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City of Alpharetta v. Hamby

Court of Appeals of Georgia, Fourth Division

October 25, 2019

CITY OF ALPHARETTA
v.
HAMBY et al.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          MARKLE, JUDGE.

         Toby Hamby[1] filed suit against the City of Alpharetta ("the City"), alleging he suffered injuries after falling over a retaining wall located on the City's property, and that the City was negligent in failing to design and construct a barrier on top of the retaining wall, rendering it unsafe to the general public. Following a trial, the jury returned a verdict in Hamby's favor, awarding him $459, 575. The City now appeals, arguing that the trial court erred in (1) denying its motion for directed verdict on (a) Hamby's negligence claim under OCGA § 36-33-2, and (b) Hamby's negligence claim under OCGA § 32-4-93; and (2) that the trial court erred in improperly admitting certain evidence and arguments at trial. Because there was no evidence that the City had a duty, either by statute or ordinance, to construct a barrier, and because Hamby failed to state a claim under OCGA § 32-4-93 (a), we reverse.

         "On appeal from the denial of a motion for a directed verdict, . . . we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury's verdict. However, we review questions of law de novo." (Citation and punctuation omitted.) Brown v. Tucker, 337 Ga.App. 704, 720 (8) (788 S.E.2d 810) (2016); see also OCGA § 9-11-50 (a).

         So viewed, the evidence shows that, on the evening of February 6, 2014, Hamby was driving home when he experienced a sudden bout of colitis and soiled himself. He exited the highway at Mansell Road in Alpharetta looking for a place to clean up. He pulled into the parking lot of a restaurant off of Beaver Creek Road and noticed a patch of woods across the street. As he was entering the woods, Hamby fell over an 18-foot retaining wall, which had no barrier on top and otherwise appeared flush with the ground, and injured his right heel, his left leg, shoulder, and back. Hamby's injuries required surgery, and he incurred over $82, 000 in medical expenses. The City moved for summary judgment, which the trial court denied, and the case proceeded to trial.

         At the close of Hamby's case, the City moved for a directed verdict, [2] asserting that Hamby's negligence claims are barred because the City had no duty to maintain the retaining wall under OCGA § 32-4-93, and there was no evidence of any other code or statute requiring the City, which did not build the road, to erect a barrier above the retaining wall. The trial court denied the motion, and the jury returned a verdict in Hamby's favor.[3] This appeal followed.

         1. In two related arguments, the City claims that the trial court should have directed a verdict in its favor because it was not required to erect a barricade, and thus it cannot be held liable under OCGA § 36-33-2 for exercising its discretion not to do so. Further, the City argues that Hamby failed to state a claim under OCGA § 32-4-93 because the lack of a barrier is not a defect within the meaning of the statute, there was no legal duty requiring the City to erect one, and the location of the retaining wall is not covered by the statute. We agree and address each argument in turn.

         (a) The City first argues that Hamby has failed to establish that it had a duty to erect a barrier above the retaining wall, and thus it cannot be held liable under OCGA § 36-33-2 for exercising its discretion not to do so. We agree.

In order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, and damages resulting from the alleged breach of the duty. The threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care. Whether a duty exists upon which liability can be based is a question of law. The duty can arise either from a valid legislative enactment, that is, by statute, or be imposed by a common law principle recognized in the case law.

Glover v. Ga. Power Co., 347 Ga.App. 372, 375 (1) (819 S.E.2d 660) (2018). Furthermore, "[w]here municipal corporations are not required by statute to perform an act, they may not be held liable for exercising their discretion in failing to perform the act." OCGA § 36-33-2.

         The premise of Hamby's negligence claim[4] is that the City had a duty to design, construct, [5] and maintain the retaining wall to permit safe passage for the general public and, by failing to erect a barrier or otherwise warn of the condition, it caused the wall to become a hazard.[6] The parties dispute whether the act of erecting a barrier is discretionary or ministerial on the part of the City. However, Georgia courts have consistently held that acts such as the erection of stop signs and barriers are discretionary acts by a municipality, and therefore a city is immune from liability for failing to act in the absence of a law or ordinance requiring it to perform that act. See Riggins v. City of St. Marys, 264 Ga.App. 95, 101 (2) (589 S.E.2d 691) (2003) (holding that, even when a city was obligated by a SPLOST referendum to construct a stop light at an intersection the city recognized as dangerous, the city was immune from liability for its discretionary decisions regarding installation of the light.); see also Tamas v. Columbus, 244 Ga. 200, 202 (259 S.E.2d 457) (1979) (finding that the city was not liable for child's drowning in creek below the road where the city's maintenance of the road was deemed a discretionary nonfeasance); McKinley v. City of Cartersville, 232 Ga.App. 659, 660 (1) (503 S.E.2d 559) (1998) (holding that "the erection of stop signs and barriers is a discretionary act by a municipality, which fact renders it immune to liability for failure to act in the absence of a law or ordinance requiring the city to perform that act"); McLaughlin v. City of Roswell, 161 Ga.App. 759 (289 S.E.2d 18) (1982) (holding that "[w]here municipal corporations are not required by statute to perform an act, they may not be held liable for exercising their discretion in failing to perform the same."); Bowen v. Little, 139 Ga.App. 176 (228 S.E.2d 159) (1976) (physical precedent only) ("In the absence of a law or ordinance requiring the defendant City of Ocilla to erect a traffic light at an intersection . . ., the erection and maintenance of such a signal is discretionary, and it cannot be held liable for mere failure to perform such act."); Englander v. City of East Point, 135 Ga.App. 487 (218 S.E.2d 161) (1975) ("Deciding whether to erect or not to erect a traffic control sign . . . is an exercise of a governmental function by a municipality and it is not liable for any negligent performance of this function.").

         Here, Hamby has produced no statute or ordinance that required the City to construct such a barrier. Hamby's expert testified that industry standards generally require that a wall four feet tall or higher must have a guard of at least forty two inches high and must be able to withstand, at a minimum, two hundred pounds of pressure. She admitted, however, that nothing in the building codes at the time the retaining wall in question was built required a barrier. Likewise, the City's expert testified that neither of the applicable codes in effect at the time the wall was designed and constructed required a barrier. Absent an ordinance or statute requiring the City to erect a barrier above the retaining wall, it may not be held liable for exercising its discretion not to do so. OCGA § 36-33-2; see, e.g., McKinley, 232 Ga.App. at 660 (1). Accordingly, we conclude that the trial court erred in denying the City's motion for directed verdict on this ground.

         (b) The City next argues that Hamby also failed to state a claim under OCGA § 32-4-93 because the lack of a barrier is not a defect within the meaning of the statute, and the location of the retaining wall is not an area the City intended to be used by the public. We agree that Hamby failed to state a claim under OCGA § ...


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