jack S. Davidson, Jefferson, Walter J. Gordon, Hartwell, Kenyon, Hulsey & Oliver, Julius M. Hulsey, Richard W. Story, Gainesville, Erwin, Epting, Gibson & McLeod, Eugene A. Epting, Athens, for appellees.

JORDAN, Justice.

We granted certiorari to review the decision of the Court of Appeals in City of Bowman v. Gunnells, 148 Ga.App. 27, 251 S.E.2d 39 (1978) which held that there was an issue of fact "as to whether the city created a nuisance when it failed to replace a light bulb which had burned out behind a red reflector in a traffic light after it had notice that the light was malfunctioning."

Our grant of certiorari posed the questions of (1) whether the Court of Appeals misconstrued this court's decision in Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834, 165 S.E.2d 141 (1968), and (2) whether this court should enunciate a more definitive description of what constitutes a nuisance.

The following facts appear to be undisputed: On August 4, 1975, at approximately 12 o'clock noon the chief of police of the City of Bowman observed that one bulb in the traffic light at an intersection was not burning. He immediately notified the city clerk of the burned out bulb, who in turn promptly called the Georgia Power Company which was under contract to replace burned out bulbs in the city's traffic lights. Neither the chief nor the clerk took any other action. The Georgia Power Company, though it received notice of the burned out bulb at approximately 12:30 p. m., did not replace the bulb until about 4 p. m.

At approximately 1:55 p. m., some two hours after the malfunctioning, the respondents were injured in a car-truck collision at the intersection allegedly caused by the defective traffic light. There had been no previous collisions or accidents at the intersection on the day of this accident.

1. We hold as a matter of law that under the facts stated above that the City of Bowman cannot be held liable under the theory of maintaining a nuisance. To hold otherwise would greatly extend the holding of this court in Town of Ft. Oglethorpe, supra, and its progeny.

The law is clear in Georgia, and we so stated in Mayor etc. of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978) that "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," citing Town of Ft. Oglethorpe, supra, and other cases. In the same case, in which we undertook an analysis of the Georgia Law on municipal tort liability for maintenance of a nuisance, we also clearly stated that "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 . . .", citing cases.

Under this and the other guidelines in Palmerio, supra, 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. The facts in Town of Ft. Oglethorpe clearly met this definition of what it takes to constitute a nuisance by allowing the dangerous condition to exist for two weeks with knowledge by the town of numerous accidents with no corrective action on its part. There we held that such facts took the case "beyond mere negligence and into a situation which constitutes a nuisance." The state of facts in the case under consideration is a "far cry" from the facts in Ft. Oglethorpe. Here the city took prompt action upon knowledge of the defect and the dangerous condition had existed less than two hours when the accident occurred.

2. Neither this court, nor any other court to our knowledge, has been able to give a precise legal definition of nuisance that would apply to all situations. It has been said that pornography cannot be defined but you know it when you see it. A nuisance is in a similar category. While ordinarily whether a nuisance exists is a question of fact for a jury (Bowen v. Little, 139 Ga.App. 176, 228 S.E.2d 159 (1976); City of Gainesville v. Pritchett, 129 Ga.App. 475, 199 S.E.2d 889 (1973)) under some factual situations it can be held as a matter of law that no nuisance exists.

In City of Atlanta v. Roberts, 133 Ga.App. 585, 211 S.E.2d 615 (1974) the Court of Appeals in a full court opinion, upheld the grant of a summary judgment for the city on the theory of maintenance of a nuisance. There it was alleged that the city had left a disabled, unlighted garbage truck on a heavily traveled public street at night after notice to the city for a period of four...