Thompson v. City of Fitzgerald

• Decision Date: 07 March 2001
• Docket Number: No. A01A0115.,A01A0115.
• Citation: 248 Ga. App. 725,548 S.E.2d 368
• Parties: THOMPSON et al. v. CITY OF FITZGERALD et al.
• Court: Georgia Court of Appeals

548 S.E.2d 368

248 Ga. App. 725

THOMPSON et al. v. CITY OF FITZGERALD et al.

No. A01A0115.

Court of Appeals of Georgia.

March 7, 2001.

Reconsideration Denied March 22, 2001.

Salter, Shook & Craig, Mitchell M. Shook, Valdosta, Jason A. Craig, for appellants. Whelchel, Whelchel & Carlton, James C. Whelchel, Moultrie, Walters, Davis & Pujadas, J. Harvey Davis, Ocilla, for appellees.

JOHNSON, Presiding Judge.

Following a period of heavy rains, seven-year-old Shonda Thompson fell into the swollen waters of a creek which runs adjacent to her home and drowned. Rosie Thompson and Clark Thompson, as parents of Shonda and as administrators of her estate, and Thomas Everett, as temporary administrator of the estate of Clark Thompson, sued the City of Fitzgerald and the Fitzgerald Water Department. The City of Fitzgerald moved for summary judgment, which the trial court granted. The plaintiffs appeal the trial court's order. Because no genuine issue of material fact exists regarding the City of Fitzgerald's liability, we affirm the trial court's grant of summary judgment to the City.

On appeal of the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists.¹ Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.² A defendant meets this burden by

showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case ... All of the other disputes of fact are rendered immaterial.³

If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.⁴

In the present case, the evidence shows that the City of Fitzgerald did not own the creek or have legal control of the property surrounding the creek. While the City occasionally cleaned out or dredged the creek when it became clogged and caused flooding to adjacent property, this action was performed only at the request of those landowners. However, the City did not and does not otherwise maintain the creek. In addition, although some of the City's drainage system flows into the creek, since it is the low point in that area of town, there is no evidence that the City has done anything to cause the volume of water in the creek to exceed that which would naturally occur.

1. The appellants claim that the trial court erred in granting the City of Fitzgerald's motion for summary judgment on the issue of negligence. Since there is no evidence of causation in this case, the trial court did not err.

In this case, the direct cause of Shonda's death was drowning resulting from a large quantity of swiftly flowing water. The question to be answered is whether any act or omission on the part of the City of Fitzgerald reasonably contributed, wholly or partly, to the situation which caused Shonda's death. To answer this question we must look to the evidence and determine (1) the cause of the creek's increased volume and (2) who was in control of the creek and responsible for its maintenance.

As to the cause of the creek's increased volume, the appellants provided evidence that the City's drainage system ultimately finds its way into the creek. However, the appellants failed to provide any evidence showing that this design is flawed or that this design causes or contributes to the creek's increased water level beyond that which would occur naturally. There is also no evidence that the City's action in occasionally cleaning out the creek at the request of adjacent landowners in any way contributed to Shonda's death.

As to the question of control and maintenance, the appellants contend that the City had a duty to maintain the creek and failed to perform this duty. Although the City occasionally dredged or cleaned out the creek, there is no evidence that the City was responsible for maintaining the creek. The determination of who was responsible for the upkeep and maintenance of the creek, and thus who would have been negligent in failing to properly maintain it, rests on who owned the property that was the site of the creek and, most particularly, who had legal control over the premises.⁵ As this Court has previously stated,

Control as used by the cases equates with a right to possess or exercise dominion over another's property, not the mere act of providing upkeep thereon. Otherwise, if one neighbor periodically but voluntarily cuts part of another neighbor's lawn he might be found in control of that portion of the other's yard for a period of time other than when he was actually performing upkeep. Instead, such party is not liable for a defective or dangerous condition on the land unless he was actually negligent by creating, causing or contributing to the dangerous situation.⁶

In the present case, it is undisputed that the City neither owned nor had legal control of the creek. The appellants have failed to produce any evidence suggesting that the City had a right to possess or exercise dominion over the creek. Thus, there was no basis for the City's liability at any time other than when it was physically present on the property.⁷ The trial court did not err in granting the City of Fitzgerald's motion for summary judgment on this ground.

2. The appellants claim that the trial court erred in granting the City of Fitzgerald's motion for summary judgment on the issue of public nuisance. This contention fails because the creation or maintenance of a nuisance chargeable to the City cannot exist absent action by the City or a failure to act when under a legal duty to do so.

The Supreme Court has set out three guidelines to define a nuisance for which a city may be held liable.⁸ First, the defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. Second, the act must be of some duration, and the maintenance of the act or defect must be continuous or regularly repetitious. Third, the city must have failed to act within a reasonable time after knowledge of the defect or dangerous condition.

The defect or misfeasance alleged by the...