Godinho v. City of Tybee Island

499 S.E.2d 389, 231 Ga. App. 377
CourtCourt of Appeals of Georgia
DecidedJune 26, 1998
DocketA97A1703
StatusPublished
Cited by11 cases

This text of 499 S.E.2d 389 (Godinho v. City of Tybee Island) 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
Godinho v. City of Tybee Island, 499 S.E.2d 389, 231 Ga. App. 377 (Ga. Ct. App. 1998).

Opinions

Eldridge, Judge.

Jairza Godinho filed suit against the City of Tybee Island, Georgia (“City”), for damages arising out of a fall she sustained when she was walking on the City’s cement sidewalk and tripped in a hole in the cement, fracturing her wrist in three places. She appeals the trial court’s granting of the City’s motion for summary judgment, which ruling was based upon the trial court’s application of the Recreational Property Act (“RPA”) to the sidewalk at issue and upon the trial court’s determination that there is an absence of evidence in the record showing that the City had actual or constructive knowledge of the sidewalk’s defect. However, because (1) the RPA does not apply to the sidewalk at issue and (2) the pleadings demonstrate the City’s constructive knowledge of the defect, we reverse the judgment of the trial court.

1. The Recreational Property Act at OCGA § 51-3-22 provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.” The owner must own and provide the land for recreational use in order to come within the ambit of limited tort liability of OCGA § 51-3-20. The purpose of the RPA is to “encourage property owners to make their property available to the public for recreational purposes by limiting the owner’s liability.” (Emphasis supplied.) Cedeno v. Lockwood, Inc., 250 Ga. 799,. 801 (2) (301 SE2d 265) (1983). For the RPA to apply, “the [378]*378important criterion is the purpose for which the public is permitted on the property. If the public is invited to further business interests of the owner — e.g., for sales of food, merchandise, services, etc. — then the RPA will not shield the owner from liability even though the public receives some recreation as a side benefit.” Cedeno v. Lockwood, Inc., supra at 802.

Further, the purpose for which the public is permitted on the property does not depend upon an individual’s use. That one may use a sidewalk to reach the local laundromat does not give one a greater cause of action against a city than one who uses the same sidewalk to stop and smell the roses. Under the RPA, the inquiry centers around the purpose for the sidewalk, not the purpose of the individual user. Cedeno v. Lockwood, Inc., supra at 801-802.

Accordingly, the RPA does not apply to the sidewalk at issue for two reasons:

(a) The City of Tybee Island does not own the beach or make it available for recreational purposes to the public. “The foreshore itself belongs to the State and is available to all, with access thereto not diminished.” Lines v. State of Ga., 245 Ga. 390, 397 (9) (264 SE2d 891) (1980); see also State of Ga. v. Ashmore, 236 Ga. 401 (224 SE2d 334) (1976). Thus, the beaches within the City of Tybee Island are neither owned nor provided by defendant for recreational purposes, because the beaches are the property of the State to which all have right of access for recreation or other purposes provided by the State and not the City of Tybee Island. Accordingly, the sidewalks that provide beach access are not provided for recreational purposes within the meaning of OCGA § 51-3-21.

(b) The portion of the sidewalk in question runs from 14th Street to 18th Street bordering a large public parking lot on one side and the beach on the other. The sidewalk is used by visitors and residents alike to reach businesses, restaurants, motels, and condos, as well as to access the beach area. The City attracts the public to its beaches, not for the sheer recreational pleasure of the people, but because the public spends money in the City’s businesses, including paying for entry into the parking lot during the summer months. “They provide scenic areas and comfortable facilities to attract the public to their businesses, not to give the public a place for recreation.” (Emphasis omitted.) Cedeno v. Lockwood, Inc., supra at 802. The City’s sidewalks facilitate this purpose.

The trial court erred in granting summary judgment to the City based upon an application of the RPA.

2. “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 [379]*379defect has not existed for a sufficient length of time for notice thereof to be inferred.” OCGA § 32-4-93 (a). This Code section applies to a municipality’s public sidewalks, as well. See Brumbelow v. City of Rome, 215 Ga. App. 321 (450 SE2d 345) (1994). “If the . . . defect existed for such a length of time as by reasonable diligence in the performance of its duty, the defect ought to have been known by the municipal authorityE,] then notice will be presumed.” (Citation and punctuation omitted; emphasis in original.) Andrews v. City of Macon, 191 Ga. App. 745, 747 (382 SE2d 739) (1989). The question of constructive notice is ordinarily one for the jury, except in the absence of any evidence as to constructive notice, and the issue of negligence is a matter of law, not a question of fact for the jury. Id.

Here, Godinho asserted that her fall was caused by a defect in the cement sidewalk; that the cement sidewalk was in bad repair and in a defective condition; and that the defect had existed for a sufficient period of time prior to her fall that the City knew or in the exercise or ordinary care should have known of its existence and carried out the necessary repairs. The record is replete with evidence from which to infer that the defect had existed for a sufficient period of time that the City’s knowledge of the sidewalk’s defect might be presumed. This includes the conventional wisdom that, generally, holes in cement do not occur overnight; pictures that show that the sidewalk was in a general state of disrepair; pictures which indicate that the hole in the cement sidewalk had been there a long time; testimony that plaintiff’s pictures of the sidewalk with the hole in it are consistent with how the area looked prior to and at the time of plaintiff’s fall; and testimony that the particular stretch of sidewalk in question is especially susceptible to cracking and damage because of its proximity to the ocean. Compare Andrews v. City of Macon, supra. In addition, the record contains extensive, detailed maintenance logs that demonstrate city workers had been “at or near the site of [Godinho’s] accident” prior to the fall in order to sweep the sidewalk, cut weeds by the sidewalk, repair the snow fence adjacent to the sidewalk, and remove all of the handrails embedded in the sidewalk from 14th Street to 18th Street and patch the holes in the sidewalk resulting from the removal of the handrail poles.

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Bluebook (online)
499 S.E.2d 389, 231 Ga. App. 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/godinho-v-city-of-tybee-island-gactapp-1998.