Housing Authority of Atlanta v. Famble

• Decision Date: 29 March 1984
• Docket Number: 67079,Nos. 67078,s. 67078
• Citation: 317 S.E.2d 853,170 Ga.App. 509
• Parties: HOUSING AUTHORITY OF ATLANTA v. FAMBLE. VILLA MONTE HOMES, INC. et al. v. GARDNER et al.
• Court: Georgia Court of Appeals

Page 853

317 S.E.2d 853

170 Ga.App. 509

HOUSING AUTHORITY OF ATLANTA v. FAMBLE.

VILLA MONTE HOMES, INC. et al. v. GARDNER et al.

Nos. 67078, 67079.

Court of Appeals of Georgia.

March 29, 1984.

Certiorari Denied April 25, 1984.

J. Loren Fowler, James B. Gurley, Atlanta, for appellant in no. 67078.

W. Pitts Carr, David H. Pope, Sidney F. Wheeler, Lenwood A. Jackson, William A. Dinges, Atlanta, for appellee in No. 67078.

William A. Dinges, Atlanta, for appellants in No. 67079.

James B. Gurley, Sidney F. Wheeler, Lenwood A. Jackson, David H. Pope, W. Pitts Carr, Atlanta, for appellees in No. 67079.

QUILLIAN, Presiding Judge.

These appeals arise out of the tragic deaths of two sisters, Lisa Famble, age 7 and Yvonne Famble, age 8, who on August 29, 1979, drowned in an overflowing storm sewer located to the rear of the Villa Monte housing complex where they lived with their mother, the plaintiff Brenda Famble Gardner. Subsequently, their mother and Roy Gardner brought an action to recover for the wrongful death of the two children and for their conscious pain and suffering prior to their deaths (brought under a separate count by Brenda Gardner, as administratrix of the children's estate). Named as defendants were: Atlanta Housing Authority (Atlanta Housing), National Homes Construction Corporation (National Homes Construction), National Homes Corporation (National Homes), Morrison J. Simms & Associates, P.C., Villa Monte Homes, Inc., (Villa Monte Homes) and G & M Management Corporation (G & M). Also set out as defendants were John Doe, Individually, and The John Doe Corporation, but these two entities have no material relevance to this appeal.

A default judgment was entered against Morrison J. Simms and Associates, P.C., and G & M. G & M moved to set aside the default and its motion was subsequently granted on June 12, 1981. After extensive discovery, the cause came on for trial before a jury on June 14, 1982. During the course of the trial, defendant National Homes moved for and was granted a directed verdict in its favor. Motions by the other defendants were denied. The trial of the case resulted in a jury verdict in favor of the plaintiffs and against Atlanta Housing, Villa Monte Homes and G & M--$400,000 for wrongful death of the children and $100,000 for their pain and suffering. Defendant National Homes Construction was not included in the verdict.

After the denial of their motions for new trial and motions for judgment notwithstanding the verdict, the losing defendants have appealed to this court: Atlanta Housing in Appeal 67078; Villa Monte Homes and G & M in Appeal 67079. Held:

Each of the defendants against whom damages were found argues that, as a matter of law, the evidence was insufficient to authorize the verdict rendered.

Facts of the Incident

The following evidence was adduced concerning the events of August 29, 1979. First, the scene of the tragedy was a storm sewer which was located on or near the boundary between the land comprising the Villa Monte apartment project and a parcel of property owned by the Atlanta Housing. The storm sewer was described as consisting of a concrete drainage flume which received surface water from outlet pipes for the upstream drainage area and conveyed such water to a brick headwall which housed the entrance to a 48-inch inlet pipe leading underground into the city's main sewerage system. Thus, the design entailed water flowing from surrounding property via outlet pipes into the flume and thence into the 48-inch inlet pipe. The flume was crossed by a wooden foot bridge by which residents of the Villa Monte apartments could traverse on their way to a playground which was adjacent to the complex.

The mother of the deceased children testified that she had to go to work on the morning of the fatal day; that she left the children instructions to stay in the house but they could go outside "as long as they didn't get in a fight." She stated that she asked her next-door neighbor to "check" on the children. During the early afternoon a violent rainstorm occurred. As a result of the rainstorm, either because the quantity of water was so great or because of a blockage at the entrance or within the system, a deep pond was formed with a rapid current flowing into the pipe at the headwall. The older sister of the two decedents, Angela Gardner, (age 10 at that time) testified that she was charged with looking out for her two sisters and a younger brother. The two girls were at the playground when a dog chased Yvonne who ran into the water at the edge of the storm sewer and then continued into the deep part. Her sister, Lisa, tried to save her and both girls were unable to get out. In an effort to aid them, Angela pushed a door which was lying nearby into the water but was unable to effect a rescue. An occupant of a nearby apartment heard Angela's cries for help and attempted to save the two sisters by wading into the impounded water but the force was too strong and he was barely able to save himself. The witness recalled that there were two doors in the water at the time.

The two sisters were swept under and drowned. Later, after the waters subsided their bodies were recovered--one was found on the bank near the headwall, the other inside the inlet pipe.

Principles of Law

The essential elements of negligence are set out in Lee St. Auto Sales v. Warren, 102 Ga.App. 345(1), 116 S.E.2d 243: "(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty." Accord, Bradley Center v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693. Stated in a more informal way we find language in Judge Smith's dissent in McAuley v. Wills, 251 Ga. 3, 9, 303 S.E.2d 258 wherein he quotes Professor Leon Green who analyzed a negligence case by reference to four steps, to wit: " '(1) Did defendant's conduct contribute to the victim's injury (the causal relation issue)? (2) Was the victim protected under the law against the defendant's conduct with respect to the injury inflicted on him (the duty issue)? (3) Did defendant violate his duty under the law with respect to the victim's injury (the negligence issue)? (4) What is the evaluation in money of the losses suffered by the victim as a result of his injury (the damage issue)?' "

Again referring to Professor Green, 60 Mich.L.Rev. 543, 548-9 the following language is pertinent: "Conduct is a factual concept; the victim's hurt is a factual concept; causal relation is a factual concept."

The first question that naturally arises is: Was a defendant guilty of a negligent act and was it the actual cause of injury to the plaintiff (or in this case the plaintiffs' deceased children). "Negligence ... has been defined as conduct which falls below a standard established by the law for the protection of others against unreasonable risk of harm." Prosser, Law of Torts (4th Ed.) p. 146 § 31. In a case of this sort the conduct of the defendants must be identified and then a determination must be made as to whether such conduct did involve unreasonable risk to others. Of course, in such cases except in plain and palpable circumstances this determination is for the jury.

Unless a particular act has been declared by statute to be negligent, whether an act constitutes negligence is for the jury to decide. Eidson v. Mathews, 120 Ga.App. 711, 712(1), 172 S.E.2d 144; Bussey v. Dawson, 224 Ga. 191, 193, 160 S.E.2d 834. As stated in Garrett v. Royal Bros. Co., 225 Ga. 533, 535, 170 S.E.2d 294: " 'Questions of negligence are ordinarily peculiarly within the jury's province unless the evidence is so plain, palpable and undisputable that a court can conclude that the facts show negligence as a matter of law' ..."

Concurrent with such problem is the issue as to whether the alleged negligent act resulted in the injury complained of. For, there must be a causal connection between the act or omission relied upon as being negligent and the injury inflicted. The test normally applied is the "sine qua non" or "but for" rule which may be described by the postulate--but for the defendant's act or omission the consequence in question would not have occurred.

"[W]hen an injury can be traced directly to a wrongful act, and but for such wrongful act it could not reasonably be supposed that the injury would have resulted, this essentially antecedent act may be said to be the 'proximate cause' of the injury." Gregory v. Ross, 214 Ga. 306, 311, 104 S.E.2d 452. In Southern R. Co. v. Daughdrill, 11 Ga.App. 603, 609, 75 S.E. 925 this court held: "when an injury can be traced directly to the tortious act (though there be several paths in the track which lead back to this act), and but for this tortious act it could not reasonably be supposed that the injury would have resulted, this essentially antecedent act may be said to be the proximate cause of the injury." Stated another way: "No matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable." McKinney v. Burke, 108 Ga.App. 501(2), 133 S.E.2d 383. Accord, Western & Atlantic R. v. Frazier, 66 Ga.App. 275(2), 18 S.E.2d 45.

In this case the direct cause of the children's death was drowning resulting from the ponding of a large quantity of swiftly flowing water. Did an act or omission on the part of one or all of the defendants reasonably contribute, wholly or partly, to the situation in which the children died? The ponding of the water could have resulted from an affirmative act by which such condition was created, such as--constructing and maintaining an inadequate or deficient sewer system or by actually placing trash and debris in the pipe so that it...