Mayor & C. of Savannah v. Palmerio

• Decision Date: 25 October 1978
• Docket Number: No. 33708,33708
• Citation: 249 S.E.2d 224,242 Ga. 419
• Parties: MAYOR & C. OF SAVANNAH v. PALMERIO et al.
• Court: Georgia Supreme Court

Page 224

249 S.E.2d 224

242 Ga. 419

MAYOR & C. OF SAVANNAH v. PALMERIO et al.

No. 33708.

Supreme Court of Georgia.

Argued Sept. 20, 1978.

Decided Oct. 25, 1978.

James B. Blackburn, Stanley E. Harris, Jr., Savannah, for appellant.

John R. Young, Atlanta, John Wright Jones, Anton F. Solms, Jr., Savannah, Arthur K. Bolton, Atty. Gen., Roland F. Matson, Asst. Atty. Gen., for appellees.

MARSHALL, Justice.

The plaintiffs, who are husband and wife, were injured in a head-on collision in the middle, or reversible, lane of a three-lane viaduct on U.S. Highway 80 on Bay Street in Savannah, Georgia. They brought suit in Chatham State Court against the Mayor & Aldermen of the City of Savannah, as well as the State Highway Department of Georgia (now the Department of Transportation). They argued that the failure to post proper signals to warn motorists of the reversible lane usage resulted in such a hazardous condition that it amounted to the maintenance of a nuisance. See Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834, 165 S.E.2d 141, 34 A.L.R.3d 1002 (1968).

The trial court granted the Department of Transportation's motion to dismiss on the ground of sovereign immunity. State Hwy. Dept. v. Barrett, 124 Ga.App. 703, 185 S.E.2d 624 (1971); Tounsel v. State Hwy. Dept., 180 Ga. 112, 178 S.E. 285 (1934). After discovery, the Mayor & Aldermen of the City of Savannah filed a motion for summary judgment which was denied, and on interlocutory appeal the Court of Appeals affirmed. See Mayor, etc., of Savannah v. Palmerio, 130 Ga.App. 238, 202 S.E.2d 677 (1973). ¹ The case proceeded to trial before a jury. The city filed a motion for a directed verdict, at the close of the plaintiffs' evidence and at the close of the case. The trial court reserved its ruling on the city's motion for directed verdict. A jury verdict was returned in favor of the city, and judgment was entered thereon. Pending a decision by the trial court on the plaintiffs' motion for new trial and within 30 days of entry of the judgment, the trial court granted the city's motion for directed verdict. The plaintiffs' motion for new trial was later denied.

On appeal, the Court of Appeals held that the order of the trial court directing a verdict in favor of the city after the jury verdict had been rendered was void. The Court of Appeals reversed the judgment and remanded the case for a new trial, due to errors in the trial court's instructions to the jury as to the circumstances under which a municipal corporation can incur liability for maintaining a nuisance. We granted certiorari. Held :

1. The Court of Appeals was incorrect in holding that the order of the trial court granting the city's motion for directed verdict was void.

The Court of Appeals predicated this ruling on the underlying assumption that the filing of a motion for judgment notwithstanding the verdict is a condition precedent to the post-verdict grant by the trial court of a motion for directed verdict.

CPA § 50(b) (Code Ann. § 81A-150(b); Ga.L.1966, pp. 609, 656, as amended) allows the trial court to defer ruling on a motion for directed verdict and submit the case to the jury subject to a later determination of the legal questions raised by the motion. CPA § 50(b) also requires a party who has moved for a directed verdict to file a motion for judgment notwithstanding the verdict within 30 days after entry of the judgment or, if a verdict was not returned, within 30 days after the jury has been discharged. However, CPA § 50(b) does not by its express terms require that a motion for judgment notwithstanding the verdict be filed in order to preserve the jurisdiction of the trial court to rule on a motion for directed verdict after the verdict itself has been returned.

The Court of Appeals saw fit to impose such a rule because, as stated by the Court of Appeals, "(f)or us to rule otherwise would be to permit a trial judge to eliminate an appellate review of possible errors in his instructions to the jury by the granting of a directed verdict after the jury has returned a verdict and judgment entered on the verdict where no proper motion for judgment notwithstanding the verdict was ever entered." We agree with the Court of Appeals that the trial court can so insulate its jury charges from appellate review by granting a post-verdict motion for directed verdict. However, we see nothing objectionable in this, so long as the appellate court determines that the trial court was correct in granting the motion for directed verdict. A motion for directed verdict is properly granted if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. CPA § 50(a). If the motion for directed verdict is properly granted, any question as to the correctness of the trial court's instructions to the jury is moot.

The holding of the Court of Appeals has the practical effect of prohibiting the trial judge from granting post-verdict the motion for directed verdict of the party in whose favor the verdict was rendered. This is so because it would be wholly anomalous for the winning party to file a motion for judgment notwithstanding verdict.

The purpose of CPA § 50(b), allowing the trial judge to submit the case to the jury and then granting a judgment notwithstanding the verdict, is to avoid the necessity for a retrial if the appellate court determines that the trial court erred in granting the judgment notwithstanding the verdict; under these circumstances, the appellate court then is in a position to simply reinstate the verdict. See 5A Moore's Federal Practice, P 50.05(3), pp. 50-61 to 50-62 (2d Ed.). The present case illustrates that these same considerations of judicial economy militate in favor of allowing the trial judge to grant post-verdict the motion for directed verdict of the winning party. For, if the appellate court in this case were to determine that the jury charges were erroneous, but that the trial court correctly granted the city's motion for directed verdict, the necessity for a new trial would be avoided.

2. We therefore reach the merits of the city's motion for directed verdict. The order of the trial court granting the motion for directed verdict found that the complaint alleged, in essence, a nuisance under the theory of Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834, 165 S.E.2d 141, supra. However, the evidence disclosed that the Bay Street viaduct was a state-aid road with the then State Highway Board having exclusive authority and jurisdiction over the road at the time of the accident. See former Code Ann. § 68-1610(a) and (b) (Ga.L.1953, Nov.Sess., pp. 556, 569) ²; former Code Ann. § 95-1738 (Ga.L.1961, pp. 469, 470, as amended) ³; former Code Ann § 95-604 (Ga.L.1953, Nov.Sess., pp. 367, 368). ⁴ Mayor, etc., of Woodbury v. State Hwy. Dept., 225 Ga. 723, 171 S.E.2d 272 (1969); Davis v. City of Barnesville, 80 Ga.App. 3, 54 S.E.2d 915 (1949); Perkerson v. Mayor, etc., of Greenville, 51 Ga.App. 240, 180 S.E. 22 (1935). Furthermore, under the law at the time of the occurrence of the accident in this case, the municipalities were expressly relieved of all liability resulting from the failure to maintain portions of the state-aid system of roads lying within the corporate limits of a municipality. See former Code Ann. § 95-1741 (Ga.L.1961, pp. 469, 471, as amended). ⁵ In addition, Code Ann. § 69-302 presently provides that, "Where municipal corporations are not required by statute to perform an act, they may not be held liable for exercising their discretion in failing to perform the same."

The State Highway Board had placed the lane markings on the road, but the City of Savannah had placed certain signs on the viaduct and the approach to the viaduct attempting to control reversible-lane usage. However, one of the signs was probably not visible to Mrs. Palmerio, who was driving, and she failed to see the other sign until it was too late to avoid the accident. Expert witnesses testified that there should have been larger signs and additional signs and that without proper signs the viaduct constituted a hazard to motorists. Traffic surveys did, however, indicate that the road had a low accident rate per miles traveled.

The trial court reasoned that the main thrust of the plaintiffs' complaint was that the city had created a nuisance by failing to act that is, by failing to install proper traffic-control signals rather than by having done an affirmative act creating a nuisance. Town of Ft. Oglethorpe v. Phillips, supra, was distinguished by the trial court on this basis. In distinguishing Town of Ft. Oglethorpe v. Phillips, supra, the trial court specifically noted that Mrs. Palmerio had not seen the signs placed by the city. Therefore, the plaintiffs were necessarily seeking to impose liability on the city for having failed to place traffic-control signals rather than for having placed them improperly.

In sum, the trial court ruled that the city was not liable to respond in damages to the plaintiffs for two interrelated reasons: (1) the city was not chargeable with maintaining a nuisance within the meaning of Town of Ft. Oglethorpe v. Phillips, supra; (2) the responsibility for placing traffic-control signals on the viaduct was in the state and not the city.

We think that the reasoning of the trial court is sound, and for reasons which are more fully developed in Division 3, infra, we hold that the trial court properly directed a verdict in favor of the city. We note that the Court of Appeals in a similar case, Hancock v. City of Dalton, 131 Ga.App. 178, 205 S.E.2d 470 (1974), reached essentially the same conclusions as the trial court in this case.

3. The Court of Appeals held that the trial court's charge to the jury, concerning the circumstances under which a municipal corporation can incur a liability for maintaining a nuisance, was error requiring the grant of a...