SAMANTHA SMITH v. CITY OF ROSWELL

• Court: Court of Appeals of Georgia
• Decided: October 18, 2021
• Docket: A21A0789
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., MERCIER and PINSON, JJ.

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. https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

October 18, 2021

In the Court of Appeals of Georgia A21A0789. SMITH et al. v. CITY OF ROSWELL et al. A21A0790. SMITH et al. v. CITY OF ROSWELL.

MERCIER, Judge.

These consolidated appeals arise from two lawsuits following a fatal vehicle

collision. Steve Smith and his daughter, Sydney Smith,1 died after their vehicle,

which Steve was driving while under the influence, left the road and collided with

two mailboxes owned by Alvin and Judith Nash, and Shannon and Ted Steward.

Steve’s wife and Sydney’s mother, Micah Smith, filed a lawsuit individually, and as

the administrator of Sydney’s estate, against Ann Herrera, the administrator of Steve’s

estate, the City of Roswell, the Nashes, the Stewards, and other defendants.

1 For the purpose of clarity, after the initial mention we will refer to members of the Smith family by their first names. Thereafter, Herrera, as Steve’s administrator, filed a cross-claim against the other

defendants for Steve’s estate’s claims.

Samantha Smith, Micah and Steve’s other daughter, filed Steve’s wrongful

death lawsuit against the City, the Nashes, the Stewards, and other defendants in the

other underlying action. In both actions, the plaintiffs allege that the mailboxes

proximately caused Sydney and Steve’s deaths, and that the City of Roswell

negligently failed to remove the Stewards’ and Nashes’ mailboxes. Further, the

appellants contend that the City’s failure to remove the mailboxes was ministerial in

nature.

The cases are before us following multiple motions to dismiss and a motion to

consolidate. In Case No. A21A0789, the Stewards and Nashes filed motions to

dismiss, arguing that Samantha lacked standing to bring Steve’s wrongful death

lawsuit. The trial court agreed, found that Samantha was not the real party in interest

and concluded that Micah, as the surviving spouse, must bring Steve’s wrongful

death lawsuit. In both appeals, the trial court granted the City of Roswell’s motion to

dismiss, finding that the plaintiffs failed to prove waiver of the City’s sovereign

immunity. Samantha also filed a motion to consolidate the underlying cases, which

the trial court denied.

2 In both appeals, the appellants claim that the trial court erred by dismissing the

City. Additionally, in Case No. A21A0789 Samantha and Herrera claim that the trial

court erred by refusing to order consolidation, and by refusing to allow Samantha to

proceed as the plaintiff in her father’s wrongful death lawsuit.

Case No. A21A0789

1. Samantha filed a motion to consolidate Steve’s wrongful death and estate

claims. The trial court declared the motion moot in light of a ruling in the companion

case which allowed Micah to be substituted in place of Samantha. The court also

denied the Nashes’ and Stewards’ motions to dismiss, ordering that Micah be joined

as the proper party plaintiff in Steve’s wrongful death action and Samantha would

then be dismissed. Unfortunately, after the parties filed their appellate briefs, Micah

passed away.

(a) Samantha and Herrera claimed in their appellate briefs that the trial court

erred by refusing to allow Samantha to bring Steve’s wrongful death claim when her

mother, Micah, declined to file the claim. However, as Steve’s surviving spouse

Micah passed away, Samantha, as Steve’s only living child, is the proper party to

bring Steve’s wrongful death claim. See OCGA § 51-4-2 (b) (1) (“If an action for

wrongful death is brought by a surviving spouse under subsection (a) of this Code

3 section and the surviving spouse dies pending the action, the action shall survive to

the child or children of the decedent.”). Therefore, this enumerated error is now moot.

See In the Interest of I. S., 278 Ga 859, 861 (607 SE2d 546) (2005) (“The general rule

is that appellate courts do not consider moot questions.”) (citation and punctuation

omitted).

(b) Samantha and Herrera contend that the trial court erred by failing to

consolidate Steve’s wrongful death and estate claims. We review a trial court’s ruling

on a motion to consolidate for an abuse of discretion. See Ferguson v. Carver, 257

Ga. App. 849, 850 (572 SE2d 700) (2002).

When actions involving a common question of law or fact are pending before the court, if the parties consent, the court may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

OCGA § 9-11-42 (a). “Generally, all parties must consent to the consolidation of

separate actions.” Hall v. Hill, ___ Ga. App. ___ (3) (859 SE2d 897) (2021).

Undisputably, the defendants in the present matter did not consent to consolidation.

4 The Georgia Supreme Court has carved out a narrow exception and held that

absent consent, consolidation may still be ordered “on the defendant’s motion, of all

claims which derive from personal injuries sustained by a single individual.” Stenger

v. Grimes, 260 Ga. 838, 839 (1) (400 SE2d 318) (1991) (emphasis omitted). The

exception was created to avoid subjecting a defendant “to a substantial risk of

incurring double, multiple, or otherwise inconsistent obligations by reason of the two

claims made against [the defendant.]” Id. (citation and punctuation omitted). Such is

not a danger here. Steve’s estate was named as a defendant in Sydney’s wrongful

death action. Thereafter, Herrera, as the administrator, filed a cross-claim against the

City, the Nashes, the Stewards, and other defendants for Steve’s estate’s claims.

While judicial economy may favor consolidation of the two cases, such a scenario

does not fall within the narrow Stenger exception. As such, the trial court did not

abuse its discretion by denying to order consolidation.2

Case Nos. A21A0789 and A21A0790

2. In granting the City’s motion to dismiss, the trial court found that the

plaintiffs failed to state a claim because they could not meet their burden of proof

2 Of note, the Stewards and Nashes objected to consolidation, in part, because they believed Samantha was an improper party to Steve’s wrongful death action.

5 regarding the City’s waiver of sovereign immunity. “A motion to dismiss for failure

to state a claim should not be granted unless the allegations of the complaint

demonstrate to a certainty that the plaintiff would be entitled to no relief under any

state of facts which could be proved in support thereof.” City of Atlanta v. Mitcham,

296 Ga. 576, 577 (1) (769 SE2d 320) (2015).

Municipal corporations are protected by sovereign immunity. See Ga. Const.

of 1983, Art. IX, Sect. II., Par. IX; OCGA § 36-33-1 (a) (“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, the General Assembly has carved out two

applicable exceptions. First, “[a] municipal corporation shall not waive its immunity

by the purchase of liability insurance . . . unless the policy of insurance issued covers

an occurrence for which the defense of sovereign immunity is available, and then only

to the extent of the limits of such insurance policy.” See OCGA § 36-33-1 (a).

Second, a municipal corporation may be held liable for its “neglect to perform or

improper or unskillful performance of [the municipal corporation’s] ministerial

duties[.]” OCGA § 36-33-1 (b). See also Gatto v. City of Statesboro, 353 Ga. App.

178, 181 (1) (834 SE2d 623) (2019).

6 The applicability of sovereign immunity to claims brought against the State is a jurisdictional issue. Indeed sovereign immunity like various other rules of jurisdiction and justiciability is concerned with the extent to which a case properly may come before a court at all. Therefore, the applicability of sovereign immunity is a threshold determination, and, if it does apply, a court lacks jurisdiction over the case and, concomitantly, lacks authority to decide the merits of a claim that is barred.

City of College Park v. Clayton County, 306 Ga. 301, 314 (5) (830 SE2d 179) (2019)

(citation and punctuation omitted).

“The burden of demonstrating a waiver of sovereign immunity rests upon the

party asserting it.” Ga. Dept. of Labor v. RTT Assoc., 299 Ga. 78, 81 (1) (786 SE2d

840) (2016). Whether sovereign immunity has been waived under the undisputed

facts is a question of law, and we conduct a de novo review. See id.

(a) Both appellants claim that the trial court erred by holding that the City’s

purchase of insurance did not waive its sovereign immunity. The appellants attached

certified copies of the City’s insurance policy to their complaints. But the City

attached a copy of its insurance policy endorsement to its reply brief in support of its

7 motion to dismiss.3 The endorsement states that the policy provides no coverage for

any occurrence “for which any insured would otherwise have an exemption or no

liability because of sovereign immunity, any governmental tort claims act or laws, or

any other state law or federal law. Nothing in this policy, coverage part or coverage

form waives sovereign immunity for any insured.” See Gatto, supra at 183-184 (2)

(when an insurance policy endorsement expressly excludes occurrences when

sovereign immunity applies there is no waiver of sovereign immunity). The trial court

held that the City’s purchase of insurance did not waive its sovereign immunity due

to the express language of the endorsement

“[I]t is not enough that [the] plaintiff[s] show the existence of a liability policy;

the plaintiff[s] must also show that the claims at issue are covered claims and that

they are not otherwise excluded from the policy’s coverage.” City of Alpharetta v.

Vlass, 360 Ga. App. 432, 437-438 (2) (861 SE2d 249) (2021). While the appellants

now claim that the endorsement was inadmissible, they failed to file a brief or motion

challenging the admissibility or applicability of the endorsement at the trial court

3 “[T]he trial court may receive evidence and make relevant factual findings to decide the threshold issue of whether a defendant’s entitlement to sovereign immunity deprives the court of subject matter jurisdiction.” James v. Ga. Dept. of Public Safety, 337 Ga. App. 864, 867 (2) (789 SE2d 236) (2016).

8 level. The appellants contend that they had no opportunity to challenge the

endorsement below, because the endorsement was attached to the City’s reply brief.

However, the City’s reply brief to its motion to dismiss was filed almost a year prior

to the trial court issuing its order. Furthermore, following the trial court’s order

granting the City’s motion to dismiss, Samantha and Herrera filed a motion for

reconsideration, but they failed to challenge the endorsement. Therefore, the

appellants’ argument that they raised a challenge to the endorsement at the first

opportunity is unavailing.

“[A]ppellate courts do not consider issues raised for the first time on appeal,

because the trial court has not had opportunity to consider them.” Tisdale v. City of

Cumming, 326 Ga. App. 19, 23 (n. 7) (755 SE2d 833) (2014) (citation and

punctuation omitted); see also Eichenblatt v. Piedmont/Maple, 341 Ga. App. 761, 767

(3) (801 SE2d 616) (2017) (this Court will not resolve an evidentiary challenge for

the first time on appeal). As such, we affirm the trial court’s ruling that the appellants

failed to demonstrate that the City waived its sovereign immunity by the purchase of

liability insurance.

(b) Finally, the appellants contend that the City had a ministerial duty to

remove the mailboxes and as such the City was not entitled to sovereign immunity.

9 A city’s liability regarding public roads is set out in OCGA §32-4-93 (a), which holds

that:

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.

(emphasis supplied). In other words, “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.” Mayor and Aldermen of the City of Savannah v. Herrera, 343

Ga. App. 424, 428 (1) (808 SE2d 416) (2017) (citation and punctuation omitted).

The question at hand is whether the mailboxes constitute defects in the public

roads pursuant to OCGA § 32-4-93 (a). See Herrera, supra. While the statute limits

the waiver of sovereign immunity to “defects in the public roads,” Georgia appellate

courts have interpreted that to include defects outside of the roadway that directly

impede travel on a public road. See id. at 429 (1) (defects in the public roads “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

10 more hazardous”) (citation and punctuation omitted). In Herrera, supra, we found

that a question of material fact existed as to whether trees adjacent to a street

obstructed the view of oncoming traffic such that it was a defect pursuant to OCGA

§ 32-4-93. Id. at 429-431 (1). We have also held that a fact issue existed as to whether

a power pole six inches from the curb line of the street constituted a defect after a bus

passenger’s arm, which had been propped in an open bus window, became wedged

between the bus and a power pole as the bus traveled down the road. See Kicklighter

v. Savannah Transit Auth., 167 Ga. App. 528, 530-531 (2) (307 SE2d 47) (1983).

Moreover, in Kicklighter, we noted that “the wheels of the bus never left the paved

portion of the road and stayed within the curb, and that the bus was going forward

when the accident occurred.” Id. at 529 (1).

Where a plaintiff alleges that the defective condition which caused injury was located on a part of the city’s street and sidewalk system, there must be some evidence that the defect was located in an area accepted by the city, either expressly or by implication, for use as a street or sidewalk, before the city can be charged with liability for negligently failing to maintain the area in a reasonably safe condition.

City of Alpharetta v. Hamby, 352 Ga. App. 511, 515-516 (1) (b) (ii) (835 SE2d 366)

(2019) (citation and punctuation omitted) (reversed a denial of a motion for directed

11 verdict, finding that the lack of barrier on a retaining wall on the shoulder of a road

was not a defect pursuant to OCGA § 32-4-93).

The complaints in both underlying actions state that Steve and Sydney’s

vehicle “left the roadway” prior to colliding with the mailboxes. To support their

argument that the mailboxes affected travel on the road, the appellants point to an

affidavit from Herman Hill, an engineer, who averred that the “illegal mailboxes

encroach[ed] on the right of way.” However, the mailboxes were indisputably not in

or on the road, as the vehicle “left the roadway” prior to the collision. See City of

Vidalia v. Brown, 237 Ga. App. 831, 832-834 (1) (516 SE2d 851) (1999) (physical

precedent only) (hole in grassy area, but within road “right-of-way,” was not a defect

for which the city was liable). The appellants fail to point to any case law, and we

have not found any, to support their claim that cities have a ministerial duty to keep

an area next to a road safe from defects when the defects do not impede travel on the

road.

The appellants point to rules and regulations from the United States Postal

Service, the Georgia Department of Transportation, and City of Roswell in support

of their argument that the City failed to perform its ministerial duties. However, the

aforementioned rules and regulations provide rules for the construction of mailboxes

12 or the removal of street obstructions. They do not impose a ministerial duty on the

City to remove mailboxes. See OCGA § 36-33-2 (“Where 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.”). As the appellants failed to meet their

burden to prove waiver of the City’s sovereign immunity, we affirm the trial court’s

dismissal of the City.

Judgments affirmed. Dillard, P. J., and Pinson, J., concur.