City of Fitzgerald v. Caruthers

• Decision Date: 02 July 2015
• Docket Number: No. A15A0442.,A15A0442.
• Citation: City of Fitzgerald v. Caruthers, 332 Ga.App. 731, 774 S.E.2d 777 (Ga. App. 2015)
• Parties: The CITY OF FITZGERALD v. CARUTHERS.
• Court: Georgia Court of Appeals

332 Ga.App. 731

774 S.E.2d 777

The CITY OF FITZGERALD

v.CARUTHERS.

No. A15A0442.

Court of Appeals of Georgia.

July 2, 2015.

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, Brian Jason Miller, James Bryant Thagard, Valdosta, for Appellant.

Hinton & Powell, Andrew J. Hinton Jr., Montlick & Associates, Kathleen M. Edwards-Opperman, for Appellee.

Opinion

MILLER, Judge.

Larry Caruthers sued the City of Fitzgerald (the “City”) alleging that the City was liable for damages for failing to remove a decayed tree limb that crashed down on him while he was standing on a curb. The trial court denied the City's motion for summary judgment, concluding that the City was not entitled to sovereign immunity because a question of fact existed as to whether the City had notice of the decayed tree limb.¹ We granted the City's application for interlocutory review, and on appeal, the City contends that the trial court erred in denying its motion for summary judgment because there was no evidence that the City had actual or constructive notice of the hazardous tree. For the following reasons, we affirm.

Summary judgment is proper when the moving party shows that no genuine issue of material fact exists, and that the movant is entitled to judgment as a matter of law. We apply a de novo standard of review to an appeal from a grant or denial of summary judgment and construe the evidence most favorably to the nonmovant.

(Footnotes omitted.) Welch v. Ga. Dept. of Transp., 283 Ga.App. 903, 642 S.E.2d 913 (2007).

So viewed, the evidence shows that Caruthers, who worked for the City's Public Works Department, was walking home from work on the afternoon of March 23, 2010. Caruthers walked home down an alley between Magnolia and Jessamine Streets. When Caruthers reached the curb on Jessamine Street, a tree limb fell and struck him, rendering him unconscious for approximately 20 minutes and causing injuries to his neck and upper back, as well as lacerations to his eye. Caruthers was taken to the hospital.

Later that night, the Director visited the scene of the accident and observed a rotten limb lying in the road. The Director also observed the tree in a declining state with some rotten limbs at the top of it. Based on these observations, the Director ordered the tree to be removed, but he did not document the work request, nor did he take any pictures of the tree. The Director conceded that he had no specialized training in evaluating trees, and that his conclusion that the tree was slowly dying was based on his experience as a layperson.

Removal of the decayed tree began the following day with the limbs being cut down first. Before the stump was removed, Caruthers, who had been released from the hospital, saw that the stump had rotten parts.

At the time of Caruthers's injury, the City's Public Works Department employed 38 individuals to maintain the public thoroughfares in the City, including the maintenance of trees located on City property. In less than one month, these employees would cover all of the City's streets. Additionally, Caruthers was aware that several trees in the area had been trimmed about a year before his injury because of complaints that the limbs were obstructing bus traffic.

The Director admitted that the Public Works Department did not have a procedure for the inspection of trees on City property. Instead, the Director held periodic safety meetings with the employees of the Public Works Department where the Director instructed the employees to be aware of their surroundings and to report any hazards they might encounter.

The Public Works Department also received reports from city residents about hazardous trees. Upon receiving a report, the department would usually generate a work order that would be given to a crew member. The Director conceded, however, that written work orders were not always prepared. The Public Works Department did not maintain duplicates of work orders, and the department did not have any written documentation showing whether work orders had been completed. While the Director was not aware of any complaints made about the condition of the tree in question before the limb fell on Caruthers, not every complaint was documented, so he conceded that there may have been complaints about the tree in question that were not on file with the City.

On appeal, the City contends that the trial court erred in denying its motion for summary judgment, because there is no evidence that the City had actual or constructive notice of the decaying tree. We disagree.

Although the City raises the issue of sovereign immunity, a municipality's function of improving or maintaining its streets and sidewalks in a safe condition has long been held to be ministerial in nature. City of Atlanta v. Atlantic Realty Co., 205 Ga.App. 1, 3–4(2), 421 S.E.2d 113 (1992). Sovereign immunity does not shield a municipality from liability for failing to perform or negligently performing a ministerial duty. OCGA § 36–33–1(b) ; see also City of Atlanta v. Durham, 324 Ga.App. 563, 565, 751 S.E.2d 172 (2013) (“[M]unicipalities have been subject to suit for negligent performance or nonperformance of their ministerial functions while enjoying immunity from suit for the negligent performance or nonperformance of their governmental functions.”) (citations omitted). Consequently, it is well settled that a municipal corporation has a duty to keep its streets and sidewalks in a reasonably safe condition for travel and may be liable for damages for injuries sustained as a result of its breach of that duty. Roquemore v. City of Forsyth, 274 Ga.App. 420, 422, 617 S.E.2d 644 (2005).

More specifically, under OCGA § 32–4–93(a),

municipalities generally have a ministerial duty to keep their streets in repair, and they are liable for injuries resulting from defects after actual notice, or after the defect has existed for a sufficient length of time for notice to be inferred. This Court has held that the term “defects” covered by this Code section includes defects brought about by the forces of nature and by persons and which render the street unsafe and includes objects adjacent to and suspended over the street.

(Citations and punctuation omitted.) Roquemore, supra, 274 Ga.App. at 423, 617 S.E.2d 644. “The length of time a defect must exist in order for an inference of notice to arise is ordinarily a question for the jury.” (Punctuation and footnote omitted.) Schuessler v. Bennett,

287 Ga.App. 880, 886 –887(3), 652 S.E.2d 884 (2007).

With regard to liability for a decaying tree, while there is no duty to routinely inspect trees for non-visible rot, a landowner has a duty to inspect trees with “visible, apparent, and patent” decay. Wesleyan Coll. v. Weber, 238 Ga.App. 90, 94(b), 517 S.E.2d 813 (1999). If the landowner knew or reasonably should have known that the tree was “diseased, decayed or otherwise constituted a dangerous condition,” the owner has a duty to remove the danger. See Ga. Dept. of Transp. v. Smith, 314 Ga.App. 412, 416(2), 724 S.E.2d 430 (2012). A landowner is charged with knowledge of the dangerous condition of a tree if a layperson should have known the tree was diseased. Id. (“Defendant would not be charged with the knowledge or understanding of an expert trained in the inspection, care and maintenance of trees.”) (punctuation and footnote omitted).

As to actual notice, the City admitted that it did not document every complaint about hazardous trees. As the non-movant, Caruthers was not required to submit evidence of actual notice because

[o]n a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden, and the moving party's papers are carefully scrutinized, while the opposing party's papers, if any, are treated with considerable indulgence.

(Punctuation omitted.) Carter v. Mayor & Alderman of City of Savannah, 200 Ga.App. 263, 266(1), 407 S.E.2d 421 (1991). Viewing the evidence in the light most favorable to Caruthers, there is a question of fact as to whether the City had actual notice of the hazard because of the City's own lack of documentation on the issue.

Moreover, even if the City did not have actual notice, there is a question of fact as to whether the City had constructive notice. Notably, the Director testified that he observed dead limbs on the tree in question, and Caruthers noticed that the stump also showed signs of rot and decay. The Director's opinion that the tree was in a declining state, or was slowly dying, was based upon a layperson's experience and knowledge, as he testified that he had no specialized training in evaluating trees. Based on this evidence, there is a jury question as to whether the decay was visible and apparent such that the City knew or should have known that the tree was diseased and, as a result, whether the City was liable for breaching its duty to remove it. See Wesleyan College, supra, 238 Ga.App. at 90, 93–94 (a)–(c), 517 S.E.2d 813 (four-foot-long cavity in a ninety-four-foot-tall pine tree that was observable to a layperson and signs of nearby blighted trees raised a jury question as to whether the landowner knew or should have known about a diseased and dangerous tree and whether the landowner breached a duty to remove the hazard); cf. City Council of Augusta v. Hammock, 85 Ga.App. 554, 560 –561(4)(b), 69 S.E.2d 834 (1952) (it was a question for the jury to determine whether the city had exercised ordinary care in failing to discover and remove a large dead limb that fell from a tree and struck a pedestrian). Accordingly, the trial court did not err in denying the City's motion for summary judgment.

Judgment affirmed.

ANDREWS, P.J., concurs specially.

BRANCH, J., concurs in judgment only.

ANDREWS, Presiding Judge, concurring specially.

I agree with the majority opinion that the trial court...