Glover v. Ga. Power Co.
| Decision Date | 26 September 2018 |
| Docket Number | A18A1005 |
| Citation | 347 Ga.App. 372,819 S.E.2d 660 |
| Parties | GLOVER v. GEORGIA POWER COMPANY |
| Court | Georgia Court of Appeals |
Jesse G. Bowles III, Cuthbert, Joseph Pryor Durham Jr., Donald W. Lee, Albany, for Appellant
Hugh Brown McNatt, Atlanta, George H. Carley, Decatur, for Appellee
This appeal stems from a tragic hit and run incident in which the driver of a tractor-trailor struck three pedestrians as they attempted to cross Georgia Highway 520 in the City of Dawson. The only surviving pedestrian, Adrianne Glover, sued Georgia Power, alleging that the company failed to maintain appropriate lighting in the area of the incident. The trial court granted summary judgment to Georgia Power, and Glover appeals.
Among other contentions, Glover argues that the trial court erred in ruling that Georgia Power had no duty to provide or maintain streetlights in the area of the incident, and in determining that the physical condition of the highway was not dangerous or abnormal at the time of the incident so as to engender such a duty. We conclude that the trial court correctly granted summary judgment to Georgia Power because the company did not owe or voluntarily assume any duty to Glover that would subject it to liability in this case. Accordingly, we affirm.
Summary judgment is appropriate when no genuine issue of material fact exists for consideration by a jury, entitling the movant to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
(Citation and punctuation omitted.) Roquemore v. City of Forsyth , 274 Ga. App. 420, 617 S.E.2d 644 (2005).1
So viewed, the evidence shows that Highway 520 is part of the state highway system and was designed by the Georgia Department of Transportation ("DOT"). A portion of this highway is in the City of Dawson ("the City"). Around 1989, the DOT widened this portion of the highway, and Georgia Power applied for an encroachment permit from the DOT to erect additional light poles along the highway. The DOT approved the request, and Georgia Power installed the additional lighting in accordance with the permit. Georgia Power has a contract with the City whereby the City pays the monthly bill for the electricity used, and the City’s police department monitors the streetlights. If a patrolling officer observes an outage to a streetlight, that outage is reported to the City, and then the City informs Georgia Power so that Georgia Power can address the problem.
On an evening in February 2013, Glover, Latasha Harvey, and Harvey’s four-year-old daughter left Glover’s residence on foot and began crossing from the west to the east side of Highway 520 to go to a convenience store. At that point in the highway, there are four traffic lanes and a turning lane in the center.
Although the west side contains streetlights, the east side does not.
As the three pedestrians stood in the center turning lane, waiting for traffic to clear, a tractor-trailor struck them. Harvey and her daughter were killed as a result, and Glover sustained extensive injuries.
The driver of the tractor-trailor testified that the area in which the incident occurred was dark and that he did not see any of the pedestrians. His urine sample, which was taken the following evening, tested positive for cocaine, but the forensic toxicologist could not determine whether he was impaired by cocaine at the time of the incident. The driver thereafter pleaded guilty to first-degree homicide by vehicle, hit and run, and serious injury by vehicle.
A Georgia State Patrol officer investigated the collision and found that a streetlight immediately south of where the pedestrians crossed the highway went "on and off at times." Prior to the incident, however, Georgia Power had not been informed of any malfunctioning streetlight or power outage at the scene. Further, when the officer inspected the roadway, he noted that its condition appeared normal, and that it contained no potholes or obstructions, nor was it undergoing any excavation work. The Georgia State Patrol Specialized Collision Reconstruction Team also investigated the incident. The lead officer in this team determined that the area was dark, but that the roadway did not appear to contribute to the incident.
Months later, this same lead officer performed another reconstruction of the incident, using a similar tractor-trailor and driving under similar conditions with regard to weather, speed, and direction. The lead officer thereafter testified that he did not believe that the driver had been able to see the pedestrians. The City requested that the DOT study the area, and the DOT concluded that the lighting "appear[ed] insufficient" during the nighttime.
Glover sued the City and Georgia Power to recover damages for her medical expenses and she alleged, inter alia, that both were negligent by failing to maintain appropriate lighting in the area of the incident.2 Georgia Power moved for summary judgment, arguing that its contractual responsibility was to the City, not to Glover, that its only obligation was to repair streetlights when it received notification of an outage, and that it did not proximately cause Glover’s injuries.
The trial court granted summary judgment to Georgia Power, ruling that the company had no public or private duty to provide or maintain streetlights in the area of the accident; that Glover did not have an action against Georgia Power where the privity of contract was between the City and Georgia Power; and that Georgia Power did not undertake any duty to Glover. The trial court further found that even if Georgia Power had breached some duty to Glover, the driver’s intervening criminal act rendered the causal connection between any alleged negligence by Georgia Power and Glover’s injuries too remote. Glover now appeals.
1. As her first enumeration of error, Glover argues that the trial court erred in concluding that Georgia Power owed no duty to provide or maintain streetlights in the area of the incident. We discern no error on the part of the trial court.
In order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, and damages resulting from the alleged breach of the duty. The threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care. Whether a duty exists upon which liability can be based is a question of law. The duty can arise either from a valid legislative enactment, that is, by statute, or be imposed by a common law principle recognized in the case law.
(Citations and punctuation omitted.)
Diamond v. Dept. of Transp. , 326 Ga. App. 189, 193-194 (2), 756 S.E.2d 277 (2014). "No matter how innocent the plaintiff may be, [s]he is not entitled to recover unless the defendant did something that it should not have done, or failed to do something that it should have done pursuant to the duty owed the plaintiff." (Citation and punctuation omitted.) City of Douglasville v. Queen , 270 Ga. 770, 771 (1), 514 S.E.2d 195 (1999).
Preliminarily, Glover is not claiming that Georgia Power owed her any statutory duty. Further, insofar as Glover is attempting to impose a duty on Georgia Power through expert testimony, she cannot do so; again, the question of duty is a legal one. Diamond , supra, 326 Ga. App. at 195, 756 S.E.2d 277 ().
We therefore consider whether the precedential case law establishes any duty owed by Georgia Power. In Tollison v. Georgia Power Co. , 53 Ga. App. 795, 187 S.E. 181 (1936), a case similar to the present dispute, a plaintiff sued Georgia Power after being injured in a vehicle collision allegedly caused by a malfunctioning streetlight. The plaintiff alleged that Georgia Power was grossly negligent because its lighting system was "defective" and "unsafe" at an "unusually dangerous" point in a city street. Id. at 796, 187 S.E. 181. We held, however, that even assuming that Georgia Power’s failure to maintain a light on this street was a proximate cause of the collision, Georgia Power was not liable to the plaintiff because there was "no privity of contract and no public or private duty owed to the plaintiff." Id. at 795, 187 S.E. 181.3 See also Dominic v. Eurocar Classics , 310 Ga. App. 825, 830 (2), 714 S.E.2d 388 (2011) () (citation and punctuation omitted); Martha Mills v. Moseley , 50 Ga. App. 536, 537 (1), 179 S.E. 159 (1935) (). In fact, this Court has never held that a utility company owes any duty to provide citizens with street lighting.4
In an attempt to establish a duty, Glover contends that Georgia Power, having undertaken to provide lighting in the area, is liable to her under Section 324A of the Restatement (Second) of Torts because the company failed to exercise reasonable care in designing or installing proper street lighting. We conclude, however, that none of the three subsections of Section 324A is applicable to this case.
Section 324A, entitled "Liability to Third Person for Negligent Performance of Undertaking,"5 states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to...
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...enactment, that is, by statute, or be imposed by a common law principle recognized in the case law. Glover v. Ga. Power Co. , 347 Ga. App. 372, 375 (1), 819 S.E.2d 660 (2018). Furthermore, "[w]here municipal corporations are not required by statute to perform an act, they may not be held li......