Scott v. City of Millen

Court of Appeals of Georgia

Scott v. City of Millen

265 S.E.2d 30, 153 Ga. App. 231, 1980 Ga. App. LEXIS 1761

CourtCourt of Appeals of Georgia

DecidedFebruary 1, 1980

Docket58289

StatusPublished

Cited by5 cases

This text of 265 S.E.2d 30 (Scott v. City of Millen) 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.

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Scott v. City of Millen, 265 S.E.2d 30, 153 Ga. App. 231, 1980 Ga. App. LEXIS 1761 (Ga. Ct. App. 1980).

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Opinion

Sognier, Judge.

1. In its order granting summary judgment the trial court recited that the "entire file” had been considered. Accordingly, the enumeration of error asserting that the court erred as a matter of law "in failing to consider all of the depositions on file in the matter” is without merit. General Motors Corp. v. Walker, 244 Ga. 191 (259 SE2d 449) (1979).

2. Plaintiffbrought this wrongful death action in two counts. As to Count 1, based on negligence, defendant states in its brief: "The substantive issue in this case turns on whether or not the City of Millen operated Lincoln Park and the swimming pool therein [in which plaintiffs minor child was drowned] as a governmental function.” That question must be answered in the affirmative so that the city is shielded from negligence claims by the doctrine of governmental immunity (Cornelisen v. City of Atlanta, 146 Ga. 416 (91 SE 415) (1916); Petty v. City of Atlanta, 40 Ga. App. 63 (148 SE 747) (1929)). However, as to Count 2, the city’s motion does not pierce the pleadings as to the allegations of maintaining a nuisance. City of Bowman v. Gunnells, 243 Ga. 809 (256 SE2d 782) (1979). Having failed to do so, the grant of summary judgment is sustained as to Count 1 and must be reversed as to Count 2.

*232 Submitted October 15, 1979 Decided February 1, 1980. Bobby Jones, for appellant. Julian P. Cheney, for appellee.

Judgment affirmed in part; reversed in part.

McMurray, P. J., and Banke J., concur.

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Sognier, Judge.

1. In its order granting summary judgment the trial court recited that the "entire file” had been considered. Accordingly, the enumeration of error asserting that the court erred as a matter of law "in failing to consider all of the depositions on file in the matter” is without merit. General Motors Corp. v. Walker, 244 Ga. 191 (259 SE2d 449) (1979).

2. Plaintiffbrought this wrongful death action in two counts. As to Count 1, based on negligence, defendant states in its brief: "The substantive issue in this case turns on whether or not the City of Millen operated Lincoln Park and the swimming pool therein [in which plaintiffs minor child was drowned] as a governmental function.” That question must be answered in the affirmative so that the city is shielded from negligence claims by the doctrine of governmental immunity (Cornelisen v. City of Atlanta, 146 Ga. 416 (91 SE 415) (1916); Petty v. City of Atlanta, 40 Ga. App. 63 (148 SE 747) (1929)). However, as to Count 2, the city’s motion does not pierce the pleadings as to the allegations of maintaining a nuisance. City of Bowman v. Gunnells, 243 Ga. 809 (256 SE2d 782) (1979). Having failed to do so, the grant of summary judgment is sustained as to Count 1 and must be reversed as to Count 2.

*232 Submitted October 15, 1979 Decided February 1, 1980. Bobby Jones, for appellant. Julian P. Cheney, for appellee.

Judgment affirmed in part; reversed in part.

McMurray, P. J., and Banke J., concur.

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265 S.E.2d 30, 153 Ga. App. 231, 1980 Ga. App. LEXIS 1761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-city-of-millen-gactapp-1980.

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