City of Vidalia v. Brown

• Court: Georgia Court of Appeals
• Writing for the Court: ANDREWS.
• Citation: City of Vidalia v. Brown, 237 Ga. App. 831, 516 S.E.2d 851 (Ga. App. 1999)
• Decision Date: 29 April 1999
• Docket Number: No. A99A0518, No. A99A0519.
• Parties: CITY OF VIDALIA v. BROWN et al. Brown et al. v. City of Vidalia.

516 S.E.2d 851

237 Ga. App. 831

CITY OF VIDALIA v. BROWN et al.

Brown et al. v. City of Vidalia.

Nos. A99A0518, A99A0519.

Court of Appeals of Georgia.

April 29, 1999.

Certiorari Denied September 17, 1999.

Ellis, Easterlin, Peagler, Gatewood & Skipper, George M. Peagler, Jr., Americus, Andrew & Threlkeld, Reid A. Threlkeld, Vidalia, for appellants.

Callaway, Neville & Brinson, William E. Callaway, Jr., Barbara J. Nelson, Claxton, for appellees.

ANDREWS, Judge.

Mona Lisa Brown sued the City of Vidalia alleging she was injured when she stepped in a hole located on City-owned property and fell. Brown's husband joined in the suit by bringing a loss of consortium claim. The Browns sought to recover damages from the City under two theories alleged in their complaint: first, that the hole was a defect in a public street or sidewalk for which the City was liable in negligence under OCGA § 32-4-93, and second, that the hole was a nuisance for which the City was liable. The trial court granted summary judgment in favor of the City on the negligence claim but denied the City's motion for summary judgment on the nuisance claim. In Case No. A99A0518, we granted the City's application for an interlocutory appeal from the denial of summary judgment on the nuisance claim. In Case No. A99A0519, the Browns appeal from the grant of summary judgment in favor of the City on the negligence claim.

1. First, we address the Browns' claim that the City was liable pursuant to OCGA § 32-4-93 for negligently failing to properly maintain a City street or sidewalk.

Ms. Brown testified that she stepped in a hole, fell, and was injured when she and her children were walking from house to house in a residential subdivision of Vidalia while trick-or-treating on Halloween night. The houses faced Clyde Boulevard, a paved street running down the middle of a 50-foot wide right-of-way owned by the City. The paved street was nineteen feet, four inches wide, leaving a distance of fifteen feet, four inches on both sides of the street from the edge of the pavement to the boundary line between the City right-of-way and the front yards of the houses. In addition to maintaining the paved street, the City maintained an unpaved street shoulder five feet, four inches wide immediately adjacent to the pavement on both sides of the street. The remaining ten-foot strip on both sides of the street from the outer edge of the street shoulder to the boundary line of the City right-of-way contained a drainage system for the residential subdivision and various public utility lines.

The hole at issue, which was about three feet long and one and a half feet wide, was in a grassy area about nine feet from the edge of the paved street, placing it within the above-described ten-foot wide strip constituting the outer portion of the City right-of-way. The hole was between a residential mailbox located about eight feet from the edge of the paved street and a telephone pole and a television cable box located about 15 feet from the edge of the paved street. Ms. Brown testified that she stood in front of a house watching her children obtain Halloween treats at the house. The house had a driveway which provided a safe means of access from the house to the street. When her children left the house, Ms. Brown walked parallel to the street across the driveway of the house into the grassy drainage area between the mailbox and the telephone pole and cable box and stepped into the hole. She said the area was generally illuminated by porch lights from the houses, but she did not see the hole before she stepped into it. The grass in the area had been mowed by the occupant of the house, so the hole was not obscured.

City officials denied having any actual knowledge of the hole, but the occupant of the house located in front of the hole said she notified the City about the hole 11 months prior to the date of the accident. Excluding nonprobative hearsay, there was no evidence as to who dug the hole. The public works director for the City deposed that the area in which the hole was located was not part of the City street "nor has said area ever been maintained, accepted, dedicated, or intended by the City of Vidalia for use as a municipal street or sidewalk."

Section 32-4-93(a) provides that:

A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.

This Code section is an exception to the general rule that a city enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function. OCGA § 34-4-93(a) imposes liability on a municipality, not only for the negligent failure to keep city streets free from defects, but also city sidewalks, which are deemed part of the streets. City of Atlanta v. Hampton, 139 Ga. 389, 391, 77 S.E. 393 (1913); Hammock v. City Council of Augusta, 83 Ga.App. 217, 63 S.E.2d 290 (1951). A city has the duty to use ordinary care to keep city streets and sidewalks in a reasonably safe condition for use by persons in the ordinary methods of travel. City of Marietta v. Godwin, 106 Ga.App. 113, 117, 126 S.E.2d 302 (1962); City of Barnesville v. Sappington, 58 Ga.App. 27, 28, 197 S.E. 342 (1938). Thus, a city is liable for defects in streets and sidewalks negligently caused by its own agents or employees. Id. Likewise, a city is liable for such defects caused by strangers or forces of nature, where the city had notice of the defect and failed to exercise ordinary care to remove it, or where the defect had existed for such a length of time that it would be reasonable to conclude the city should have learned of the defect and exercised ordinary care to remove it. Id.

Nevertheless, where a plaintiff alleges that the defective condition which caused injury was located on a part of the city's street and sidewalk system, there must be some evidence that the defect was located in an area accepted by the city, either expressly or by implication, for use as a street or sidewalk, before the city can be charged with liability for negligently failing to maintain the area in a reasonably safe condition. Kesot v. City of Dalton, 94 Ga.App. 194, 198, 94 S.E.2d 90 (1956). Even where a sidewalk is established, a city is only required to keep in reasonably safe condition all parts thereof intended to be used by the public. City of Atlanta v. Milam, 95 Ga. 135, 137, 22 S.E. 43 (1894); City Council of Augusta v. Tharpe, 113 Ga. 152, 38 S.E. 389 (1901); Hammock, 83 Ga.App. at 217, 63 S.E.2d 290. For example, the public is not generally expected to use areas on the margins of a sidewalk occupied by obstructions such as telephone poles, water-plugs, and trees. Milam, 95 Ga. at 136-137, 22 S.E. 43; compare Haygood v. City of Marietta, 108 Ga.App. 99, 102-103, 131 S.E.2d 856 (1963) (grass plot between the sidewalk and the street curb may be considered a part of the sidewalk where use of the grass plot is not forbidden or restricted).

Although there was no paved sidewalk adjacent to the street, evidence showed that pedestrians ordinarily walked along the edge of the paved street or on the unpaved street shoulder. However, the hole at issue was not located on the paved street, nor was it located on the adjacent unpaved five-foot, four-inch wide strip maintained by the City as the shoulder of the paved street. Rather, the hole was located an additional four feet outside the street shoulder (a total distance of approximately nine feet from the edge of the paved street) in the grassy drainage area which also contained public utility lines and a residential mailbox. Moreover, the hole was situated between the residential mailbox located about eight feet from the paved street and a telephone pole and cable television box located about 15 feet from the street. There was no evidence that the area where the hole was located was expressly or by implication accepted by the City as a sidewalk. Kesot, 94 Ga.App. at 196-198,94 S.E.2d 90. In fact, the nature of the area, along with the obstructions adjacent to the hole, showed the area was not intended for use by the public as a sidewalk, and there was no evidence that the public commonly used the area for walking. Evidence that Ms. Brown and other trick-or-treaters cut across this area while canvassing houses on Halloween night did not transform the area into a sidewalk which the City was required to keep in a reasonably safe condition for pedestrians.

The record plainly and indisputably shows that the hole was not located on a City street or sidewalk. Accordingly, the trial court correctly granted summary judgment in favor of the City on the Browns' claim that the hole was a defective...