Facts
Around 6:00 a.m. on April 28, 2018, Angela Tucker drove to a hair salon at 1002 Lester Street in Thomasville, arriving while it was still dark. She parked her car on the street and walked into the salon. After a few minutes inside, she came back out to retrieve her cell phone charger and stepped off the curb and into a pothole, which had developed around a water valve box a short distance from the curb. Tucker required surgery to repair her ankle.
In March 2012, or more than six years before Tucker's fall, the City had received a report (as quoted from its own log) of a “[p]othole ... in front of 1002 Lester Street,” including the note that a woman had “already” broken her ankle there. In February 2015, a second woman stepped into the same pothole, breaking her ankle. This woman notified the City of her injury, but the City took no steps to repair the pothole either before or afterward.
In Tucker’s negligence action against the City of Thomasville, the City moved for summary judgment, arguing that Tucker had at least equal knowledge of the pothole because it had not received actual or constructive notice of that defect. The City also argued that Tucker's own lack of care made her responsible for her injury as a matter of law. After a February 2022 hearing, Tucker filed a supplemental brief and attached an affidavit from the second woman who had stepped into the pothole. In April 2022, the trial court granted the City summary judgment, finding “no evidence” that the City was negligent or had actual or constructive notice of the pothole, or that Tucker “took efforts to exercise greater caution for her own safety considering the diminished lighting at the scene.” The trial court also held that the second woman's affidavit, “though untimely filed, does not create a question of material fact” as to notice.
Issues & Holdings
The issues in this case were:
- Did triable questions of fact remain on whether the City was negligent or had actual or constructive notice of the pothole?
- Did triable questions of fact remain on whether Tucker exercised reasonable care for her own safety?
The court answered both questions in the affirmative. It concluded that there were genuine issues of material fact as to whether the City was negligent and had notice of the pothole. It also held there were genuine issues of material fact as to whether the Plaintiff exercised ordinary care.
Reasoning
Under O.C.G.A. § 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.
The Court of Appeals noted, as a preliminary matter, that it was not obligated to consider the second woman's affidavit, because it was untimely under O.C.G.A. § 9-11-56(c) (“prior to the day of hearing,” a non-movant “may serve opposing affidavits”).
The Court then held that the City's own log showed that its employees or agents had notice of a pothole “in front of 1002 Lester Street” as early as March 2012, or well before the incident at issue. Constructive notice of a defect may be imputed through the knowledge of the city's employees or agents. It may also be shown by testimony as to how long the defect existed prior to the injury, objective evidence that the defect existed over time, or evidence that others were injured as a result of the same condition over a period of years. Because evidence of notice existed, the issue was disputed and not susceptible to summary judgment.
The Court similarly held that Tucker’s knowledge and alleged contributory negligence were also issues reserved for the jury, because the evidence—including the fact that this incident occurred during the early morning hours when visibility was diminished—did not show that “plaintiff's knowledge of the risk and lack of due care [was] clear and palpable.”
Conclusion
Tucker shows that claims against municipalities for defects in public roads are viable when supported by evidence of notice to any employee or agent of the municipality. It also affirms that the plaintiff’s exercise of ordinary care should be left to the decision of the jury absent truly undisputed evidence to the contrary.
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Citation: Tucker v. City of Thomasville, No. A23A0318 (Ga. Ct. App. May 23, 2023)
