The City of Vidalia v. Amy Wade Johnson

• Court: Court of Appeals of Georgia
• Decided: June 3, 2025
• Docket: A25A0586
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., MARKLE and PADGETT, 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

June 3, 2025

In the Court of Appeals of Georgia A25A0586. CITY OF VIDALIA v. JOHNSON.

MARKLE, Judge.

Amy Johnson sued the City of Vidalia (“the City”) for negligence and nuisance

after she injured herself when she tripped over an uneven sidewalk. The City moved

for summary judgment, arguing it did not have actual or constructive notice of the

damaged sidewalk; there was no statutory duty to inspect sidewalks; and Johnson’s

own lack of ordinary care and contributory negligence precluded recovery. The trial

court denied the motion because it found there was evidence the City had constructive

notice of the defect, and the City’s failure to maintain the sidewalks was more than

mere negligence sufficient to make out a nuisance claim. The City now appeals, and

for the reasons that follow, we reverse. Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law[.]” OCGA § 9-11-56 (c). “We review the . . . denial

of summary judgment de novo, viewing the evidence, and all reasonable inferences

drawn therefrom, in the light most favorable to the nonmovant.”(Citation and

punctuation omitted.) Cook v. SMG Constr. Svcs., 373 Ga. App. 354, 355 (1) (908 SE2d

387) (2024).

So viewed, the record shows that Johnson and a friend were running on Center

Drive in the City late one afternoon in June 2018. They opted to run up the east side

of this particular street because it had a sidewalk. Although Johnson was checking her

surroundings as she ran, and nothing blocked her view, she did not see the uneven

portion of the sidewalk and she fell, shattering her right shoulder and bruising her face.

The friend, who was running ahead of Johnson, had noticed the uneven portion of the

sidewalk and was able to avoid it.

About six months or so after the fall, Johnson returned to the spot on Center

Drive where she fell and took a photo of the uneven sidewalk. She then sued the City

2 for negligence and nuisance.1 The City moved for summary judgment, arguing that it

had no statutory duty to inspect the sidewalks; it had no actual or constructive

knowledge of the damaged sidewalk; there was no evidence the City was negligent in

maintaining the sidewalks; and Johnson had equal knowledge of the risk and failed to

exercise ordinary care.

In support of its motion, the City submitted depositions of William Torrence,

the City manager, and Robert Akins, who was employed by the company the City

hired to manage public works. Torrence explained that the City’s informal policy

required employees to report any issues with sidewalks, and it had not received any

reports about this area. In 2004, the City Council approved money for a program to

repair sidewalks, but Torrence could not say whether the program ever went into

effect. Instead, several years later, the owner of Georgia Safe Sidewalks (“GSS”)

approached Torrence offering to repair dislodged sidewalks in certain areas. GSS did

additional repairs in 2012 and 2013, including on the west side of Center Drive.

Torrence never asked GSS to make repairs to the east side of the street.

1 Johnson originally sued the City and two entities responsible for repairing sidewalks. The complaint was dismissed without prejudice, and the instant complaint was filed as a renewal action naming only the City as defendant. 3 Akins confirmed that his crew was not contracted to do any inspection,

maintenance, or repairs of the City’s sidewalks from 2013 to 2018. He was only alerted

to the sidewalk defect after Johnson fell. And when he went to inspect the area, he

could see that the sidewalk was not level and could be a trip hazard.

Johnson opposed the summary judgment motion, arguing that issues of

nuisance, negligence, and contributory negligence were for the jury; the City knew it

had an obligation to maintain and repair its sidewalks; and it had constructive notice

of the hazard. Attached to the motion were photos of the relevant location taken six

months after the accident, showing a sidewalk displacement of about two inches.

Johnson also pointed to the deposition testimony of GSS owner Todd Fulk, who

explained that sidewalk displacement is common due to ground shifting over time.

Fulk opined that sidewalk displacement is visible, and anyone walking would be able

to see it. Fulk stated that he did repair projects for the City, including in 2013 when

the City hired him to make repairs to the sidewalk on the west side of Center Drive.

Following a hearing, the trial court denied the City’s summary judgment

motion. First, the trial court found that the City failed to show it had sufficiently

maintained its sidewalks. The court noted that, even if the City did not have actual

4 knowledge of the defects in its sidewalks, there were questions of fact as to how long

the defect existed for purposes of the City’s constructive knowledge. Next, the court

rejected the argument that Johnson failed to exercise ordinary care because the law did

not require that Johnson look down while she was running. Finally, the trial court

found the City’s failure to keep its sidewalks in repair was more than mere negligence

for purposes of the nuisance claim. The City obtained a certificate of immediate

review, and this interlocutory appeal followed.

In related enumerations of error, the City argues that the trial court erred by

denying its motion for summary judgment because (1) the City had no actual or

constructive knowledge of the hazard as required under OCGA § 32-4-93 to impose

liability on it; (2) Johnson had equal or superior knowledge of the displaced sidewalk,

as it was an open and obvious static defect; and (3) there was insufficient evidence to

show the sidewalk was a nuisance. We agree that the City was entitled to summary

judgment.

1. The City first argues that the trial court erred because the City had no duty

to inspect sidewalks, and the liability for negligent maintenance as set forth in OCGA

§ 32-4-93 only applies when the municipality makes repairs in a negligent manner. It

5 further contends that it can only be liable in this case if it had actual or constructive

notice of the specific hazard. In contrast, Johnson asserts that the City has a duty to

maintain its sidewalks and it had constructive notice of the defect.

It is well settled that a city has a duty to keep its sidewalks in a reasonably safe

condition. Roquemore v. City of Forsyth, 274 Ga. App. 420, 422 (617 SE2d 644) (2005).

Nevertheless, under OCGA § 32-4-93 (a),

[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.

See also Tucker v. City of Thomasville, 367 Ga. App. 700, 701 (888 SE2d 265) (2023);

City of Vidalia v. Brown, 237 Ga. App. 831, 833 (1) (516 SE2d 851) (1999) (OCGA

§ 32-4-93 (a) applies to sidewalks). Here, Johnson has not shown a question of fact

sufficient to survive summary judgment.

“[A] city has an obligation to keep streets and sidewalks free from obstructions

and may be liable for negligent performance of this ministerial duty.” Rutherford v.

DeKalb County, 287 Ga. App. 366, 369 (1) (b) (651 SE2d 771) (2007); see also Gatto

6 v. City of Statesboro, 312 Ga. 164, 167 (1), n. 4 (860 SE2d 713) (2021). But we have

never held that a passive failure to maintain a sidewalk would be a basis for liability.

Rather, in cases addressing negligent maintenance, we have identified some

affirmative action the city performed in a negligent manner. See, e.g., City of Suwanee

v. Padgett, 364 Ga. App. 34, 37 (3) (a) (873 SE2d 712) (2022) (city’s decision to plant

a tree too close to sidewalk, which then caused the sidewalk to “heave,” was sufficient

to survive summary judgment on claim of negligent construction or maintenance);

compare Roquemore, 274 Ga. App. at 423 (“[T]here is no evidence that any negligence

on the part of city employees caused the streetlight to malfunction.”) (emphasis

supplied).

Additionally, we have never imposed liability on a municipality for the negligent

maintenance of its streets and sidewalks in the absence of notice of the defect.2 See

2 In her brief, Johnson argues that there is no notice requirement where the City was negligent in its maintenance of the sidewalk. But our case law set forth above has recognized that a claim based on negligent maintenance requires a showing of notice. Johnson also argues that the City tasked all its employees with inspecting sidewalks, but they did so negligently because they were not trained to inspect or identify defects. Pretermitting whether the City was required to have a formal inspection procedure, Johnson has offered no evidence to show how long the sidewalk had been uneven; thus, she cannot show that the damaged sidewalk would have been discovered. See Naraine v. City of Atlanta, 306 Ga. App. 561, 564 (1) (b) (703 SE2d 31) (2010) (“given the absence of evidence of any accidents occurring in the area of [plaintiff’s] fall due 7 Herrera, 343 Ga. App. at 428 (1) (“[M]unicipalities 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.”) (citation and punctuation omitted); Crider v. Atlanta, 184 Ga.

App. 389 (1) (361 SE2d 520) (1987) (“Where no evidence is presented which would

authorize a finding of actual or constructive knowledge of an alleged defect, judgment

should be entered in favor of the municipality.”).

Turning to whether Johnson created a factual question as to the City’s notice,

we have explained,

[b]y statute, a municipality is relieved of liability resulting from a defect in a public road or sidewalk 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. Implied or constructive notice of a defect may be shown in a variety of ways; for example, testimony as to how long the defect had existed prior to the accident, objective evidence that the defect had existed over time, or evidence that other persons had also fallen as a result of the same condition over a period of years. Notice may

to ice or spillage of water from the fountain into the area at issue, the City had no duty to inspect the fountain at the time of the incident.”). Moreover, to the extent that she complains that the employees were not properly trained to appreciate the hazard, their evidence showed that identifying sidewalk hazards did not require an expert. 8 also be imputed to the city from the knowledge of its own agents or employees.

(Citation omitted.) City of St. Marys v. Reed, 346 Ga. App. 508, 509 (816 SE2d 471)

(2018); see also OCGA § 32-4-93; Crider, 184 Ga. App. at 389 (1).3 None of those

factors are present here. There were no reports of prior injuries and no testimony that

any City employee was aware of the defect before Johnson’s fall. Nor was there any

evidence as to how long the defect could have been there such that a fact-finder could

infer knowledge.

The only evidence Johnson submitted to establish the City’s constructive

knowledge was photographs taken months after the fall.

[W]hile the photographs may provide some basis for inferring age, without context or explanation, any conclusion as to the age of the alleged defect in the sidewalk would be mere speculation. The photographs only show the condition of the alleged defect in the sidewalk at one point in time after the accident. . . . But, the photographs alone do not establish how long the alleged defect took to develop and worsen, and [Johnson] has not brought forth any additional evidence to contextualize or lend support to her arguments regarding the length of time this area of the sidewalk had this defect.

3 Johnson does not contend the City had actual notice. 9 (Citations and punctuation omitted.) City of St. Marys, 346 Ga. App. at 510. And, as

Fulk testified, sidewalks are constantly shifting due to a variety of factors; a photo

taken months after would give no indication of what the sidewalk looked like on the

day of the accident, and thus provides no insight into the City’s constructive

knowledge. Compare Clark v. City of Atlanta, 322 Ga. App. 151, 153-154 (744 SE2d

122) (2013) (photos of sidewalk showing its condition in the years preceding plaintiff’s

fall coupled with photos taken two months after were sufficient to create jury

question).

Johnson argues that she was not relying solely on the photographs to show

constructive notice, but also on Fulk’s testimony regarding sidewalk displacements.

But Fulk’s testimony does not create a factual question about whether the hazard was

present for a sufficient length of time to infer knowledge, nor was the testimony

specific to the location where Johnson fell. Thus, Johnson’s claim fails due to her

inability to proffer any evidence that would raise a question of fact as to the City’s

constructive notice, and the City was entitled to summary judgment on the negligence

claim.4

4 The City further contends that Johnson failed to exercise ordinary care and had equal or superior knowledge of the defect, which was an open and obvious static 10 2. The City also argues that it was entitled to summary judgment on the

nuisance claim. Again, we agree.

A municipality may be held liable for damages it causes due to maintenance of

a nuisance. City of Atlanta v. Dale, 353 Ga. App. 817, 818 (2) (840 SE2d 56) (2020).

To establish a nuisance, Johnson must show:

(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 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.

(Citation and punctuation omitted.) Id. Although generally a question for the jury, in

some cases, the question of nuisance can be a question of law. Id.

Under the facts of this case, we can say as a matter of law that Johnson cannot

establish nuisance. Johnson has offered no evidence that the City’s conduct was more

than mere negligence or anything other than an isolated incident. Nor does she offer

evidence that the City failed to remove the defect after learning of it. Notably, the

condition. In light of our conclusion in Division 1, we need not address these issues. 11 friend with whom Johnson was running traversed the uneven sidewalk without issue.

Given the facts of this case, Johnson’s claim for nuisance fails, and the City was

entitled to summary judgment. Dale, 353 Ga. App. at 818 (2); see also Mayor and

Aldermen of City of Savannah v. Altman, No. A24A1829, __ Ga. App. __ (2) (913

SE2d 729, 732 (2) (2025) (city entitled to summary judgment on nuisance claim

arising from buckled sidewalk where city showed lack of evidence in the record that

sidewalk constituted a public nuisance “that injures all members of the public who

come in contact with it.”); Thompson v. City of Atlanta, 274 Ga. App. 1, 4 (1), (2) (616

SE2d 219) (2005) (nuisance claim failed where evidence of notice of defect was

speculative or uncertain).

Judgment reversed. Doyle, P. J., and Padgett, J., concur.