City of Saint Marys v. Reed. , 346 Ga. App. 508 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
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.
http://www.gaappeals.us/rules
June 21, 2018
In the Court of Appeals of Georgia
A18A0625. CITY OF SAINT MARYS v. REED. DO-022
DOYLE, Presiding Judge.
This appeal arises from the trial court’s denial of a motion for summary
judgment filed by the City of Saint Marys in a trip and fall action filed by Eunice
Reed, who sustained a fractured arm and other injuries after she fell on a sidewalk she
claims is owned and maintained by the City. After the trial court denied the motion,
it issued a certificate of immediate review, and this Court granted the City’s
application for interlocutory appeal. The City claims on appeal that the trial court
erred by denying its motion for summary judgment. For the reasons that follow, we
reverse.
Summary judgment is proper 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. We review the grant or denial of a motion for summary judgment
de novo, and we must view the evidence, and all reasonable inferences
drawn therefrom, in the light most favorable to the nonmovant.1
So viewed, the record reveals that Reed was injured in June 2007 while
walking for exercise when she tripped and fell on a sidewalk, breaking her arm.2 Reed
testified that it was a clear day, nothing was obstructing the sidewalk, and she could
have seen the crack in the sidewalk but did not notice it that day. Photographs of the
sidewalk show a seam along two slabs causing one slab to be about 1.5 to 2 inches
taller than the neighboring slab. Reed could not say for sure whether she tripped over
the raised portion of the slab, but she “just knew that [her] feet hit something.” She
could not say the exact point on which she tripped, only that it was at that slab. After
falling, she called her daughter and 911, and a fire truck responded. Reed’s daughter
transported her to the hospital, and the following day, Reed met with an officer,
reporting her injury, and the officer prepared a report.
1
(Citation and punctuation omitted.) Johnson Street Properties, LLC v. Clure,
302 Ga. 51, 52 (1) (805 SE2d 60) (2017).
2
The sidewalk was located along Georgia Spur 40 in St. Marys, Georgia,
owned or maintained by the Georgia Department of Transportation (“DOT”) and/or
the City. Reed later voluntarily dismissed her claims against DOT.
2
The City filed numerous motions for summary judgment, and the trial court
denied them, finding that questions of fact existed, inter alia, as to whether the City
had constructive notice of the defect. We disagree and reverse.
By 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 also be imputed to the city from the knowledge of its own agents or
employees.3
“The question of constructive notice ordinarily is for the jury, except in the
absence of any evidence of constructive notice that could create a fact question, and
in such an instance, the issue of negligence is a matter of law. Further, the length of
time a defect must exist in order for an inference of notice to arise is ordinarily a jury
question.”4
3
(Citations and punctuation omitted.) Crider v. City of Atlanta, 184 Ga. App.
389 (1) (361 SE2d 520) (1987) (collecting cases).
4
(Citations omitted.) Clark v. City of Atlanta, 322 Ga. App. 151, 153 (744
SE2d 122) (2013).
3
Pretermitting the issue of whether the City is responsible for the sidewalk,
Reed has failed to present sufficient evidence that the City had actual or constructive
notice of the defect. Similar to this Court’s case in City of Macon v. Brown,5 the trial
court’s order concludes that a fact question existed as to whether the City had actual
notice of the defect based on the photographs of the defect submitted by Reed. Reed
did not provide further evidence such as prior reports to the City or other evidence of
when the defect first appeared or prior sightings of the defect by herself or others.6
That said, the trial court determined that based on the photographs of the sidewalk,
“[t]he crack was so long that it arguably should have been discovered by the City,
even with a cursory sidewalk inspection program, prior to Plaintiff’s injury.”
Nevertheless, as this Court explained in Brown,
[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 roadway would be mere speculation. The
photographs only show the condition of the alleged defect in the
roadway at one point in time . . . after the accident. The trial court’s
5
343 Ga. App. 262 (807 SE2d 34) (2017).
6
Compare with Clark, 322 Ga. App. at 153-154 (holding that a question of fact
existed as to constructive notice based on an expert’s analysis of photographs of the
defect and images of the area taken a year prior to the plaintiff’s injury).
4
analysis was based on its review of the photographs. But, the
photographs alone do not establish how long the alleged defect took to
develop and worsen, and [Reed] has not brought forth any additional
evidence to contextualize or lend support to h[er] arguments regarding
the length of time this area of the [sidewalk] had this defect.7
Accordingly, the trial court erred by denying the City’s motion for summary
judgment, and we need not address the City’s remaining enumerations of error.
Judgment reversed. Dillard, C. J., and Mercier, J., concur.
7
Brown, 343 Ga. App. at 265, citing Rischack v. City of Perry, 223 Ga. App.
856, 859 (2) (479 SE2d 163) (1996); Brumbelow v. City of Rome, 215 Ga. App. 321,
322 (450 SE2d 345) (1994).
5