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City of East Point v. Young

Court of Appeals of Georgia, Third Division

February 15, 2017

CITY OF EAST POINT
v.
YOUNG, and vice versa.

          MCFADDEN, P. J., MCMILLIAN and SELF, JJ.

          McFadden, Presiding Judge.

         Lillian Young contends that, by repeatedly driving a garbage truck on a driveway to an apartment complex she had owned, the city of East Point damaged it. Both Young and the city moved for summary judgment. The trial court denied Young's motion and partially granted the city's. Young appealed, and the city cross appealed.

         We agree with the trial court that the city is entitled to summary judgment on Young's negligence, negligence per se, and trespass claims. And the trial court correctly denied Young's motion for summary judgment on her nuisance claim.

         We do not reach the city's cross appeal. The city argues that, because Young failed to produce evidence of damages, it is also entitled to summary judgement on her nuisance claims and her inverse condemnation claim. But the trial court did not address that argument.

         We therefore affirm the judgment of the trial court in both the main appeal and cross appeal.

         1. Background.

         "Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). This [c]ourt applies a de novo standard of review to an appeal from a grant of summary judgment and we view the evidence in the light most favorable to the nonmovant." Davis v. Overall, 301 Ga.App. 4 (686 S.E.2d 839) (2009) (citation omitted).

         So viewed, the record shows that Young owned a 20-unit rental property in the city of East Point from February 2007 until July 2012, when she lost it in foreclosure. She alleged that the city of East Point repeatedly drove a garbage truck on one of the property's three driveways, causing the condition of the driveway to deteriorate until it became unusable. She alleged that she notified the city of the problem, but city employees continued to drive the garbage truck on the driveway. She alleged that the condition of the driveway caused tenants to fail to renew their leases and potential tenants to decide not to lease apartments in her property. She alleged that the resulting decline in her rental income caused her to lose the property in foreclosure.

         She filed this action, asserting claims of negligence, negligence per se, trespass, nuisance, and inverse condemnation. The parties moved for summary judgment. The trial court granted the city summary judgment on Young's claims of negligence, negligence per se, and trespass, ruling that the city was entitled to sovereign immunity. It denied both parties' motions for summary judgment on the nuisance claim, finding that whether the city maintained a nuisance, whether its actions caused an injury, and whether Young gave notice were triable issues of fact. The trial court denied the city's motion for summary judgment on Young's inverse condemnation claim, finding that it, too, depended on triable issues of fact. Young appealed and the city cross-appealed.

         2. The grant of summary judgment to the city on Young's negligence, negligence per se, and trespass claims.

         Young argues that the trial court erred in granting summary judgment to the city on her claims for negligence, negligence per se, and trespass. She argues that, contrary to the trial court's ruling, the city operated its sanitation service as a proprietary venture, excepting it from sovereign immunity. The trial court did not err.

         Generally, a municipality is immune from liability for its performance of governmental functions, which are defined as "those of a purely public nature, intended for the benefit of the public at large, without pretense of private gain to the municipality." City of Atlanta v. Mitcham, 296 Ga. 576, 577-578 (1), (2) (769 S.E.2d 320) (2015). In comparison, a municipality may be liable for the negligent performance of its ministerial functions, which are defined as "those involving the exercise of some private franchise, or some franchise conferred upon [the municipality] by law which it may exercise for the private profit or convenience of the [municipality] or for the convenience of its citizens alone, in which the general public has no interest." Id. at 578 (1), (2) (footnote, citation, and punctuation omitted).

         A municipality's collection of garbage generally "is a governmental function, for the performance of which [it] is granted immunity from liability for the negligent acts of its officers and employees." City of Atlanta v. Chambers, 205 Ga.App. 834, 835 (2) (424 S.E.2d 19) (1992) (citation and ...


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