Roquemore v. City of Forsyth

• Decision Date: 14 July 2005
• Docket Number: No. A05A0169.,No. A05A0168.,A05A0168.,A05A0169.
• Citation: 274 Ga. App. 420,617 S.E.2d 644
• Court: Georgia Court of Appeals
• Parties: ROQUEMORE v. CITY OF FORSYTH et al. McClay et al. v. City of Forsyth et al.

274 Ga. App. 420

617 S.E.2d 644

ROQUEMORE v. CITY OF FORSYTH et al.

McClay et al. v. City of Forsyth et al.

No. A05A0168.

No. A05A0169.

Court of Appeals of Georgia.

July 14, 2005.

Sell & Melton, Mitchel P. House, Jr., Jeffrey B. Hanson, Macon; Clark & Bellamy, Stephen R. Sullivan, Macon, for appellants.

Sommers, Scrudder & Bass, Glenn S. Bass, Atlanta, for appellees.

ADAMS, Judge.

Dora B. Roquemore, Ann G. McClay and Virginia Griffin brought suit against the City of Forsyth and Adolph Parsons, after an automobile driven by Parsons struck Roquemore and Griffin, resulting in injuries. Roquemore, McClay and Griffin appeal the trial court's order granting summary judgment to the City of Forsyth on their claims. Because the trial court correctly concluded that no triable issue of fact exists, we affirm.

Summary judgment is appropriate when no genuine issue of material fact exists for consideration by a jury, entitling the movant to judgment as a matter of law. OCGA § 9-11-56(c). "A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. [Cit.]" (Punctuation omitted.) Alston v. Superior Court Clerks' Retirement Fund of Ga., 271 Ga.App. 143, 608 S.E.2d 734 (2004).

Viewed in that light, the record demonstrates that sometime after 7:00 p.m. on January 13, 1999, Ann McClay, her husband Greg McClay, her minor daughter, Virginia Griffin, and her mother Dora Roquemore, paused at a curb near an intersection in Forsyth before crossing the street to their parked car. While they were stopped, both Roquemore and McClay observed Parsons's car stopped at a red light up the street. The McClays then entered the roadway first, followed by Roquemore and Griffin. As the group crossed the street, McClay looked to her right where she saw the car's headlights rapidly approaching. This may have prompted McClay and her husband to walk a little faster, but she did not feel the need to run in order to avoid the car. The next moment, however, McClay heard an impact and the sound of car tires behind her as Parsons's automobile struck Roquemore and Griffin.

On the night of the accident, Parsons stated that he did not see Roquemore and Griffin "until the last minute" before his car hit them. He later testified by affidavit that while he was stopped at the red light, he observed four people walking on the side of the road. As Parsons approached, he saw two of the people cross in front of him, but did not see the other two enter the roadway and did not realize that they were attempting to cross the street before he struck them with his car. In his deposition, however, Parsons testified that he saw all four people crossing in front of him when he was about one-half block to one block away and that he could observe them the whole time as he approached.

Parsons also testified that the lighting conditions in the area at the time were poor. When he went back the next day, he observed that the streetlight was "hanging down" and was not working. Roquemore also recalled that the area was darker than normal because the streetlight was turned so that it pointed down the street in the direction from which Parsons was driving and did not point down toward the pavement as it should.¹ This recollection was supported by a third party witness, who testified that the area where Roquemore and Griffin were hit was very dark the night of the accident because the streetlight "was angled so that its illumination was directed away from the area in the street where the accident happened." And the police report noted that the conditions at the accident scene were "dark not light."

The streetlight in question was installed in 1997. The City of Forsyth's electrical department has the responsibility of maintaining and repairing the city's streetlights. The electrical department usually receives reports of malfunctioning lights from citizens or patrolling police officers. When an officer notices a problem with a light, the standard practice is for the officer to tie a ribbon around the pole and call in a work order to the electrical department. However, Officer Eddie Harris, who responded to the accident in this case and who patrolled the area, testified that he had never considered inspecting streetlights to be a part of his job duties as a patrolman. And he had never reported a malfunctioning light to the city. In any event, no evidence exists that any work order or any other notification was ever received by the city's electrical department with regard to the streetlight in this case.

The day after the accident, however, City of Forsyth employee Tommy Lee inspected the streetlight at the direction of a city administrator. He observed that the globe of the streetlight, which covers the mercury vapor bulb, was "tilting slightly downward" because one of the hinges was loose. Nevertheless, Lee determined that the light was functioning properly; the bulb was burning and "providing the appropriate amount of light." He stated that the loose hinge did not affect the light bulb or the output of light, but he tightened the hinge so that the globe was positioned normally.

The trial judge granted summary judgment in favor of the City of Forsyth as to the claims of Roquemore, McClay and Griffin, but did not state the basis for this holding. Roquemore, McClay and Griffin argue that the trial court erred in granting summary judgment because issues of fact exist as to whether the defective streetlight was a contributing factor to the accident and as to whether the city failed to implement a procedure for discovering and repairing defective streetlights.

"[T]he law is well settled in this State that a municipal corporation is bound to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by night as well as by day, and if it fail[s] to do so, it is liable for damages for injuries sustained in consequence of such failure." (Citation and punctuation omitted.) Mayor &c. of Savannah v. Johns, 87 Ga.App. 719, 723(1), 75 S.E.2d 342 (1953). But it also undisputed that the decision whether to provide lighting on a particular city street is a discretionary function of a municipality. "Such lighting is a discretionary act of the municipality, and for the exercise or failure to exercise such a power no right of action accrues." (Citation omitted.) Quinn v. Ga. Power Co., 51 Ga.App. 291, 293, 180 S.E. 246 (1935). And "[i]t would seem that the discretion to install a system of lighting would include a discretion to discontinue it." Williams v. Mayor &c. of Washington, 142 Ga. 281, 283(1), 82 S.E. 656 (1914).

In reconciling a city's duty to maintain safe streets with its discretion in providing lighting on those streets, the Supreme Court of Georgia has held that "the character...