City of Douglasville v. Queen

• Decision Date: 08 March 1999
• Docket Number: No. S98G1208.,S98G1208.
• Citation: City of Douglasville v. Queen, 270 Ga. 770, 514 S.E.2d 195 (Ga. 1999)
• Parties: CITY OF DOUGLASVILLE v. QUEEN et al.
• Court: Georgia Supreme Court

514 S.E.2d 195

270 Ga. 770

CITY OF DOUGLASVILLE v. QUEEN et al.

No. S98G1208.

Supreme Court of Georgia.

March 8, 1999.

Reconsideration Denied April 2, 1999.

Charles R. Beans, Hawkins & Parnell, Atlanta, for City of Douglasville et al.

Johnny R. Pannell, Johnny R. Pannell, P.C., Hawkinsville, William L. Lundy, Jr., Parker & Lundy, Cedartown, for Ronnie H. Queen et al.

Walter Edwin Sumner, Susan Moore Pruett, Georgia Municipal Association, Atlanta, for amicus curiae. HUNSTEIN, Justice.

Twelve-year-old Rebecca Ann Queen was injured and ten-year-old Lisa Michelle Queen was killed when they were hit by a Norfolk Southern Railroad train. The girls were walking on the railroad tracks while traveling from their family's car back to their parents, who were positioned on railroad property adjacent to Highway 78 in downtown City of Douglasville awaiting the City's annual Fourth of July parade. Ronnie Queen, as parent and next friend of the girls and as administrator of Lisa Michelle's estate, brought suit against the City and the railroad.¹ Insofar as the City is concerned,² Queen's complaint as amended alleged negligence based on numerous instances of the City's failure to act,³ nuisance, premises liability and mantrap. The trial court granted the City's motion for summary judgment and the Court of Appeals affirmed the trial court's rulings on the mantrap and premises liability claims but reversed the grant of summary judgment on the negligence and nuisance claims. Queen v. City of Douglasville, 232 Ga.App. 68, 500 S.E.2d 918 (1998). We granted the City's petition for writ of certiorari to consider whether, as a matter of law, a city in conducting a discretionary exercise owes its citizens a duty to protect them from harm caused by third persons. Finding no such affirmative duty exists, we reverse the Court of Appeals and affirm the grant of summary judgment to the City on Queen's negligence and nuisance causes of action.⁴

1. To state a cause of action for negligence in Georgia, we held in Bradley Center v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693 (1982) that there must be (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.

"`Before negligence can be predicated upon a given act, some duty to the individual complaining must be sought and found, the observance of which duty would have averted or avoided the injury or damage....' [Cit.]" Porch v. Wright, 116 Ga. App. 138(1), 156 S.E.2d 532 (1967). "`No matter how innocent the plaintiff may be, he is not entitled to recover unless the defendant did something that [it] should not have done, or failed to do something that [it] should have done pursuant to the duty owed the plaintiff.' [Cit.]" Veterans Organization of Fort Oglethorpe v. Potter, 111 Ga.App. 201, 205(2), 141 S.E.2d 230 (1965).

Cechman v. Travis, 202 Ga.App. 255, 257(2), 414 S.E.2d 282 (1991). Hence, the grant of summary judgment to the City was proper if the record establishes that Queen cannot prove the City had a duty to the Queen girls which it breached, either in regard to actions it affirmatively undertook or in regard to actions it failed to undertake. Accord Young v. Wal-Mart Stores, 209 Ga.App. 199, 433 S.E.2d 121 (1993) (regardless of age or capacity of the injured person, if there is no breach of any legal duty on part of defendant toward such person, there can be no legal liability).

2. Queen's complaint is cast exclusively in terms of the City's failure to act, i.e., acts of nonfeasance. The City is under no statutory obligation to perform any of the acts alleged in the complaint. Therefore, as a matter of law, Queen cannot establish any breach of duty in regard to the alleged nonfeasance, since OCGA § 36-33-2 expressly provides that "[w]here municipal corporations are not required by statute to perform an act, they may not be held liable for exercising their discretion in failing to perform the act." Accord Tamas v. City of Columbus, 244 Ga. 200, 202, 259 S.E.2d 457 (1979).

3. To the extent that Queen's allegations may be read as including acts of misfeasance, they likewise fail as a matter of law. The Court of Appeals reversed the grant of summary judgment to the City on Queen's negligence claim on the basis that fact questions remain whether the City committed an act of misfeasance when it held the Fourth of July parade in the vicinity of the railroad tracks. In regard to the affirmative act of planning and executing a parade, the City owed parade spectators a duty to exercise ordinary care for their protection. See generally Bradley Center, supra. The evidence, however, is uncontroverted that this duty was not breached by the City. The evidence establishes, inter alia, that the Queen girls were not injured by any participant in or spectator to the parade; they were not injured while on City property due to any defect the City knew or should have known to exist; they were not injured on private property by a dangerous condition created or maintained by the City; the City did not own, possess or exercise any degree of control over the railroad tracks where the Queen girls were injured; and the routing of the parade did not require spectators to sit on railroad property since there was a City sidewalk located directly across the street. Further, there is no evidence that the Queen girls were forced by any obstruction on City property to detour onto the railroad property, compare Zettler v. City of Atlanta, 66 Ga. 195, 196-197 (1880), or that the railroad tracks so closely adjoined the street that use of the street was thereby rendered unsafe and dangerous. Compare Harrell v. Mayor &c. of Macon, 1 Ga.App. 413, 415, 58 S.E. 124 (1907).

The record in this case reveals that there are no allegations asserted and no inferences adduced from the evidence that would create a question for the factfinder regarding the breach of any duty the City owed the Queen girls. Legal liability cannot be established by the bare fact that the girls were injured while awaiting the City's parade: "one who legally uses city streets for parade purposes is not an insurer of the safety of the spectators." Armburst v. Cox Broadcasting Corp., 117 Ga.App. 381, 383, 160 S.E.2d 609 (1968). Individuals attending a municipal parade may reasonably be expected to walk on train tracks adjacent to the parade route, just as they may reasonably be expected to park in commercial parking lots within walking distance of the parade or to traverse private property to reach the best locations for watching the parade; in doing so, they may also reasonably be expected to encounter hazards not created or maintained by the municipality. We decline to hold that the foreseeability of such situations places an affirmative duty upon a municipality to protect individuals from all privately-created and privately-maintained hazards they might encounter on the properties of third parties while approaching, viewing, and departing the parade. "[A] person is under no duty to rescue another from a situation of peril which the former has not caused. [Cits.]" Alexander v. Harnick, 142 Ga.App. 816, 817(3), 237 S.E.2d 221 (1977).

4. The Court of Appeals also reversed the grant of summary judgment to the City on Queen's nuisance claim. "A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance." OCGA § 41-1-1. "That which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance. [Cits.] ... Thus, where the act is lawful in itself, it becomes a nuisance only when conducted in an illegal manner to the hurt, inconvenience or damage of another. [Cits.]" Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 425(3)(b), (c), 249 S.E.2d 224 (1978).

It is not unlawful for a railroad company to operate trains on its property. OCGA § 46-8-100. It is not unlawful for streets within a city to be adjacent to railroad tracks. OCGA §§ 32-4-92; 46-8-120 et seq. It is not unlawful for the City of Douglasville to sponsor a parade through its streets. Ga. L.1972, § 1.03(s), pp. 2119, 2126. Thus, it was not unlawful for the City to route the parade in issue onto those streets that passed next to railroad property. Accordingly, we reject as a matter of law the position that the City's holding of its parade in the vicinity of railroad property which contained no danger created or maintained by the City constituted a nuisance.⁵ To hold otherwise would be to label as a nuisance any properly-conducted activity held by a public entity on any of its property that is adjacent to and does not improperly encroach upon railroad tracks.

Finally, even accepting, arguendo, the position that the City's act in holding the parade can qualify as a nuisance, "[a] public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals." OCGA § 41-1-2.

This language is not used in the sense that every person in the area must have been actually hurt or injured in order to show a public nuisance. It is sufficient if it injures those of the public who may actually come in contact with it. A public nuisance exists if the act complained of affects rights which are common to all within a particular area.

(Punctuation, citations and footnote omitted.) Moreland v. Cheney, 267 Ga. 469-470, 479 S.E.2d 745 (1997).

The undisputed evidence showed that during the 30 or more years prior to the injuries incurred by the Queen girls, no other parade spectator had ever been injured by a train on the railroad tracks. "Inasmuch as a public...