Town of Register v. Fortner, No. A03A0636

• Citation: 262 Ga. App. 507,586 S.E.2d 54
• Decision Date: 10 July 2003
• Docket Number: No. A03A0637., No. A03A0636
• Parties: TOWN OF REGISTER v. FORTNER. Ogeechee Railway v. Fortner.
• Court: United States Court of Appeals (Georgia)

586 S.E.2d 54
262 Ga. App. 507

TOWN OF REGISTER
v.
FORTNER.
Ogeechee Railway
v.
Fortner

Nos. A03A0636, A03A0637.

Court of Appeals of Georgia.

July 10, 2003.

Reconsideration Denied July 25, 2003.

586 S.E.2d 56

Brennan, Harris & Rominger, Mason White, Savannah, James D. Kreyenbuhl, for appellant (case no. A03A0636)

Casey, Gilson & Leibel, Matthew D. Williams, Robert S. McEvoy, Atlanta, for appellant (case no. A03A0637).

Smith & Jenkins, Wilson R. Smith, Vidalia, Robert L. Jenkins, Mark F. Dehler, Decatur, Michael E. Perez, for appellee.

586 S.E.2d 55

SMITH, Chief Judge

Sheila Fortner brought this action against the Town of Register (the town) and Ogeechee Railway after Leon Fortner, her husband, was killed in a vehicular collision with a train engine operated by an Ogeechee employee. Fortner asserted several claims against the defendants. The trial court granted summary judgment to the defendants on some claims but denied summary judgment with respect to Fortner's claims that the town and Ogeechee failed to maintain the railroad right-of-way free of overgrown shrubs that allegedly obstructed Leon Fortner's view of the oncoming train.¹ The court also concluded that genuine issues of material fact existed as to whether Leon Fortner's failure to exercise ordinary care for his own safety was the sole proximate cause of the collision. We granted applications for interlocutory appeal filed by the town and Ogeechee. Because we agree with the appellants that they were entitled to summary judgment under OCGA § 32-6-51, we reverse.

1. In Case No. A03A0636, the town argues that it was entitled to summary judgment because Fortner failed to prove that any alleged vision-obstructing vegetation both constituted a traffic hazard and was unauthorized under OCGA § 32-6-51. Subsection (b)(3) of that statute provides that

[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which ... [o]bstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads.

This subsection applies to trees and other vegetation, in addition "to signs, structures, or constructed objects. The maintenance of such obstruction is negligence when it creates a traffic hazard and is unauthorized. However, if the statutory elements have not been met, then neither nuisance nor negligence arises under such Act. [Cit.]" Howard v. Gourmet Concepts Intl., 242 Ga.App. 521, 522(1)(a), 529 S.E.2d 406 (2000). See also United Refrigerated Svcs. v. Emmer, 218 Ga.App. 865, [262 Ga. App. 508] 866(1), 463 S.E.2d 535 (1995). For purposes of OCGA § 32-6-51, a party asserting that a structure on private property is unauthorized must show that it was built "or maintained in violation of some statute, code, or local ordinance." Smith v. Hiawassee Hardware Co., 167 Ga.App. 70, 72(1), 305 S.E.2d 805 (1983). See also Williams v.

586 S.E.2d 57

Scruggs Co., 213 Ga.App. 470, 471(1), 445 S.E.2d 287 (1994).

It is undisputed that the allegedly vision-obstructing vegetation was located on property owned by Ogeechee. Fortner admits as much in her appellate brief. Further, it is undisputed that Fortner failed to show that the vegetation was planted or maintained in violation of any "statute, code, or local ordinance." Smith, supra at 72, 305 S.E.2d 805. She therefore failed to show that the vegetation was "unauthorized" for purposes of imposing liability under OCGA § 32-6-51, and the town's motion for summary judgment should have been granted.

Citing OCGA § 32-6-1 and Smith, supra, the trial court found that Fortner had "submitted evidence that the vegetation extended onto the public right of way. Obstructions extending onto public rights of way are per se unauthorized. [Cits.]" The issues in this case are not controlled by OCGA § 32-6-1, however. That Code section provides in relevant part that "[i]t shall be unlawful for any person to obstruct, encroach upon, solicit the sale of any merchandise on, or injure materially any part of any public road." (Emphasis supplied.) OCGA § 32-6-1(a). But as discussed above, liability for vision-obstructing objects on private property is controlled by OCGA § 32-6-51:

Together OCGA §§ 32-6-1 and 32-6-51... clearly make the erection and maintenance of a structure in a public right-of-way per se unauthorized as well as unlawful, and the structure may be removed as a public nuisance. But § 32-6-1 does not apply to structures which are on private property adjacent to public roads. Structures on private property adjoining road rights-of-way only become unlawful under § 32-6-51 if they obstruct a clear view of roads in such a manner as to constitute a traffic hazard, and they are unauthorized. There is no per se lack of authorization as obtains in structures placed in public road rights-of-way, and the party asserting that a structure placed on private property is unauthorized has the burden of establishing the fact of the assertion by showing that the structure was erected or maintained in violation of some statute, code, or local ordinance.

(Citations omitted.) Smith, supra at 71-72, 305 S.E.2d 805.

Fortner argues that the town could not avail itself of OCGA § 32-6-51, because the vegetation was located on "the railroad right of [262 Ga. App. 509] way" and therefore was on Ogeechee's property. She contends that "OCGA § 32-6-51 does not apply where the obstructing vegetation is not on the property of the adjoining land owner" and therefore that she need not prove that the vegetation was unauthorized. In other words, she argues that OCGA § 32-6-51 is applicable only to landowners.

The language of OCGA § 32-6-51(b)(3) is much broader than Fortner suggests. The language is not restricted to owners of the land on which an unauthorized structure is located. Instead, that subsection makes it unlawful for "any person" to erect or...