Denson v. City of Atlanta

414 S.E.2d 312, 202 Ga. App. 325, 1991 Ga. App. LEXIS 1761
CourtCourt of Appeals of Georgia
DecidedDecember 4, 1991
DocketA91A1174, A91A1175, A91A1176
StatusPublished
Cited by21 cases

This text of 414 S.E.2d 312 (Denson v. City of Atlanta) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Denson v. City of Atlanta, 414 S.E.2d 312, 202 Ga. App. 325, 1991 Ga. App. LEXIS 1761 (Ga. Ct. App. 1991).

Opinions

Judge Arnold Shulman.

These three appeals arise from an automobile collision which occurred at the intersection of Lee and West Whitehall Streets in the City of Atlanta (“the City”). The two drivers involved in the collision, appellants Denson and Golden, obtained a jury verdict against the city awarding them damages based on a nuisance theory; however, the trial court subsequently granted the city’s motion for judgment notwithstanding this verdict. Case Nos. A91A1174 and A91A1175 are Denson’s and Golden’s respective appeals from that ruling, while case No. A91A1176 is a cross appeal by the City from the dismissal of a third-party complaint which it had filed against the Metropolitan Atlanta Rapid Transit Authority (“MARTA”).

The intersection where the collision occurred is known as the “Lee Street-West Whitehall Street” intersection. Its configuration is somewhat unusual in that to the south of the intersection Lee Street runs one way northbound, while Whitehall Street runs one way southbound. Upon reaching the intersection, Lee Street apparently shifts direction and runs east and west. The intersection is located near the MARTA West End Rail Station, and a series of piers supporting MARTA’s elevated tracks occupy the median between northbound Lee Street and southbound West Whitehall Street. The traffic lights at the intersection are governed by a “conflicts monitor” which automatically switches the signals to a flashing mode whenever a disruption of the normal “stop-and-go” pattern is detected. (The signals may also be switched to the flashing mode manually, if necessary.) Such device is mandated by the Manual on Uniform Traffic Control Devices for Streets & Highways (the “manual”), a body of regulations published by the Federal Highway Administration for the purpose of assuring uniform traffic regulation throughout the country, which has been adopted both by the State of Georgia and by the city.

The city’s Bureau of Traffic & Transportation (“the Bureau”), which is charged with responsibility for maintaining such traffic sig[326]*326nals, received a report about 9:00 a.m. on November 13,1986, that the traffic signals at the intersection were flashing red for east-west traffic and yellow for north-south traffic. A repair crew was dispatched; and by 1:00 p.m. the controller mechanism had been replaced, restoring the signal to the normal “stop-and-go” mode. However, at 7:00 the following morning the bureau received a report that the traffic lights at the intersection were again flashing. A repair crew was again dispatched; and the signals were again returned to their normal function, this time through an adjustment to the new controller mechanism.

At some point between 1:00 and 2:00 a.m. on November 15, 1986 (i.e., the following night), a collision occurred at the intersection, between an eastbound and a northbound vehicle. The Atlanta police officer who investigated this accident noted in her report that the signals were operating in the flashing mode at the time, but she assumed that the signals had been switched to that mode intentionally, and she consequently did not report this to the bureau. At approximately 8:00 the next morning, appellant Golden, who was proceeding northbound into the intersection, collided with appellant Denson, who was proceeding eastbound across the intersection. Both drivers observed the flashing signals but were nevertheless unable to see each other until just before the impact.

Denson filed suit against the city on a nuisance theory and against Golden on a negligence theory. Golden cross-claimed against the city on a nuisance theory and counter-claimed against Denson on a negligence theory. The City filed a third-party complaint against MARTA, which moved successfully to dismiss that claim, and Denson thereafter dismissed his counterclaim against Golden. As previously indicated, Denson and Golden ultimately obtained a jury verdict against the city, but the trial court granted the city’s motion for judgment notwithstanding that verdict.

1. “ ‘ “(T)he motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” ’ [Cit.]” Bryant v. Colvin, 160 Ga. App. 442, 444 (287 SE2d 238) (1981).

The trial court granted the city’s motion for judgment n.o.v. in this case based on a determination that the evidence was insufficient as a matter of law to support a finding that the “malfunctioning” of the traffic light had constituted a nuisance. The maintenance and operation of traffic signals by a municipality normally is considered a [327]*327governmental function. Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141) (1968). While a municipality is not liable for negligence in the exercise of a governmental function, it may be liable for injury resulting from the maintenance of a nuisance regardless of whether it arises from the exercise of a governmental or a ministerial function. Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (3) (249 SE2d 224) (1978).

If the act, omission, or defect alleged to constitute a nuisance is merely negligence, no matter how egregious the result, the municipality will not be liable for damage suffered. See City of Atlanta v. Roberts, 133 Ga. App. 585 (211 SE2d 615) (1974). In determining whether a condition constitutes a nuisance, as opposed to mere negligence, the following guidelines apply: “(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 constitute nuisance, [Cit.]) (2) The act must be of some duration . . . and the maintenance of the act or defect must be continuous or regularly repetitious [cits.] [,and] (3) Failure of the municipality to act within a reasonable time after knowledge of the defect or dangerous condition. [Cit.]” City of Bowman v. Gunnells, 243 Ga. 809, 811 (1) (256 SE2d 782) (1979). See also Mayor &c. of Savannah v. AMF, Inc. 164 Ga. App. 122 (295 SE2d 572) (1982); Carter v. Mayor &c. of Savannah, 200 Ga. App. 263 (407 SE2d 421) (1991).

The appellants presented expert testimony to the effect that the intersection was dangerous when the signals were operating in the flashing as opposed to the normal “stop and go” pattern because of the visual obstruction created by the MARTA piers. However, to be liable for the maintenance of a nuisance, “ ‘the municipality must be chargeable with . . . creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury ...,’” and with failing to act within a reasonable time after acquiring knowledge of the condition. Bowman v. Gunnells, supra, 243 Ga. at 810. While the evidence showed that the signals had previously shifted to the flashing mode for several hours on each of the two mornings immediately prior to the appellants’ collision and that the lights had also been operating in that mode at least since approximately 1:00 a.m.

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Denson v. City of Atlanta
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Bluebook (online)
414 S.E.2d 312, 202 Ga. App. 325, 1991 Ga. App. LEXIS 1761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denson-v-city-of-atlanta-gactapp-1991.