City of Gainesville v. Pritchett, 48189
| Decision Date | 12 July 1973 |
| Docket Number | No. 2,No. 48189,48189,2 |
| Parties | CITY OF GAINESVILLE v. R. A. PRITCHETT et al |
| Court | Georgia Court of Appeals |
Palmour & Palmour, J. E. Palmour, Jr., Gainesville, for appellant.
Manning, Read & Richardson, Curtis R. Richardson, Decatur, for appellees.
Syllabus Opinion by the Court
This is an appeal by the City of Gainesville from the denial of its motion for summary judgment in a nuisance action. We find that genuine issues of material fact remain, and affirm the ruling of the trial judge.
Mr. and Mrs. Pritchett, appellees here, suffered property damage and personal injury on July 11, 1971, when in cruising the channel of the Chattahoochee River in Lake Sidney Lanier after dark they collided with a ski jump barge or float which had been towed into the channel and left there since approximately July 3. The barge had been used for a ski jump show given in conjunction with a presumably non-profit July Fourth celebration which had been the result of planning and entertainment by the Chattahoochee Ski Club, Inc.; Park and Recreation Department of the City of Gainesville; and Paul E. Bolding Post No. 7, the American Legion, Inc.
The Pritchett's claim for damages in two counts, negligence and nuisance, named the City and the Legion as defendants. Answering, the City raised numerous defenses and moved for dismissal of Count 1 as to it, on the ground that the City's efforts were undertaken in its governmental capacity and no liability would attach for negligence. This motion was granted, leaving only the nuisance count pending against the City. Subsequently, the City moved for summary judgment. The motion was overruled and this appeal was taken.
In support of its position that it should have had summary judgment, the City raises five issues which we resolve as follows:
1. The alleged acts were performed within the City's governmental capacity and therefore no liability can attach. This defense to a nuisance claim must fail, because it makes no difference whether the underlying activity be governmental or proprietary (ministerial): Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 837, 165 S.E.2d 141, 144 (1968). See Note, 5 Ga.S.B.J. 474 (1969).
2. The damages are too remote and intervening causes preponderate too greatly to permit recovery against the City. This contention may be answered merely by stating that questions of proximate causation except in the clearest cases are questions of fact. Here, the City simply denies that it participated or requested the placement of the barge in the lake. However, the evidence shows that an employee of the City did participate to an indeterminate extent in preparations for the festivities as will be discussed below, and a resolution of the questions raised on this point is properly for the trier of fact.
3. Neither the Park and Recreation Department of Gainesville nor its employee had authority to bind the City to an agreement with the ski club for joint participation in the skiing display, and therefore, these acts were ultra vires and the City has no responsibility.
Questions of the existence and extent of an agent's authority are generally for the trier of fact. 1 Encyclopedia of Ga.Law, Agency § 45 (1960). The City appended to its motion the affidavit of White, the Superintendent of the Department, stating that he did not authorize the employee to undertake any obligations for the department in connection with the celebration. Nonetheless, as the affidavit states, he did designate the employee to 'talk with' other prospective participants and 'assist . . . in planning that event.' On his deposition when asked whether the Legion had ordered a particular type of entertainment, the employee answered, 'No, we were in charge of the programming, the entertainment part.' (Emphasis supplied.) The Legion representative referred to, in his deposition, stated his understanding of the arrangement, which was that '. . . it was just sort of a, you know. he said that the park would do this-park and rec (presumably, Park and Recreation Department of the City) would do this and it just happened.'
Here, examination of the record reveals at least some evidence tending to show that the July Fourth celebration was a result of the combined endeavors of the Legion, the ski club, and the City. Although the White affidavit denies the existence of the employee's actual authority to participate in sponsoring the festivities, the City does not contend that he was without apparent authority to act for the City in these negotiations. Regardless of the degree of actual authority extended by a principal to his agent as between the two of them, nonetheless the principal will be liable for certain acts of his agent within the scope of the agent's apparent authority. Commercial Auto Loan Corp. v. Baker, 73 Ga.App. 534, 37 S.E.2d 636. In giving the Pritchetts the benefit of all favorable inferences that may be drawn from the evidence, as we must do, Holland v. Sanfax Corp., 106 Ga.App. 1, 126 S.E.2d 442, we find remaining issues of apparent authority which must be resolved by the trier of fact.
4. The City contends that it is not liable because the injury occurred outside the City's...
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