As a general rule, a property owner is liable for any dangerous conditions that he knows about or reasonably should have known about. The former is known as “actual notice,” while the latter is “constructive notice.” This applies not just to private property owners, but also city and county governments, as a recent decision by the Georgia Court of Appeals illustrated.
City of Fitzgerald v. Caruthers
In this case, the victim himself was a municipal employee. While walking home one night from his job at the City of Fitzgerald’s public works department, a tree limb fell on the victim, knocking him unconscious and leaving him with serious injuries to his back, neck and eye.
The city’s public works director later visited the site of the accident and saw the rotted tree limb next to a decaying tree. He ordered the tree’s removal, although he did not document the work request or take pictures of the tree. The victim later observed the tree’s removal and noticed its stump had clearly rotted parts.
The victim subsequently sued the city for premises liability. The city moved for summary judgment, arguing, among other things, it was entitled to sovereign immunity. The trial court denied summary judgment, and on appeal, the Court of Appeals agreed the case should proceed to trial.
Judge M. Yvette Miller, writing for a unanimous three-judge panel of the Court of Appeals, said sovereign immunity did not apply in this case. Sovereign immunity prevents someone from suing the state or a municipality for failure to exercise a discretionary function. Victims may still sue when a government agency fails to perform a non-discretionary or “ministerial” duty. Here, Georgia law expressly states “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.”
In other words, the city can be held liable here if it had actual or constructive notice of the defective tree and failed to remove it in a timely manner. Judge Miller said both questions were for a jury to decide. The city may have had actual notice, the judge observed, as the director of public works admitted his department did not keep proper records of complaints regarding defective tree limbs. But even if the city did not have actual notice, it may still have had constructive notice, based on the director’s and the victim’s testimony the defective tree in question had clearly been decaying for some time before the accident.
The issue for the jury will be to determine whether or not the average person would have noticed something wrong with the tree. For instance, neither the director nor the victim were themselves tree experts. Yet both could tell the tree was in poor shape. That suggests the city, which employed 38 people to maintain the public streets, should have discovered the defective tree before the date of the accident.