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Mayor And Aldermen of City of Savannah v. Herrera

Court of Appeals of Georgia, First Division

October 27, 2017

MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH
v.
HERRERA et al.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          McMillian, Judge.

         Lisa Nicolle Muse suffered incapacitating injuries when the car she was driving was struck as she was attempting to make a left hand turn at the intersection of White Bluff Road and Lee Boulevard in Savannah, Georgia. Ann J. Herrera, as conservator for Muse, and Gloria Fay Muse, as the guardian of Muse, ("Plaintiffs") filed suit against, inter alios, the Mayor and Aldermen of the City of Savannah (the "City"), [1] contending that the City acted negligently in locating the painted stop bar at the intersection and acted negligently and created a nuisance by allowing the line of sight of motorists entering the intersection to be obscured by two large trees, one of which was located on the City's right of way.[2] The City moved for summary judgment, contending that the negligence claims were barred by sovereign immunity; the acts alleged did not rise to the level of nuisance; the City's actions or inactions were not the proximate cause of the accident; and the claims were barred by the doctrine of avoidable consequences.[3] The trial court granted the City's motion as to Plaintiffs' claim based on the allegedly negligent placement of the stop bar, but denied the City's motion to the extent Plaintiffs' negligence and nuisance claims were based on the obstruction in line of sight caused by the tree. The trial court included in its order a certificate of immediate review, and the City sought interlocutory review from this Court, which we granted.

         We first set out the circumstances surrounding the accident.[4] Lee Boulevard is a two lane public road that generally runs east to west, and White Bluff Road is a four lane road with two northbound and two southbound lanes divided by a median. Lee Boulevard and White Bluff Road intersect at several points, and the intersection where the accident occurred is on the westerly end where access from Lee Boulevard onto White Bluff Road is controlled by a stop sign at a three-way "T" intersection (the "Intersection"). Drivers on Lee Boulevard attempting to access the southbound lanes of White Bluff Road are required to stop at the stop sign, traverse the two northbound lanes of White Bluff Road, and then turn left.

         Two large oak trees, one of which is on the City's right of way, were situated to the left of the driver along the side of the roadway at the Intersection. According to several witnesses who had traveled through the Intersection, the line of sight of a driver looking left toward the northbound lanes was obstructed by the oak trees sitting at the edge of the roadway, although the degree of obstruction varied depending on the vantage point of the driver traversing the Intersection such that the obstruction might be total or near total at some points but only partial at other points. And, tests conducted at the scene by investigating officers using vehicles similar to those involved in the accident demonstrated there were two blind spots along the Intersection and that a car traveling from Lee Boulevard would have to "ease up" past the stop bar and intrude into the right northbound lane of White Bluff Road in order to have an unimpeded view. Further, evidence was also presented that drivers traveling northbound on White Bluff Road had difficulty seeing cars stopped at the Intersection because of the trees.

         At the time of the accident, Muse, who had approached the Intersection from Lee Boulevard, was attempting to cross over the two northbound lanes of White Bluff Road in order to turn left onto the southbound lanes. However, as she pulled into the northbound lanes, her 2003 Honda Accord Coupe was struck on the driver's side by the 2001 Chevrolet Silverado pick-up truck driven by Officer West, who was traveling northbound on White Bluff Road. The impact shoved the Accord onto the center median north of the Intersection, up onto the curb, and into a utility pole on the passenger side.[5]

         Muse received an incapacitating brain injury as a result of the accident and has never been able to provide an account of what happened. The accident was extensively investigated, however, and police interviewed numerous other witnesses, including West and his passenger, fellow officer Christopher Brian Boatright. West told officers that he did not see Muse in the Intersection until moments before the collision and that he attempted to stop, but that he could not avoid hitting her. Several witnesses to the accident told police investigators that West appeared to be speeding, and some witnesses said they observed him moving in and out of the right and left lanes in order to maneuver around traffic;[6] at least one witness opined to police that Muse may not have seen West due to his speed and lane changes. Information obtained from the air bag module indicated that at approximately one second before deployment, West was traveling at 59 miles per hour; the posted speed limit was 40 miles per hour. And police concluded from the tire marks and angle of the vehicles that West was moving from the right lane to the left at the time of the collision.

         Several witnesses, including Boatright in his initial statement to police, [7] said they observed Muse stop before entering the intersection, although witness accounts differed concerning the precise point where she stopped, and one witness said it appeared to her that Muse was looking for oncoming traffic, but she could not be certain due to the distance. Based on the witnesses' accounts, one investigating officer concluded in his report that Muse stopped at the point where the roads intersect, or just into White Bluff Road.

         Plaintiffs also presented the report and testimony from an accident reconstructionist, who, based on his reconstruction of the accident and the conditions at the Intersection, testified that in order to have a completely unobstructed view, a driver had to "nose" past the stop bar into the northbound lane of traffic. He also opined, based on his calculations of the pre-accident positions of the vehicles relative to the point of impact, West's vehicle was not visible to Muse as she began to cross White Bluff Road, and that by the time she could see his vehicle it was too late to avoid the accident, making a crash all but unavoidable. The expert also concluded that had the visual obstructions been removed, both Muse and West would have been able to see each other in time to avoid the accident.[8]

         1. Sovereign Immunity.

         We turn first to the threshold issue of sovereign immunity. City of Tybee Island v. Harrod, 337 Ga.App. 523, 524 (788 S.E.2d 122) (2016) (sovereign immunity is not in the nature of an affirmative defense, going to the merits of the cases, but instead raises the trial court's subject matter jurisdiction to try the case and should be decided at the outset); Albertson v. City of Jesup, 312 Ga.App. 246, 248 (1) (718 S.E.2d 4) (2011) ("sovereign immunity is a threshold issue that the trial court was required to address before reaching the merits of any other argument.").

         Municipalities are protected by sovereign immunity pursuant to Article IX, Section II, Paragraph IX[9] of the Georgia Constitution unless that immunity is waived by the General Assembly or by the terms of the Constitution itself. City of Atlanta v. Mitcham, 296 Ga. 576, 577 (1) (769 S.E.2d 320) (2015); CSX Transp., Inc. v. City of Garden City, 277 Ga. 248, 249 (1) (588 S.E.2d 688) (2003); City of Greenboro v. Rowland, 334 Ga.App. 148, 149 (1) (778 S.E.2d 409) (2015). That immunity is reiterated in OCGA § 36-33-1 (a), which provides "it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages. . . ." However, subsection (b) of that section carves out a narrow waiver: "[m]unicipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskillful performance of their ministerial duties, they shall be liable." Mitcham, 296 Ga. at 577 (1).

         For more than a century, "[t]his provision has . . . been interpreted to mean that municipal corporations are immune from liability for acts taken in performance of a governmental function but may be liable for the negligent performance of their ministerial duties." Mitcham, 296 Ga. at 577 (1). One such ministerial duty, which also has been recognized for more than a century, is the duty of a municipality to maintain city streets in a reasonably safe condition for travel.[10] However, a city's liability in this regard is specifically limited by statute as set out in OCGA § 32-4-93 (a):

A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.

         Thus, "[s]tated positively, "municipalities generally have a ministerial duty to keep their streets in repair, and they are liable for injuries resulting from defects after actual notice, or after the defect has existed for a sufficient length of time for notice to be inferred." (Citation and punctuation omitted.) Roquemore, 274 Ga.App. at 423.

         The question then turns on what constitutes a defect in the public roads under OCGA § 32-4-93 (a), and in particular, whether objects adjacent to the road that obstruct the view of travellers on the road are considered "defects in the public roads." As explained by this Court, "'defects in its streets' for which a municipal corporation may be liable under the provision of this code section (and its predecessor) have been held to include objects adjacent to, and suspended over, the municipality's streets and sidewalks, the presence of which renders the use of these thoroughfares more hazardous. (Cits.)' Richards v. Mayor &c. of Americus, 158 Ga.App. 693, 694 (282 S.E.2d 122) (1981)." Kicklighter v. Savannah Transit Auth., 167 Ga.App. 528, 530 (2) (307 S.E.2d 47) (1983). Thus, in Kicklighter, we determined that a jury must decide whether a power pole located six inches outside the curb line of the street was a defect within the meaning of the statute rendering the City liable for injuries received by the plaintiff after his arm, which was propped in an open bus window, became wedged between the bus and the pole. Id. at 528.

         Our Supreme Court has likewise explained well over a hundred years ago, that "[t]he municipality should not allow obstructions or excavations to adjoin the traveled way which will render its use unsafe and dangerous. Cities are liable for negligently permitting unguarded excavations near the line of the road or street, as well as for negligently allowing obstructions likely to cause injury to be placed upon or near the line[.]" (Citation and punctuation omitted.) City Council of Augusta v. Tharpe, 113 Ga. 152, 155-56 (38 SE 389) (1901) ("[w]e are not able to say that a wire, . . . stretched along the margin of a sidewalk, which is part of a public street, would not be a dangerous obstruction[.])"; Hammock v. City Council of Augusta, 83 Ga.App. 217, 218-19 (63 S.E.2d 290) (1951) (rejecting City's contention that defects include only defects in the surface of a street or sidewalk and not defects on the side or above it).

         Further, the City's liability is not limited to manmade objects or obstructions, but extends to "defects which are gradually brought about by the forces of nature" such as tree limbs or vegetation alongside the road. Barnesville v. Sappington, 58 Ga.App. 27, 28 (197 SE 342) (1938). See also Richards, 158 Ga.App. at 694 (involving a tree limb extending ...


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