Williams v. City of Social Circle

• Decision Date: 07 March 1997
• Docket Number: No. A96A2026,A96A2026
• Citation: 225 Ga.App. 746,484 S.E.2d 687
• Parties: , 97 FCDR 1287 WILLIAMS v. CITY OF SOCIAL CIRCLE.
• Court: Georgia Court of Appeals

Page 687

484 S.E.2d 687

225 Ga.App. 746, 97 FCDR 1287

WILLIAMS v. CITY OF SOCIAL CIRCLE.

No. A96A2026.

Court of Appeals of Georgia.

March 7, 1997.

Reconsideration Denied March 27, 1997 .

David R. Hughes, Tucker, E. Graydon Shuford, Decatur, for appellant.

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, Buford, for appellee.

RUFFIN, Judge.

Kathy Williams sued the City of Social Circle for injuries she sustained when she fell on a sidewalk located within the city limits. The city answered, denying it had any duty to maintain the sidewalk, and moved for summary judgment on the ground that it was relieved of liability under OCGA § 32-4-93(b). The trial court granted the city's motion, and Williams appeals. We affirm.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this 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.... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e)." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

In this case, Williams alleged that the city negligently maintained the sidewalk and that this caused her to trip and fall. In its answer, the city asserted that it did not own the property on which the sidewalk is located and denied it had any responsibility for maintaining the sidewalk. In support of its motion for summary judgment, the city presented affidavits from its mayor, city clerk, and utilities superintendent. The city clerk and the utilities superintendent stated in their affidavits that the sidewalk on which Williams fell lies within the state's right-of-way for State Highway 11. All three city officials further stated that the city did not maintain the subject sidewalk.

In response to the city's motion for summary judgment, Williams pointed to evidence purportedly showing that the city admitted liability for her injuries. Specifically, Williams points to the deposition testimony of Anna Stewart, a claims manager investigating Williams' claim on behalf of a business fronting the sidewalk where Williams fell. In her deposition, Stewart testified that when she contacted the city clerk about the claim, the clerk informed her that the accident happened on the city's property and that the city accepted responsibility for the accident. Williams contends that the city clerk's admission of liability creates a jury question concerning whether the city was obligated to maintain the sidewalk. We disagree.

To prevail on her negligence claim, Williams must show that the city had " '[a] duty, or obligation, recognized by law, requiring [it] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.' " Lau's Corp., supra at 492, 405 S.E.2d 474. Under OCGA § 32-4-93(a), a city is generally obligated to maintain the roads of its municipal street system. A city is similarly obligated to maintain those portions of the state highway system lying within its corporate limits if the city has "constructed or agreed to perform the necessary maintenance of such road[s]." OCGA § 32-4-93(b). This obligation also applies to public sidewalks. See Rischack v. City of Perry, 223 Ga.App. 856, 858(2), 479 S.E.2d 163 (1996); Snow v. Johnston, 197 Ga. 146, 155(4), 28 S.E.2d 270 (1943) (overruled on other grounds); East Lands, Inc. v. Floyd County, 244 Ga. 761, 765, 262 S.E.2d 51 (1979); Nathan v. Oakland Park Supermarket, 123 Ga.App. 591, 181 S.E.2d 868 (1971).

Keeping in mind that the city was not under a burden to affirmatively disprove Williams' case, but only to show that there is no evidence on at least one essential element, our review of the record supports the city's claim that there is no evidence it had any duty to maintain the sidewalk. The only evidence purporting to establish such a duty was the city clerk's alleged statements that the city was obligated to maintain the sidewalk and that it accepted responsibility for Williams' injuries. Such admissions, however, are hearsay, and Williams has not shown that they are admissible under any recognized exception to the rule against hearsay. See OCGA § 24-3-1.

Williams' attempts to establish that the admissions are admissible under OCGA §§ 24-3-33 and 10-6-64 are without merit. OCGA § 24-3-33 provides: "Admissions by an agent or attorney in fact, during the existence and in pursuance of his agency, shall be admissible against the principal." OCGA § 10-6-64 provides: "The agent shall be a competent witness either for or against his principal. His interest shall go to his credit. The declarations of the agent as to the business transacted by him shall not be admissible against his principal unless they were a part of the negotiation constituting the res gestae, or else the agent is dead." (Emphasis supplied). " 'The Code sections must be construed together, and the second effectively limits the scope of the first. (Cit.)' [Cit.]" Brooks v. Kroger Co., 194 Ga.App. 215, 216(2), 390 S.E.2d 280 (1990).

The city clerk's admissions in this case were not part of the res gestae. According to the record, Williams' accident occurred on December 7, 1992. The city clerk's declarations concerning ownership and liability, however, were not made until August 4, 1993. In Brooks, we held that declarations made three days after the accident would not be part of the res gestae. Id. "Obviously, a declaration made [approximately eight months] after the fact, as in the present case, would not be part of the res gestae." Id.

Similarly, Williams has not shown, as the dissent concludes, that the declarations were admissible because they were made by the city clerk with reference to the act in controversy and during the performance of her duties for the city. We note initially, that Baker v. H.E. Lowe Elec. Co., 47 Ga.App. 259, 170 S.E. 337 (1933) is physical precedent only. Furthermore, the rule stated by the dissent in its quote of headnote 2 of the opinion is incomplete. Although it is true that such admission by an agent is admissible against the principal, it must be shown that the agent spoke " 'with competent authority.' " (Emphasis in original.) Id. at 263, 170 S.E. 337. Where the declarant is an ordinary agent or servant, there is no presumption that such authority exists. Id. It is only where (1) the agent can be considered the alter ego of the principal (such as...