United Refrigerated Services, Inc. v. Emmer, A95A1440
| Decision Date | 31 October 1995 |
| Docket Number | No. A95A1440,A95A1440 |
| Citation | 218 Ga.App. 865,463 S.E.2d 535 |
| Parties | UNITED REFRIGERATED SERVICES, INC. v. EMMER. |
| Court | Georgia Court of Appeals |
Warner S. Fox, Freeman & Hawkins, Atlanta, Kathryn A. Thurman, Sharon W. Ware & Associates, Tucker, for appellant.
J. Wayne Pierce, Law Offices of J. Wayne Pierce, P.A., James E. Gilson, Casey, Gilson & Williams, P.C., Atlanta, for appellee.
Mary Emmer was injured when the tractor-trailer truck in which she was a passenger collided with a CSX train at the intersection of the railroad track and LaGrange Boulevard in LaGrange, Georgia. United Refrigerated Services, Inc. ("United") owned and maintained the property adjacent to LaGrange Boulevard over which the train traveled prior to the collision. United planted a row of pine trees on the edge of its property which bordered LaGrange Boulevard. Emmer sued United, contending that because United failed to maintain the trees, they blocked the truck driver's view of the approaching train and thus constituted a public nuisance as well as the proximate cause of the collision. The trial court denied United's motion for summary judgment, and we granted its application for interlocutory appeal to determine whether the trial court erred in failing to apply OCGA § 32-6-51 to this case. For reasons which follow, we reverse.
1. United contends the trial court erred in denying its motion for summary judgment on the negligence claim because at the time of the accident Emmer was a licensee, and its duty to her was merely to refrain from causing her wilful or wanton injury. Emmer, on the other hand, argues that United owes her a general duty of care. But this case does not turn on the issue of a landowner's duty to a licensee who goes upon its property and is injured. In Williams v. Scruggs Co., 213 Ga.App. 470, 445 S.E.2d 287 (1994), we held that cases such as this involving a landowner's liability for vision-obstructing objects on property abutting a railroad crossing are governed by OCGA § 32-6-51. OCGA § 32-6-51(b)(3) states 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...." In Williams, we upheld summary judgment for a property owner because the plaintiff failed to show that the obstruction was unauthorized and "structures on private property adjoining road rights-of-way only become unlawful under OCGA § 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." (Citation and punctuation omitted, emphasis in original.) Id. at 471, 445 S.E.2d 287.
United also contends that the number and placement of trees on its property were required under a Fulton County Tree Preservation Ordinance and Landscaping Plan; therefore, it cannot be liable to Emmer on her negligence claim under OCGA § 32-6-51. Emmer argues that OCGA § 32-6-51 is inapplicable because a tree is not a structure. See Webster's Collegiate Dictionary (9th ed.) which defines structure as "something (as a building) that is constructed." But in Williams, supra, we found that vision-obstructing debris on the defendant's property fell within the ambit of the statute. That being the case, we are constrained to hold that the statute...
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...statutory elements have not been met, then neither nuisance nor negligence arises under such Act. See United Refrigerated Svcs. v. Emmer, 218 Ga.App. 865-866(1), 463 S.E.2d 535 (1995). To recover at trial, plaintiff must show that the objects on private property adjacent to the right-of-way......
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