FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
February 21, 2020
In the Court of Appeals of Georgia A19A2012. CITY OF ATLANTA v. DALE.
MCFADDEN, Chief Judge.
This is an appeal from a judgment on a jury verdict in favor of plaintiff Pamela
Dale in her personal injury action against the City of Atlanta. Dale was badly injured
after driving into an open manhole on a section of Peachtree Road located in the city.
She sued the city, arguing that the manhole was a public nuisance because it sat
several inches below the surface of the street, which heightened the risk that its cover
would become dislodged. But she did not present evidence that the manhole was in
that condition on the day of the incident or that the city had notice of that condition
before the incident. So Dale did not establish all of the elements required to hold the
city liable for a public nuisance and the trial court erred in denying the city’s motion
for directed verdict. We therefore reverse. 1. Facts.
“A motion for directed verdict shall be granted only ‘(i)f there is no conflict in
the evidence as to any material issue and the evidence introduced, with all reasonable
deductions therefrom, shall demand a particular verdict.’ OCGA § 9-11-50 (a).”
Norfolk Southern Corp. v. Smith, 262 Ga. 80, 83-84 (2) (414 SE2d 485) (1992). On
appellate review from a denial of a motion for directed verdict, we consider whether
“there is any evidence to support the jury’s verdict, and in conducting this analysis
we must construe the evidence in the light most favorable to the party who prevailed
in the court below.” Lee v. Swain, 291 Ga. 799, 800 (1) (733 SE2d 726) (2012).
So viewed, the trial evidence showed that on August 13, 2016, Dale was
seriously injured when she hit an uncovered manhole while driving on Peachtree
Road. Photographs taken more than a year after the collision depicted the manhole
in a deteriorated condition: its opening was several inches lower than street level and
cracks in the surrounding pavement indicated structural problems. Dale’s expert
witness opined that this condition created an increased risk that the manhole cover
would become dislodged.
The city does not have a practice of inspecting manholes absent a reported
problem with them. A witness who testified on behalf of the city pursuant to OCGA
2 § 9-11-30 (b) (6) stated that, according to a “Manhole Condition Assessment” report,
the manhole in this case had last been inspected in 2009.1 That report did not address
the manhole’s position in relation to the level of the street. Dale’s expert, however,
opined that the “Manhole Condition Assessment” report did not concern the manhole
in question. The city had no other records pertaining to the condition of the manhole
and was unaware of any previous accidents related to the manhole.
2. The evidence did not establish all of the elements of Dale’s nuisance claim
against the city.
A municipality “may be held liable for damages it causes to a third party from
the operation or maintenance of a nuisance, irrespective of whether it is exercising
a governmental or municipal function[.]” City of Bowman v. Gunnells, 243 Ga. 809,
810 (1) (256 SE2d 782) (1979) (citation omitted). An action against a municipality
for liability based on a nuisance requires the following showings:
(1) The defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. (A single isolated act of negligence is not sufficient to show such a negligent trespass as would
1 The “Manhole Condition Assessment” report is an exhibit to the deposition of the 30 (b) (6) witness. During trial, that deposition was read into evidence and the trial court made the deposition transcript and exhibits a part of the record, although the record does not reflect that the report itself was a trial exhibit.
3 constitute a nuisance.) (2) The act must be of some duration . . . and the maintenance of the act or defect must be continuous or regularly repetitious. (3) Failure of the municipality to act within a reasonable time after knowledge of the defect or dangerous condition.
Id. at 811 (2) (citations and punctuation omitted).Whether these elements are met “is
generally a fact question for a jury. However, some factual settings turn the issue into
one of law.” City of Atlanta v. MARTA, 262 Ga. 743, 745 (425 SE2d 862) (1993)
(citation omitted).
In this case, there is no fact question regarding these elements because there
is no evidence that the defect asserted by Dale — the deteriorated condition of the
manhole depicted in the photographs — existed on or before the day of the incident.
The photographs were taken more than a year later and, by themselves, do not create
a question of fact as to how long the manhole had existed in that condition. See City
of St. Mary’s v. Reed, 346 Ga. App. 508, 510 (816 SE2d 471) (2018) (photographs
of crack in sidewalk that were taken at some point after plaintiff’s trip and fall do not
support conclusion about age of alleged defect in roadway); City of Macon v. Brown,
343 Ga. App. 262, 265 (807 SE2d 34) (2017) (same, regarding photographs of broken
pavement surrounding manhole that were taken two weeks after accident allegedly
caused by manhole). They “do not establish how long the [condition] took to develop
4 and worsen, and [there is no] additional evidence to contextualize or lend support to
[Dale’s] arguments regarding the [condition of the manhole one year earlier].” City
of Macon, supra. Dale’s expert witness did not discuss whether the condition of the
manhole shown in the photographs also existed on the day of the incident; he merely
gave an opinion based on those photographs, conceding that he did not know when
they were taken. Dale could not testify to the manhole’s condition at the time of the
incident because she did not see it before hitting it. And no other witness testified that
the photographs of the manhole are consistent with how the area looked at the time
of the incident. Compare Godinho v. City of Tybee Island, 231 Ga. App. 377, 379 (2)
(499 SE2d 389) (1998) (witnesses testified about how scene depicted in photographs
looked on day of incident), reversed on other grounds by City of Tybee Island v.
Godinho, 270 Ga. 567 (511 SE2d 517) (1999).
Dale argues that there is evidence that the condition depicted in the
photographs dated back to 2009, when the manhole was last inspected, because the
city’s 30 (b) (6) representative testified that inspections only occurred in response to
a reported problem. But there is no evidence that any problem that existed in 2009
concerned the same condition seen in the photographs. The only evidence arguably
pertaining to the condition of the manhole in 2009 is the “Manhole Condition
5 Assessment” that, as discussed above, Dale’s expert witness testified neither
concerned the manhole in question nor addressed the alleged defect.
Dale argues that under the statute governing spoliation of evidence, OCGA §
24-14-22, the jury could presume that the 2009 inspection arose from a complaint
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FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
February 21, 2020
In the Court of Appeals of Georgia A19A2012. CITY OF ATLANTA v. DALE.
MCFADDEN, Chief Judge.
This is an appeal from a judgment on a jury verdict in favor of plaintiff Pamela
Dale in her personal injury action against the City of Atlanta. Dale was badly injured
after driving into an open manhole on a section of Peachtree Road located in the city.
She sued the city, arguing that the manhole was a public nuisance because it sat
several inches below the surface of the street, which heightened the risk that its cover
would become dislodged. But she did not present evidence that the manhole was in
that condition on the day of the incident or that the city had notice of that condition
before the incident. So Dale did not establish all of the elements required to hold the
city liable for a public nuisance and the trial court erred in denying the city’s motion
for directed verdict. We therefore reverse. 1. Facts.
“A motion for directed verdict shall be granted only ‘(i)f there is no conflict in
the evidence as to any material issue and the evidence introduced, with all reasonable
deductions therefrom, shall demand a particular verdict.’ OCGA § 9-11-50 (a).”
Norfolk Southern Corp. v. Smith, 262 Ga. 80, 83-84 (2) (414 SE2d 485) (1992). On
appellate review from a denial of a motion for directed verdict, we consider whether
“there is any evidence to support the jury’s verdict, and in conducting this analysis
we must construe the evidence in the light most favorable to the party who prevailed
in the court below.” Lee v. Swain, 291 Ga. 799, 800 (1) (733 SE2d 726) (2012).
So viewed, the trial evidence showed that on August 13, 2016, Dale was
seriously injured when she hit an uncovered manhole while driving on Peachtree
Road. Photographs taken more than a year after the collision depicted the manhole
in a deteriorated condition: its opening was several inches lower than street level and
cracks in the surrounding pavement indicated structural problems. Dale’s expert
witness opined that this condition created an increased risk that the manhole cover
would become dislodged.
The city does not have a practice of inspecting manholes absent a reported
problem with them. A witness who testified on behalf of the city pursuant to OCGA
2 § 9-11-30 (b) (6) stated that, according to a “Manhole Condition Assessment” report,
the manhole in this case had last been inspected in 2009.1 That report did not address
the manhole’s position in relation to the level of the street. Dale’s expert, however,
opined that the “Manhole Condition Assessment” report did not concern the manhole
in question. The city had no other records pertaining to the condition of the manhole
and was unaware of any previous accidents related to the manhole.
2. The evidence did not establish all of the elements of Dale’s nuisance claim
against the city.
A municipality “may be held liable for damages it causes to a third party from
the operation or maintenance of a nuisance, irrespective of whether it is exercising
a governmental or municipal function[.]” City of Bowman v. Gunnells, 243 Ga. 809,
810 (1) (256 SE2d 782) (1979) (citation omitted). An action against a municipality
for liability based on a nuisance requires the following showings:
(1) The defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. (A single isolated act of negligence is not sufficient to show such a negligent trespass as would
1 The “Manhole Condition Assessment” report is an exhibit to the deposition of the 30 (b) (6) witness. During trial, that deposition was read into evidence and the trial court made the deposition transcript and exhibits a part of the record, although the record does not reflect that the report itself was a trial exhibit.
3 constitute a nuisance.) (2) The act must be of some duration . . . and the maintenance of the act or defect must be continuous or regularly repetitious. (3) Failure of the municipality to act within a reasonable time after knowledge of the defect or dangerous condition.
Id. at 811 (2) (citations and punctuation omitted).Whether these elements are met “is
generally a fact question for a jury. However, some factual settings turn the issue into
one of law.” City of Atlanta v. MARTA, 262 Ga. 743, 745 (425 SE2d 862) (1993)
(citation omitted).
In this case, there is no fact question regarding these elements because there
is no evidence that the defect asserted by Dale — the deteriorated condition of the
manhole depicted in the photographs — existed on or before the day of the incident.
The photographs were taken more than a year later and, by themselves, do not create
a question of fact as to how long the manhole had existed in that condition. See City
of St. Mary’s v. Reed, 346 Ga. App. 508, 510 (816 SE2d 471) (2018) (photographs
of crack in sidewalk that were taken at some point after plaintiff’s trip and fall do not
support conclusion about age of alleged defect in roadway); City of Macon v. Brown,
343 Ga. App. 262, 265 (807 SE2d 34) (2017) (same, regarding photographs of broken
pavement surrounding manhole that were taken two weeks after accident allegedly
caused by manhole). They “do not establish how long the [condition] took to develop
4 and worsen, and [there is no] additional evidence to contextualize or lend support to
[Dale’s] arguments regarding the [condition of the manhole one year earlier].” City
of Macon, supra. Dale’s expert witness did not discuss whether the condition of the
manhole shown in the photographs also existed on the day of the incident; he merely
gave an opinion based on those photographs, conceding that he did not know when
they were taken. Dale could not testify to the manhole’s condition at the time of the
incident because she did not see it before hitting it. And no other witness testified that
the photographs of the manhole are consistent with how the area looked at the time
of the incident. Compare Godinho v. City of Tybee Island, 231 Ga. App. 377, 379 (2)
(499 SE2d 389) (1998) (witnesses testified about how scene depicted in photographs
looked on day of incident), reversed on other grounds by City of Tybee Island v.
Godinho, 270 Ga. 567 (511 SE2d 517) (1999).
Dale argues that there is evidence that the condition depicted in the
photographs dated back to 2009, when the manhole was last inspected, because the
city’s 30 (b) (6) representative testified that inspections only occurred in response to
a reported problem. But there is no evidence that any problem that existed in 2009
concerned the same condition seen in the photographs. The only evidence arguably
pertaining to the condition of the manhole in 2009 is the “Manhole Condition
5 Assessment” that, as discussed above, Dale’s expert witness testified neither
concerned the manhole in question nor addressed the alleged defect.
Dale argues that under the statute governing spoliation of evidence, OCGA §
24-14-22, the jury could presume that the 2009 inspection arose from a complaint
about the same deteriorated condition shown in the photographs. But this spoliation
presumption is a sanction for exceptional cases involving, among other things, bad
faith on the part of the spoliating party, and it was for the trial court, in the exercise
of his wide discretion, to decide whether such a sanction was appropriate. See Wilkins
v. City of Conyers, 347 Ga. App. 469, 473 (819 SE2d 885) (2018); Sheats v. Kroger
Co., 342 Ga. App. 723, 726-727 (1) (805 SE2d 121) (2017); Jones v. Medical Center
of Central Ga., 341 Ga. App. 888, 893 (4) (802 SE2d 286) (2017). The issue of the
spoliation presumption does not appear to have been raised to the trial court; the trial
court did not charge the jury on that presumption, and the record does not show that
Dale requested such a charge. Under these circumstances, we will not decide in the
first instance to apply the presumption set forth in OCGA § 24-14-22.
In summary, “[w]hile the photographs [in this case] may provide some basis
for inferring age, without context or explanation, any conclusion as to the age of the
[deteriorated condition of the manhole] would be mere speculation.” City of Macon,
6 343 Ga. App. at 265. As a matter of law, Dale did not establish that the alleged defect
on which she built her claim — the deteriorated condition of the manhole — existed
on or before the day she collided with the open manhole, and so to the extent her
claim rests on that alleged defect she did not demonstrate the elements of nuisance.
Even if we consider the defect instead to be the open manhole itself, Dale still
did not demonstrate the elements of nuisance because there is no evidence of any
other instance where the manhole in this case was without its cover, much less
evidence that the open manhole was a repetitive and continuous condition. “A single
isolated act of negligence is not sufficient to show such a negligent trespass as would
constitute a nuisance.” City of Bowman, 243 Ga. at 811 (2). See Goode v. City of
Atlanta, 274 Ga. App. 233, 236 (2) (617 SE2d 210) (2005) (where evidence shows
at most that plaintiff’s harm was caused by isolated act of negligence, first two
elements of nuisance claim are not met). Cf. Mayor & Aldermen of the City of
Savannah v. Herrera, 343 Ga. App. 424, 435-436 (4) (808 SE2d 416) (2017) (jury
question existed as to whether tree obstructing motorists’ line of sight constituted
nuisance even though there was only one prior documented accident implicating tree,
where evidence showed that obstructed view had existed for over ten years and many
“near misses” had occurred at intersection).
7 Moreover, there is no evidence that the city had or was chargeable with
knowledge of either the general deteriorating condition of the manhole or the fact that
it was missing its cover on the day of the incident. See Kicklighter v. Savannah
Transit Auth., 167 Ga. App. 528, 531 (3) (307 SE2d 47) (1983) (finding fact question
regarding city’s knowledge of claimed nuisance — power pole alleged to be too close
to public road — where pole had been in place for 24 years during which it had
sustained scrape marks from passing vehicles). As discussed above, there is no
evidence of the length of time (if any) the alleged defect existed before the accident,
and thus there is no basis to infer that the 2009 inspection concerned the specific
defective condition at issue in this case. See Thompson v. City of Atlanta, 274 Ga.
App. 1, 4 (2) (616 SE2d 219) (2005) (city was entitled to judgment as matter of law
on plaintiff’s nuisance claim where plaintiff’s argument regarding notice relied on
inference based on uncertain or speculative evidence).
Dale points to the city’s lack of a regular practice of inspecting potholes as
evidence of its constructive knowledge. Such evidence could support liability against
a private premises owner in a slip-and-fall action, even if the plaintiff in that action
did not show how long the hazard had been present. See Lomax v. The Kroger Co.,
348 Ga. App. 726, 729 (1) (824 SE2d 629) (2019). But in an action seeking to impose
8 liability on a municipality, a plaintiff must show a higher degree of culpability; mere
negligence is not enough. See City of Bowman, 243 Ga. at 811 (2). “[T]o hold that
[the c]ity should have known of the problem and corrected it, even without any record
of complaints or accidents attributed to the defect, is to impose a standard of ordinary
care, rather than the proper standard requiring a showing that the maintenance of the
defect exceeded mere negligence.” Shuman v. City of Savannah, 180 Ga. App. 427,
428 (349 SE2d 239) (1986) (punctuation omitted; emphasis supplied).
Because the trial evidence did not show all of the required elements of Dale’s
nuisance claim, the city was entitled to a directed verdict.
Judgment reversed. McMillian, P.J., and Senior Appellate Judge Herbert E.
Phipps concur.