Clark v. Raymond J. Pitts, Inc.

• Decision Date: 05 September 1979
• Docket Number: No. 57915,57915
• Citation: 151 Ga.App. 192,259 S.E.2d 189
• Parties: CLARK v. RAYMOND J. PITTS, INC. et al.
• Court: Georgia Court of Appeals

Page 189

259 S.E.2d 189

151 Ga.App. 192

CLARK v. RAYMOND J. PITTS, INC. et al.

No. 57915.

Court of Appeals of Georgia.

Argued May 29, 1979.

Decided Sept. 5, 1979.

Nolan B. Harmon, John M. Leiter, Atlanta, for appellant.

Paul A. Howell, Judson Graves, Ben Kingree, III, James Barnett, Atlanta, for appellees.

CARLEY, Judge.

The appellee-Metropolitan Atlanta Rapid Transit Authority (MARTA) contracted with appellee-Pitts Construction Company (Pitts) for the construction of certain drainage facilities. Appellee-Parsons-Brinckerhoff-Tudor (PBT) was design engineer for the MARTA project. Pursuant to its contractual agreement, Pitts had excavated a trench approximately 25 feet deep and 10 feet wide in Oakdale Road, a city street located within the municipal limits of the appellee-City of Atlanta (City). The Oakdale Road area is residential and heavily populated.

On July 29, 1977, PBT informed Pitts: "In spite of repeated site instructions you have not yet cleaned the excavated soil beyond the street right of way. You are once again directed to confine your operations within the street right of way limits. Pedestrian traffic and all local vehicular traffic has to be maintained at all times. On an inspection at 11:00 am on (t)hursday, July 28th, it was observed that the deep excavated trench was left improperly barricaded. Please ensure that proper lighted barricades are provided at all times." Complaints continued to be made, however, and on August 10, 1977, a letter from the president of the Candler Park Neighborhood Organization to the chairman of the City's Utilities Committee was read at the committee's meeting. Included in this letter were specific complaints about the piling of dirt on the sidewalk and the safety hazard presented to children by the trench. As the result of a meeting between neighborhood residents and the appellees, it was agreed that the encroachment upon adjoining property of excavated dirt would be removed and that the sidewalks would be "cleared of obstructions at all times."

On September 24, 1977, prior to departing the construction site, Pitts' employees had placed wooden barricades with flashing lights along one side of the trench. At either end, a piece of machinery was placed to block entry to the site. On the other side, however, the sole "barricade" was a stockpile of dirt from the excavation. This mound of dirt was piled or had spilled onto and covered a portion of the public sidewalk so as to totally prohibit passage without crossing over it. While the seven year old plaintiff was playing on this public sidewalk, he climbed halfway up the dirt pile on the sidewalk side the side sloping away from the open trench. The dirt beneath the plaintiff began to collapse and, as he began to scramble down the pile, a cave-in occurred, sweeping him into the excavation. He sustained numerous injuries, including a broken thigh.

Plaintiff subsequently brought a suit seeking money damages against the appellees alleging that his injuries were the result of their negligence. After extensive discovery, appellees moved for summary judgment. Plaintiff appeals from the trial court's order granting summary judgment to all appellees.

1. The appellees urge, in support of their grant of summary judgment, that they owed no duty to plaintiff and cannot, therefore, be found negligent. We do not agree.

This is not a case involving injuries sustained on private property. Compare, e. g., Crosby v. Savannah Electric, Etc., Co., 114 Ga.App. 193, 150 S.E.2d 563 (1966); Washington v. Trend Mills, Inc., 121 Ga.App. 659, 175 S.E.2d 111 (1970); Montega Corp. v. Grooms, 128 Ga.App. 333, 196 S.E.2d 459 (1973); Rutledge v. City of Atlanta, 130 Ga.App. 99, 102(2), 202 S.E.2d 571 (1973); Brooks v. Logan, 134 Ga.App. 226, 213 S.E.2d 916 (1975); Higginbotham v. Winborn, 135 Ga.App. 753, 218 S.E.2d 917 (1975); Epps v. Chattahoochee Brick Co., 140 Ga.App. 426, 231 S.E.2d 443 (1976); Holcombe v. Harris, 143 Ga.App. 173, 237 S.E.2d 677 (1977). Neither is this a case involving injuries sustained on municipal property conclusively closed to the public. Cf., e. g., Fickling v. City Council of Augusta, 110 Ga.App. 330, 138 S.E.2d 437 (1964); Oliver v. City of Atlanta, 147 Ga.App. 790, 250 S.E.2d 519 (1978). Nor is it a case involving injuries sustained on a road which was under construction and not yet open to the public. Compare, e. g., Marshall v. Hugh Steele, Inc., 122 Ga.App. 114, 176 S.E.2d 554 (1970); Barber v. Steele, 133 Ga.App. 290, 211 S.E.2d 133 (1974). It is, rather, a case involving injuries sustained when, construing the evidence as we must upon summary judgment, an obstruction upon a public sidewalk caused the plaintiff to fall into an excavation in a public street.

"It is the duty of the city to keep its streets and sidewalks in a safe condition for travel in the ordinary modes, . . . , and if it fails to do so, it is liable for damages for injuries sustained in consequence of such failure. (Cits.) The whole of the street used by the public must be kept in a reasonably safe condition. (Cits.) 'The municipality should not allow obstructions or excavations to adjoin the traveled way which will render its use unsafe and dangerous. The public is entitled to the use of the whole street from side to side and from end to end.' (Cits.) 'Cities are liable for negligently permitting unguarded excavations near the line of the road or street.' (Cit.) . . . In the instant case the evidence shows that the plaintiff was hurt by falling into a gully or ditch in a public alley, between the sidewalk and the street, and therefore being a portion of the street, and commonly used as a thoroughfare. Whether the gully or ditch, in the place where it was, and of the width and depth that it was, was such an excavation as to render the thoroughfare unsafe for travel by day or night, presented questions of fact for the exclusive determination of the jury, under proper instructions from the court. (Cit.)" Harrell v. Mayor, Etc., of Macon, 1 Ga.App. 413, 415, 58 S.E. 124, 126 (1907).

The appellees argue that the plaintiff was not on the sidewalk when the injury was sustained but, rather was on the sandpile and that the sandpile was itself a "barrier" preventing approach to the excavation and was part of the worksite. It is urged that, on these facts, the area wherein the injury occurred "would presumptively be closed to the public, a fact which would seem to be indicated by the very nature of the work being done and the improvements being made." Jackson v. Sheppard, 62 Ga.App. 142, 144, 8 S.E.2d 410, 412 (1940). This argument, however, totally ignores the fact that the sandpile had covered a public sidewalk that the appellees had agreed to maintain free of obstacles at all times. If, here, the plaintiff was not On the public sidewalk, it was because it was covered by the sandpile. In Jackson, it was clear that plaintiff's deceased Had left the public sidewalk and Had entered the construction site. Jackson was also decided prior to the effective date of our CPA, the allegations of plaintiff's petition thus being most strongly construed Against him on general demurrer. Therefore, Jackson is either procedurally distinguishable or its facts show "plain, palpable and undisputable" negligence on the part of the deceased. See generally Ellington v. Tolar Const. Co., 237 Ga. 235, 237, 227 S.E.2d 336 (1976). Under either rationale, it has no bearing in the instant appeal. See the discussion of contributory negligence in Division 2, infra.

Here, however, it is uncontroverted that the plaintiff was on the sandpile which covered the public sidewalk so as to prevent passage along the thoroughfare without crossing over it. Compare Rutledge, supra. Furthermore, it is undisputed that the sandpile Itself was not barricaded. The plaintiff alleges that while he was upon this unbarricaded sandpile which was covering a public sidewalk, he was swept over and into the excavation. Under these circumstances, we believe it would be for a jury to decide whether or not the unbarricaded sandpile "closed" the sidewalk to the public. "(H)ere the nature of the work, which was not alleged to be taking place on the sidewalk, was not such as to create (a presumption that the sidewalk was closed to the public) as a matter of law" Bazemore v. MacDougald Const. Co., 85 Ga.App. 107, 113, 68 S.E.2d 163, 168 (1951)....