Queen v. City of Douglasville
| Decision Date | 20 March 1998 |
| Docket Number | A97A1936 |
| Parties | Queen v. City of Douglasville, (Ga.App. 1998) QUEEN et al. v. CITY OF DOUGLASVILLE. |
| Court | Georgia Court of Appeals |
This is an action for damages arising from an incident in which two young girls were struck by a train while attending an Independence Day Parade held by defendant City of Douglasville. The Independence Day Parade through downtown Douglasville has been held for more than 30 years. Since 1992 the parade has been planned and sponsored by defendant. The parade route which has not changed over the years uses the main thoroughfare through the center of the city which is known alternately as Highway 78, Bankhead Highway, and in the business district, as Broad Street.
Both parallel and adjacent to the parade route section of Highway 78 is the right of way and rail line of Norfolk Southern Railway. There is a grassy slope, from the railroad line down to the highway, which is a favored viewing spot for parade spectators.
On July 4, 1994, the two girls, Lisa Michelle Queen, age 10, and Rebecca Ann Queen, age 12, accompanied their parents and little brother to Douglasville. They parked at a business location on Highway 78, then walked across and along that highway on the grassy median area separating it from the railroad tracks until they reached their desired spot for observing the parade. As they had arrived early, they were able to walk near the highway curb and their chosen observation position was at the highway curb. The family did not walk on or cross the railroad track in reaching their position at the curb.
Since the area where the family wanted to sit was damp, the two girls, Lisa Queen and Rebecca Queen, were sent back to the family vehicle to get a poncho to sit on. The girls returned to the vehicle by reversing the route they had come with their family. But on their return to the parade route, after they crossed Highway 78 they proceeded on across 45-50 feet of the grassy median and onto the railroad tracks. The girls walked down the railroad tracks without looking behind themselves. Rebecca Queen eventually heard an oncoming train and jumped away from the tracks, but reached back for her baseball cap and her arm was struck by the train. Lisa Queen was struck by the train and killed.
Plaintiff Ronnie H. Queen, the girls' father, filed this action for the wrongful death of Lisa Queen and for the injuries received by both girls. Claims against Norfolk Southern Railway Company have been dismissed with prejudice. Plaintiffs' amended complaint seeks damages from defendant on theories of nuisance, negligence, premises liability, and mantrap. Defendant's motion for summary judgment was granted and plaintiff appeals. Held:
1. We reverse the grant of summary judgment in favor of defendant. Perhaps the most instructive authority cited by the parties is the factually similar case of Grier v. City of Atlanta, 200 Ga.App. 575, 408 S.E.2d 794 in which this Court reversed a grant of summary judgment on a nuisance claim based on the maintenance of a public park bisected by a rail line. The parade route in the case sub judice did not cross the rail line, but conduct of a public gathering of 10,000 or more persons along a parade route within 50 feet to 75 feet of a rail line on which trains were authorized to travel at up to 50 miles per hour may have involved even more dangerous conditions than in Grier v. City of Atlanta, supra, where the train was subject to a speed limit of 10 miles per hour. Similarly to Grier v. City of Atlanta, supra, the evidence in the case sub judice shows a large level of pedestrian traffic across the rail line. In the case sub judice, those who parked or lived on the opposite side of the tracks but desired to attend the parade often walked across the tracks with their families. Others watched the parade from the far side of the railroad tracks. There were a large number of children of all ages at the parade, many of whom are not closely supervised. Unsupervised children were sometimes on the railroad tracks.
"In City of Bowman v. Gunnells, 243 Ga. 809, 811(2), 256 S.E.2d 782 (1979), [the Supreme Court] established guidelines for determining whether a municipality will be liable for creating or maintaining a nuisance: the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition." Hibbs v. City of Riverdale, 267 Ga. 337, 338, 478 S.E.2d 121. While defendant in the case sub judice maintains that plaintiffs have failed to describe a dangerous defect which it has created and maintained, this is simply incorrect. Plaintiffs' nuisance claim against defendant arises from misfeasance in the holding of the parade in an area which would cause congestion along the rails where trains would be running at high speed, and is not predicated upon mere failures to act. There is evidence that the congestion and pedestrian traffic on and about the rail line had occurred in connection with the parade in prior years and that the defendant was well aware of these circumstances. And the dangerous conditions had been regularly repeated with each year's parade, albeit the 1994 parade was even more dangerous due to an increase in the speed limit applicable to passing trains.
The Grier v. City of Atlanta, supra, decision disposes of two additional arguments submitted by defendant. The fact that the injuries occurred on property owned by the railroad presents no bar to plaintiffs' nuisance claim. And the fact that there had been no prior occasion of injury on the railway tracks caused by the alleged nuisance does not support the grant of summary judgment on the nuisance issue. Id. at 576, 408 S.E.2d 794. Genuine issues of material fact remain for resolution of a jury on plaintiffs' nuisance claim.
2. In concluding that there was no evidence of defendant's negligence, the superior court relied upon the public duty doctrine set forth in City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861. However, the summary judgment being appealed was entered prior to the decision in Hamilton v. Cannon, 267 Ga. 655, 656(1), 482 S.E.2d 370 limiting the public duty doctrine to police officers and to police protection. The alleged negligent conduct of defendant goes beyond issues of police protection to the choices made by defendant in the planning of the parade. "Whether one causes a crowd or group of people to foregather for some purpose such as a parade is liable for an injury suffered by one spectator ... depends on the circumstances, and becomes a jury question where the minds of reasonable men differ as to whether the defendant was negligent in maintaining the premises, in controlling the crowd after notice of potential danger, or in failing to exercise ordinary care to anticipate and guard against injury the proximate cause of which is within its control." Armburst v. Cox Broadcasting Corporation, 117 Ga.App. 381, 382, 160 S.E.2d 609. There was evidence that the defendant recognized the hazard posed by conducting the parade in close proximity to the rail line but continued to use the traditional route in order to pass the downtown commercial district and did so without providing any protection from this hazard.
In connection with plaintiffs' negligence claim, we note that the defendant has liability insurance covering the parade. See OCGA § 36-33-1. Plaintiffs' negligence claim presents genuine issues of material fact for resolution by a jury.
3. The superior court also erred in granting summary judgment as to plaintiff's premises liability claim. While defendant did not own the railroad right-of-way, a jury could reasonably conclude that defendant occupied those premises each Independence Day by conducting the parade in such a manner as to encourage the use of that premises by the attending crowd. As occupier of the premises, defendant owed to the spectators, who were present at its invitation and thus invitees, ordinary care in keeping the premises safe. Macon Telegraph Publishing Company v. Graden, 79 Ga.App. 230(1), 53 S.E.2d 371. Any liability of defendant will be predicated on its superior knowledge of the hazard of the railroad tracks and defendant argues that ...
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