Kicklighter v. Savannah Transit Authority, s. 65498

• Decision Date: 08 July 1983
• Docket Number: Nos. 65498,65499,s. 65498
• Citation: 167 Ga.App. 528,307 S.E.2d 47
• Parties: KICKLIGHTER et al. v. SAVANNAH TRANSIT AUTHORITY et al. SAVANNAH TRANSIT AUTHORITY et al. v. KICKLIGHTER.
• Court: Georgia Court of Appeals

Page 47

307 S.E.2d 47

167 Ga.App. 528

KICKLIGHTER et al. v. SAVANNAH TRANSIT AUTHORITY et al.

SAVANNAH TRANSIT AUTHORITY et al. v. KICKLIGHTER.

Nos. 65498, 65499.

Court of Appeals of Georgia.

July 8, 1983.

Rehearing Denied July 22, 1983.

Certiorari Denied Nov. 2, 1983.

R. Kran Riddle, Walter W. Ballew III, Savannah, for appellants (case no. 65498).

John T. Woodall, William W. Shearouse, Jr., Sam P. Inglesby, Jr., James B. Blackburn, Savannah, for appellees (case no. 65498).

Michael D. Usry, John T. Woodall, Savannah, for appellants (case no. 65499).

William W. Shearouse, Jr., Sam P. Inglesby, Jr., R. Kran Riddle, Savannah, for appellees (case no. 65499).

SOGNIER, Judge.

Robert Kicklighter and his parents, Remer M. and Lilla Mae Kicklighter, sued the Savannah Transit Authority, bus driver, Horace E. Ginn, Savannah Electric & Power Company (SEPCO), and the Mayor and Aldermen of the City of Savannah (the City) for personal injury and loss of services. Robert Kicklighter was injured when his arm, which was propped in an open bus window, was apparently wedged between the bus window frame and a power pole. The pole was installed by SEPCO in 1956 under franchise agreements with the City, and was located six inches outside the curb line of the street. The trial court granted motions for summary judgment filed by SEPCO and the City. The Kicklighters appeal. Savannah Transit Authority and Ginn cross-appeal the granting of motions to dismiss their cross-claims against SEPCO and the City.

1. Appellants contend that the trial court erred in granting SEPCO's motion for summary judgment because genuine issues of material fact exist as to whether SEPCO was negligent in failing to anticipate that persons using the street might be injured by the pole. The applicable legal standard is recited in Ga. Power Co. v. Zimmerman, 133 Ga.App. 786, 213 S.E.2d 12 (1975), which extends the holding in Southern Bell Tel. etc. Co. v. Martin, 229 Ga. 881, 194 S.E.2d 910 (1972) to include electric light and power companies: The owner of a utility pole is not liable for its alleged negligent placement in a public road right of way where such pole (1) is located with the approval of the county or municipal authorities and (2) does not obstruct or interfere with the ordinary use of the public highway. Zimmerman, supra at 787, 213 S.E.2d 12. While it appears that the evidence of municipal acquiescence in the location of the pole is undisputed (see Martin, supra at 882, 194 S.E.2d 910; Callaway v. Central Ga. Power Co., 43 Ga.App. 820, 821(3), 160 S.E. 703 (1931); South Ga. Power Co. v. Smith, 42 Ga.App 100, 101(2), 155 S.E. 80 (1930)), we believe appellants have raised a question of fact as to whether the location of the pole obstructs or interferes with the ordinary use of the street. The evidence showed that the wheels of the bus never left the paved portion of the road and stayed within the curb, and that the bus was going forward when the accident occurred. While there was no evidence that the chassis of the bus came into contact with the pole, nevertheless, appellant's arm, propped in the bus window, did.

Appellants offered expert opinion testimony in the affidavit of a professional traffic engineer who stated the following on the basis of his personal observations of the accident site: "The crown of the road is sufficiently higher than the gutter to cause exaggerated leaning of a large vehicle approaching the intersection in the right-hand lane, to the extent that the top of the vehicle could touch the power pole without the bottom of the vehicle touching the power pole, as evidenced by the fact that approximately one inch of wood of the power pole approximately seven to seven and a half feet above the ground level on the street side is scraped away;" A SEPCO employee confirmed in a deposition that the pole had been scraped by passing vehicles and that such scraping was not at all uncommon.

Appellee-SEPCO contends that the affidavit of appellants' expert need not have been considered by the trial court because it contained conclusory and irrelevant statements. Pretermitting the admissibility of all other statements in the affidavit, the statement quoted above was an inference of fact drawn from data observed by the expert and as a factual opinion rather than a legal conclusion, was admissible. See generally Security Life Ins. Co. v. Blitch, 155 Ga.App. 167, 170(6), 270 S.E.2d 349 (1980); Erwin v. Gold Kist, Inc., 146 Ga.App. 372, 373, 246 S.E.2d 404 (1978). Further, the statement was relevant because it raised the inference that the proximity of the pole to the street coupled with the slant of the street could cause large vehicles such as buses to come dangerously near or brush up against the pole. On motion for summary judgment, this bare inference of negligence (see Lenderman v. Haynie, 89 Ga.App. 513, 519(2), 80 S.E.2d 216 (1954)) must be construed most favorably to appellants as the nonmoving parties. Tipton v. Harden, 128 Ga.App. 517, 519(4), 197 S.E.2d 746 (1973).

In Lenderman, supra, this court held that facts similar to those in the instant case were sufficient to raise a jury question as to whether a pole obstructed or interfered with traffic. In that case, it was alleged that "[t]he pole was located on the sidewalk, against the curb, and within six inches of the traveled portion of the street, so close that vehicles such as school buses, trucks, and late-model automobiles, which have bodies extending beyond the wheels for more than six inches, could strike the pole while the wheels of such vehicles were in the traveled portion of the street." Id. at 519(2)-520, 80 S.E.2d 216.

Evidence in the instant case raised a question of fact as to whether SEPCO's pole obstructed or interfered with the ordinary use of the public highway and the trial court erred in granting SEPCO's motion for summary judgment.

2. Appellant contends that the trial court erred in granting summary judgment in favor of the City on the issue of negligence because questions of fact remain as to whether the City breached its duty to maintain its streets in a reasonably safe condition. Appellee-City asserts that it granted the franchise to SEPCO as an exercise of its legislative powers for which it cannot be held liable under OCGA § 36-33-1 (Code Ann. § 69-301). However, we need not decide this question, as the City's claim of governmental immunity is not the issue. The issue instead is the liability of the City for the alleged defect in a public road in its municipal street system. See OCGA § 32-4-93(a) (Code Ann. § 95A-505).

"Municipalities themselves primarily are responsible for the safe condition of the public roads of the municipal street system ... with liability limited to negligence arising from constructing and maintaining the streets where there is actual notice of or existence of negligence for such a length of time that notice thereof may be inferred, [OCGA § 32-4-93(a) (Code Ann. § 95A-505)]. The 'defects in its streets' for which a municipal corporation may be held liable under the provision of this code section (and its predecessor) have been held to include objects adjacent to, and suspended over, the municipality's streets and sidewalks, the presence of which renders the use of these thoroughfares more hazardous. [Cits.]" Richards v. Mayor etc. of Americus, 158 Ga.App. 693, 694, 282 S.E.2d 122 (1981). In Division 1 above, we determined that an issue of fact exists as to whether the pole obstructed or interfered with the ordinary use of the street. Accordingly, we find a...