Combs v. Atlanta Auto Auction, Inc.

• Decision Date: 05 July 2007
• Docket Number: No. A07A0514.,A07A0514.
• Citation: 287 Ga. App. 9,650 S.E.2d 709
• Parties: COMBS v. ATLANTA AUTO AUCTION, INC.
• Court: Georgia Court of Appeals

287 Ga. App. 9

650 S.E.2d 709

COMBS v. ATLANTA AUTO AUCTION, INC.

No. A07A0514.

Court of Appeals of Georgia.

July 5, 2007.

Reconsideration Denied July 31, 2007.

Cathey & Strain, Edward E. Strain III, David A. Sleppy, Lisa J. Bucko, Robert Peter Marcovitch, Cornelia, for appellant.

Cruser & Mitchell, William T. Mitchell, Deana L. Simon-Johnson, Norcross, for appellee.

MILLER, Judge.

Shanandoah Combs brought this wrongful death and personal injury action against Atlanta Auto Auction, Inc. (the "Auction"), alleging that the Auction's conduct contributed to or caused an automobile accident (the "underlying accident") in which two of Combs' minor children were killed and a third was severely injured. The trial court granted summary judgment in favor of the Auction, holding that as a matter of law, it could not be held liable for the underlying accident. Finding that there exist material issues of fact as to the Auction's liability, we reverse.

"On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence and construes that evidence in the light most favorable to the nonmoving party to determine whether material issues of fact exist." (Citation and punctuation omitted.) Osowski v. Smith, 262 Ga. App. 538, 586 S.E.2d 71 (2003).

So viewed, the evidence shows that the Auction is located on property that it owns at the end of Stansell Road, a short, unimproved road in Fulton County. The Auction is the only property serviced by Stansell Road, and that property lies approximately 25 feet beyond the point where the road crosses a set of railroad tracks. The road extends approximately 600 feet onto the Auction's property, where it then ends.

At the time of the underlying accident, Combs was employed by the Auction, working in the company's reconditioning facility. In 1996, the Auction had sought a rezoning of the property to allow it to build a new facility to house its reconditioning operations. In an ordinance passed approving the rezoning petition (the "1996 Zoning Ordinance"), the County Board of Commissioners included two conditions that are relevant to this action. The first condition provided that the Auction agreed to: "Pay the total cost of traffic signalization at the intersection of [Stansell Road]¹ and the Atlanta & West Point railroad crossing or as may be required by the Fulton County Traffic Engineer." The second condition required the Auction "[t]o contact the Director of Public Works, prior to the application for a Land Disturbance Permit [,] . . . to meet with the Fulton County Traffic Engineer" and to submit a "signed copy of the results of these meetings" when it applied for the Land Disturbance Permit ("LDP"). The Auction built the new reconditioning facility without fulfilling either of these conditions. Specifically, it does not appear from the record² that the Auction: (1) met with the Fulton County Traffic Engineer to discuss the installation of any traffic signal at the railroad crossing with the County; (2) attached the written results of any such meeting to its application for an LDP; or (3) offered the County money for the installation of a traffic signal at the railroad crossing.

In or around early February 1999, the Auction opened its new reconditioning facility even though it had not yet obtained a Certificate of Occupancy ("COO") for the building. On February 23, 1999, a friend of Combs drove her to work at the Auction and then left to take Combs' three children, who were in the car, to school. When crossing the railroad tracks that intersect with Stansell Road, the car was hit by a train. The accident left two of Combs' children, Shantavious and Quentavious, dead and a third child, Shanquilla, severely injured.

Following the accident, Fulton County refused to issue the Auction a COO for its new reconditioning facility because of its failure to comply with the 1996 Zoning Ordinance. The County also issued the Auction a citation based upon its failure to comply with these zoning requirements and to obtain a COO before opening the reconditioning facility. The Auction later paid the estimated cost of installing a protective signal device into escrow, asserting that the condition contained in the 1996 Zoning Ordinance requiring it to pay for the same was illegal.

Acting individually and in her capacity as the executrix of the estates of Shantavious and Quentavious Combs and as the guardian of Shanquilla Combs, Combs sued CSX Railroad, the State Department of Transportation, Fulton County, and the Auction. With respect to the Auction, Combs alleged that its negligence was a proximate cause of the underlying accident.

The Auction moved for summary judgment, arguing that, as a matter of law, its failure to comply with the 1996 Zoning Ordinance could not give rise to a claim against it. The trial court granted that motion, summarily concluding: (1) that the 1996 Zoning Ordinance violated state law and was therefore illegal; and (2) that consequently the Auction's failure to comply with that ordinance could not be considered negligence. The trial court's order does not otherwise address Combs' negligence claims against the Auction.

On appeal, Combs argues that the 1996 Zoning Ordinance is not illegal. We agree, finding that it represented a legitimate exercise of Fulton County's police power. We further find that the Auction's failure to comply with either of the traffic-related zoning conditions contained in the 1996 Zoning Ordinance, or to take any action to ameliorate the known hazard posed by the railroad crossing, subjected the Auction to liability.

1. In holding that the Auction could not be held liable for its failure to comply with the 1996 Zoning Ordinance, the trial court found that the condition requiring the Auction to pay for traffic signalization at the railroad crossing was illegal because it violated OCGA § 32-6-200, which provides:

(a) Whenever, in the judgment of . . . a county in respect to its county road system . . . such protection is reasonably necessary for the safety of the traveling public . . . [it] may order the protection of a grade crossing by the installation of protective devices. Prompt notice of such order shall be given to the railroad or railroads involved. . . . It shall be the duty of the railroad or railroads to proceed with acquisition and installation of protective devices within 60 days after receipt of an order to that effect and to complete such acquisition and installation within six months thereafter.

(b)(1) The expense of acquiring and installing a protective device shall be shared between: . . .

(B) The county . . . and the railroad involved, equally.

We fail to see how, under this statute, the zoning condition at issue can be considered illegal. The statute does not prevent a county from requiring, as a condition of zoning, that a landowner reimburse it for its share of the costs associated with the acquisition and installation of protective devices. Here, the zoning condition requiring the Auction to "[p]ay the total cost of traffic signalization" at the site of the accident can be interpreted as requiring the Auction to reimburse Fulton County for its share of the costs associated with installing a protective device.

Such an interpretation of the statute is entirely consistent with Georgia law, which permits local governments to require that a landowner pay the cost of public improvements as a condition of rezoning. See, e.g., Cross v. Hall County, 238 Ga. 709, 713-714(2), 235 S.E.2d 379 (1977). The only requirement is that the conditions be "imposed pursuant to the police power for the protection or benefit of neighbors to ameliorate the effects of the zoning change." Id. at 713(2), 235 S.E.2d 379. The conditions that the Auction meet with the Fulton County Traffic Engineer and fund the installation of traffic signalization at the railroad crossing meet this requirement, and those conditions therefore represent a lawful exercise of Fulton County's police power.

2. Given that the zoning conditions were legal, we next turn to the question of whether the Auction's failure to comply with those conditions gives rise to a claim of negligence per se. We find that it does.

Under Georgia law, the violation of a statute, ordinance, or mandatory regulation may constitute negligence per se. Hubbard v. Dept. of Transp., 256 Ga.App. 342, 350(3), 568 S.E.2d 559 (2002). The zoning conditions at issue were included in an ordinance passed by the Fulton County Commission when it granted the Auction's rezoning petition. The Auction's failure to comply with the conditions placed them in violation of Articles 4.2.1 and 23.1 of the Fulton County Zoning Ordinance. Because these ordinances imposed an affirmative duty upon the Auction, failure to comply with them can constitute negligence per se. See OCGA § 51-1-6 ("When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.").

In determining whether the Auction's violation of the zoning ordinance constitutes negligence per se as to Combs and her children, we must "examine the purpose of the [ordinance] and decide (1) whether [Combs and her children] fall[] within the class of persons it was intended to protect, and (2) whether the harm complained of was the harm it was intended to guard against." (Citations and punctuation omitted.) Rabinovitz v. Accent Rent-A-Car, 213 Ga.App. 786, 446 S.E.2d 244 (1994). Given that the Auction's property is the only one serviced by Stansell Road, we must conclude that the traffic-related zoning conditions were meant to protect those who were required to navigate the railroad crossing when traveling to and from the Auction. Combs and her children fall within this class. Additionally, the accident at...