Rischack v. City of Perry

• Decision Date: 05 December 1996
• Docket Number: No. A96A1349,A96A1349
• Citation: 223 Ga.App. 856,479 S.E.2d 163
• Parties: , 96 FCDR 4410 RISCHACK et al. v. CITY OF PERRY et al.
• Court: Georgia Court of Appeals

Page 163

479 S.E.2d 163

223 Ga.App. 856, 96 FCDR 4410

RISCHACK et al. v. CITY OF PERRY et al.

No. A96A1349.

Court of Appeals of Georgia.

Dec. 5, 1996.

Reynolds & McArthur, Charles M. Cork III, Macon, for appellants.

Swift, Currie, McGhee & Hiers, Christopher D. Balch, Atlanta, Chambless, Higdon & Carson, Thomas F. Richardson, William H. Anderson III, Macon, for appellees.

RUFFIN, Judge.

While leaving the New Perry Hotel in Perry, Beverly Rischack tripped and broke her ankle in a grassy area owned by the City of Perry. Rischack sued both the city and the hotel for her injuries; her husband Gerald Rischack also sued for loss of consortium. The trial court granted summary judgment to both defendants, and the Rischacks appeal. We affirm.

"[S]ummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case." Lau's Corp. v. Haskins, 261 Ga. 491, 495(4), 405 S.E.2d 474 (1991).

Viewed in this light, the evidence shows that the Rischacks drove their car to the New Perry Hotel to attend a dinner. When they arrived, Gerald Rischack dropped Beverly Rischack off at the hotel driveway, then parked his car on a public street in a curbside parking space several car lengths from the driveway. A strip of grass several feet wide ran alongside the curb, and there was a public sidewalk leading to the driveway adjacent to the other side of this grassy median.

After dinner, Beverly Rischack walked on the sidewalk toward the passenger side of the car. It was night, and despite the presence of lights on the street and hotel gate, visibility in the area adjacent to the car was poor. As Rischack crossed the strip of grass to get from the sidewalk to the passenger door of the car, she did not see a depression in the ground near the curb. She stepped in the depression, lost her balance, and broke her ankle. In affidavits, the Rischacks' witnesses describe this depression as being a hole six to eight inches deep and ten to twelve inches wide. We note, however, that photographs identified by these same witnesses and submitted with their affidavits show only a gradual depression that appears to be shallower than six inches. Moreover, grass growing in the depression gave it a similar appearance to the surrounding ground covered by short grass.

Evidence showed that the City of Perry owned the street, sidewalk, and grass strip, and that the city had a crew of workers to maintain its rights of way. The hotel vice president and the city public works superintendent testified on deposition, however, that the hotel voluntarily performed all routine aesthetic work such as mowing the grass and sweeping the sidewalk in the area where Rischack fell. It was the practice of the hotel to call the city to take care of any serious problems in the area, and the city acknowledged that it had ultimate responsibility for and authority over the area. For example, when it became necessary to remove a large tree nine months before this incident, the city paid a private tree service to remove it, but both city and hotel employees participated in filling the resulting hole with dirt. It was not established whether Rischack fell in the depression resulting from this tree removal. There was no testimony from city or hotel employees who personally had performed landscaping or maintenance work in the area before Rischack fell. Nor was there evidence establishing that the city or the hotel knew the depression existed before she fell.

1. The Rischacks cite OCGA § 51-3-1 as the basis for their right to recover against the hotel. This statute provides: "Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe." OCGA § 51-3-1. The Rischacks contend the grassy strip was an "approach" to the hotel's land, and that the hotel therefore had a duty to maintain the grassy strip in a safe condition even though it was not the owner. We disagree.

In Motel Properties v. Miller, 263 Ga. 484(1), 436 S.E.2d 196 (1993), our Supreme Court addressed the issue of what physically constitutes an "approach." Under Motel Properties the term "approach" " 'refers to the sidewalk or other approach that is directly contiguous, adjacent to, and touching the premises under control of the owner or occupier.' [Cit.]" (Emphasis supplied.) Id. at 485-486, 436 S.E.2d 196. In this case, the sidewalk was the approach to the hotel property. The property where Rischack fell was not directly contiguous to the hotel property, and the fact that Rischack accessed the sidewalk by walking across the grass strip does not make the grass strip part of the approach. By this reasoning any property crossed to access an approach would also be deemed part of the approach.

This Court recognized the problems with such analysis in Elmore of Embry Hills, Inc. v. Porcher, 124 Ga.App. 418, 183 S.E.2d 923 (1971). In Porcher, the plaintiff fell on a shopping center sidewalk. Although the sidewalk was in front of a vacant area, the plaintiff argued it was an approach to an adjacent store owned by the defendant. In affirming the trial court's grant of summary judgment to the defendant, we recognized that according to the plaintiff's argument "her entire route from home to the store was a part of her 'approach,' but it could hardly be contended that the shopkeeper was responsible for this entire stretch of travel." Id. at 419, 183 S.E.2d 923. Accordingly, in Motel Properties the Court limited the term approach to the "last few steps taken by invitees...." Motel Properties, supra at 486, 436 S.E.2d 196.

It is clear from the photographs in the record of this case that the only approach to the hotel driveway was the city-owned sidewalk. Those same photographs show that Rischack must have walked at least 40 feet from the driveway to the point where she crossed and fell in the grass strip. By any account, she walked more than a few steps along the sidewalk from the driveway to the point where she attempted to cross the grass strip. Accordingly, because the undisputed evidence showed that the portion of the grass strip where Rischack fell was not contiguous and more than a few steps from the hotel driveway, such property did not meet this definition of "approach."

Neither did the property at issue fall under the Motel Properties alternative definition of "approach." This latter definition extends what "can be deemed an approach because the landowner extended the approach to his premises 'by some positive action on his part, such as constructing a sidewalk, ramp, or other direct approach.' ... [Cit.]" (Emphasis in original.) Id. In this case, mowing the grass strip cannot be considered a positive action to create a direct approach to the hotel property.

Finally, the dissent's contention concerning evidence of ownership of the grass strip and sidewalk is without merit. Contrary to the dissent's position, our finding that the city owns the grass strip is not an "erroneous assumption," but rather based on the Rischacks' admissions in their summary judgment brief and appellate brief.

OCGA § 24-3-30 provides that "[w]ithout offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other." "The purpose of OCGA § 24-3-30, as set forth in East Tenn., etc., R. Co. v. Kane, 92 Ga. 187, 18 S.E. 18 (1893), is judicial economy: 'saving the courts much time, vexation and trouble.' Id. at 192, 18 S.E. 18. With this purpose in view, the Kane court reasoned: 'Certainly a party should be relieved from proving that which his adversary distinctly alleges.' Id." Carver v. Saye, 198 Ga.App. 146, 147(1), 400 S.E.2d 683 (1990) (physical precedent only). For these same reasons we must conclude that, based on the Rischacks' admissions in judicio, the city owns the grass strip and sidewalk.

Because it is clear that the grass strip was not an approach, it is unnecessary to address whether Rischack exercised ordinary care for her own safety.

2. The Rischacks contend that the city is not entitled to the protection of OCGA § 32-4-93(a), which exempts a city from liability for "defects in the public roads of its municipal street system ... when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred." This statute also applies to public sidewalks and to unpaved rights of way. Brumbelow v. City of Rome, 215 Ga.App. 321, 450 S.E.2d 345 (1994); Crider v. City of Atlanta, 184 Ga.App. 389(1), 361 S.E.2d 520 (1987). The Rischacks claim they have presented sufficient evidence of the depression's age to support an inference of notice to the city of its existence. We disagree.

The city's public works superintendent testified that his road and right of way crew learns of most defective conditions from phone calls or by "observing ... when we're out." The record shows that a city crew was on the grassy strip approximately nine months before Rischack fell to fill the hole left by the removal of the large tree. Although the city public...