Shannon v. Fortenberry
| Decision Date | 16 February 2007 |
| Docket Number | No. A06A1707.,A06A1707. |
| Citation | 642 S.E.2d 229,283 Ga. App. 601 |
| Parties | SHANNON v. FORTENBERRY. |
| Court | Georgia Court of Appeals |
Stephanie Shannon sued Judy and Jewel Fortenberry for the wrongful death of her 18 year-old daughter, Keonna Smith, in a tragic car accident. The trial court granted summary judgment to the Fortenberrys and Shannon appeals. For the reasons set forth below, we affirm.
On appeal, we review the trial court's grant of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Hembree v. Spivey, 281 Ga.App. 693, 637 S.E.2d 94 (2006). So viewed, the record shows that between 9:00 and 10:00 p.m. on January 24, 2003, water pipes in the Fortenberrys' storeroom burst, causing water to run down their driveway into the four-lane road in front of their home, Flat Shoals Road. The water ran down the gutter along the curb on the same side of Flat Shoals Road as the defendants' home for approximately 50 yards. At that point, the water crossed to the lower side of Flat Shoals Road and into a drain.
Judy Fortenberry was home alone when she noticed that cars driving past her home "sounded like they was going through water." She immediately looked outside and "saw water coming from the back area of [her] home ... like a water hose . . . was turned on." She called 911 several minutes later. The fire department received the dispatch at 9:49 p.m. and arrived at the Fortenberrys' home five minutes later.
Judy Fortenberry met the firemen in the driveway and showed them the room from where the water originated. A fireman pulled the sheet rock off the side wall in the utility room to find the leak and determined that the water needed to be shut off at the street because the leak was below the cut-off valve. The firemen shut the water off at the street within five minutes after their arrival.
After shutting off the water, the fire captain instructed Judy Fortenberry to call a plumber to replace and repair her pipes. He did not instruct her to place salt or sand in the water on the road because it "wouldn't be her place to do nor would it be [his] place to tell her to do it." According to the captain, it would not be appropriate for a private person to direct traffic, provide warnings, or place salt or sand on a four-lane highway.
Fire department personnel left the Fortenberrys' home at 10:02 p.m., and the captain notified his dispatcher that a sand truck should come to that location if the temperature dropped below freezing because there was water in the roadway. The captain did not close Flat Shoals Road at that time because no ice had formed and, in his opinion, the temperature was above freezing.
At approximately 11:00 p.m., Keonna Smith was driving on Flat Shoals Road near the Fortenberrys' home when her car slid on ice into the westbound lane of traffic where it was struck by another car. She died within an hour of the accident.
A police officer arrived at the accident scene at 11:10 p.m. and saw a "large sheet of ice" covering all four lanes of Flat Shoals Road that, in his opinion, caused the accident. The same firefighter captain who had responded to the water leak call arrived at the accident scene at 11:14 p.m. At some point while he was working at the scene of the accident, a sand truck arrived.
Weather records for Hartsfield-Jackson Atlanta Airport on the date of the accident show that there was no precipitation that day or the preceding day. The airport temperature was 26 degrees at 9:53 p.m.
The plumber who repaired the Fortenberrys' pipes opined that "there was nothing that the Fortenberrys had done or failed to do that caused the bursting of their pipes." The pipes were located in an insulated wall and ceiling, and the Fortenberrys had closed foundation vents on their home before the onset of cold weather and dripped water from their faucets.
Stephanie Shannon filed suit against the Fortenberrys and alleged that they negligently caused her daughter's death by: (1) failing to properly maintain the pipe; (2) failing to cause the water to be turned off in a timely manner; (3) failing to warn passing cars of the danger posed by the water on Flat Shoals Road; and (4) failing to sand or salt Flat Shoals Road. The trial court granted summary judgment to the Fortenberrys based on its conclusion that the "plaintiff has not carried her burden of showing a genuine issue of material fact as to the elements of duty to the decedent, breach...
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