THIRD DIVISION
MCFADDEN, P. J.,
MCMILLIAN and SELF, 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.
http://www.gaappeals.us/rules
February 15, 2017
In the Court of Appeals of Georgia
A16A1629, A16A1630. CITY OF EAST POINT v. YOUNG, and
vice versa.
MCFADDEN, Presiding Judge.
Lillian Young contends that, by repeatedly driving a garbage truck on a
driveway to an apartment complex she had owned, the city of East Point damaged it.
Both Young and the city moved for summary judgment. The trial court denied
Young’s motion and partially granted the city’s. Young appealed, and the city cross
appealed.
We agree with the trial court that the city is entitled to summary judgment on
Young’s negligence, negligence per se, and trespass claims. And the trial court
correctly denied Young’s motion for summary judgment on her nuisance claim.
We do not reach the city’s cross appeal. The city argues that, because Young
failed to produce evidence of damages, it is also entitled to summary judgement on
her nuisance claims and her inverse condemnation claim. But the trial court did not
address that argument.
We therefore affirm the judgment of the trial court in both the main appeal and
cross appeal.
1. Background.
“Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). This
[c]ourt applies a de novo standard of review to an appeal from a grant of summary
judgment and we view the evidence in the light most favorable to the nonmovant.”
Davis v. Overall, 301 Ga. App. 4 (686 SE2d 839) (2009) (citation omitted).
So viewed, the record shows that Young owned a 20-unit rental property in the
city of East Point from February 2007 until July 2012, when she lost it in foreclosure.
She alleged that the city of East Point repeatedly drove a garbage truck on one of the
property’s three driveways, causing the condition of the driveway to deteriorate until
it became unusable. She alleged that she notified the city of the problem, but city
employees continued to drive the garbage truck on the driveway. She alleged that the
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condition of the driveway caused tenants to fail to renew their leases and potential
tenants to decide not to lease apartments in her property. She alleged that the resulting
decline in her rental income caused her to lose the property in foreclosure.
She filed this action, asserting claims of negligence, negligence per se, trespass,
nuisance, and inverse condemnation. The parties moved for summary judgment. The
trial court granted the city summary judgment on Young’s claims of negligence,
negligence per se, and trespass, ruling that the city was entitled to sovereign
immunity. It denied both parties’ motions for summary judgment on the nuisance
claim, finding that whether the city maintained a nuisance, whether its actions caused
an injury, and whether Young gave notice were triable issues of fact. The trial court
denied the city’s motion for summary judgment on Young’s inverse condemnation
claim, finding that it, too, depended on triable issues of fact. Young appealed and the
city cross-appealed.
2. The grant of summary judgment to the city on Young’s negligence,
negligence per se, and trespass claims.
Young argues that the trial court erred in granting summary judgment to the
city on her claims for negligence, negligence per se, and trespass. She argues that,
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contrary to the trial court’s ruling, the city operated its sanitation service as a
proprietary venture, excepting it from sovereign immunity. The trial court did not err.
Generally, a municipality is immune from liability for its performance of
governmental functions, which are defined as “those of a purely public nature,
intended for the benefit of the public at large, without pretense of private gain to the
municipality.” City of Atlanta v. Mitcham, 296 Ga. 576, 577-578 (1), (2) (769 SE2d
320) (2015). In comparison, a municipality may be liable for the negligent
performance of its ministerial functions, which are defined as “those involving the
exercise of some private franchise, or some franchise conferred upon [the
municipality] by law which it may exercise for the private profit or convenience of
the [municipality] or for the convenience of its citizens alone, in which the general
public has no interest.” Id. at 578 (1), (2) (footnote, citation, and punctuation
omitted).
A municipality’s collection of garbage generally “is a governmental function,
for the performance of which [it] is granted immunity from liability for the negligent
acts of its officers and employees.” City of Atlanta v. Chambers, 205 Ga. App. 834,
835 (2) (424 SE2d 19) (1992) (citation and punctuation omitted). Young relies on an
exception to this general rule, which
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may arise where a city operates a garbage collection service primarily as
a business enterprise and source of revenue, rather than primarily as a
public service. . . . Whether the enterprise turns a profit . . . is not the
controlling point; what is significant is the character of the enterprise as
primarily a source of revenue rather than being used primarily for the
benefit of the public regardless of incidental generation of revenues.
Id. (citations and punctuation omitted).
The city made a sufficient showing under the rule set out in Chambers. It
introduced the affidavit of Charles Moore, the city’s solid waste manager, who
testified that the city operates its garbage collection service as a public service, not
as a proprietary endeavor. Moore stated that 100 percent of the garbage collection
fees are used to off-set the expenses of running the solid waste department and that
the fees do not constitute a revenue source for the city. Although Young moved to
strike Moore’s affidavit as based on speculation and hearsay, she has pointed to no
trial court ruling on her motion. In any event, her objection went to Moore’s
testimony about the department finances, not his testimony about the department’s
character in operating as a public service.
To support her argument that an issue of fact exists as to whether the city’s
sanitation service is a profit-making business enterprise, Young points to an annual
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financial report in which the solid waste fund is listed under the category heading
“proprietary funds.” Assuming that this document is admissible and that its use of the
phrase “proprietary funds” could support the inference Young would draw, it is
nevertheless insufficient to create a question of fact because it does not contradict
Moore’s unambiguous testimony that the city operates its garbage collection service
as a public service, that garbage collection fees are exclusively used to off-set the
expenses of providing the garbage collection service, and that the fees do not
constitute a revenue source for the city.
So Young has not shown that the trial court erred in ruling that “the [c]ity’s
garbage collection service is a governmental function, and the [c]ity is protected by
sovereign immunity from [Young’s] negligence, negligence per se and trespass
claims.”
Young also argues that by continuing to enter her property, the city violated her
“due process and just compensation rights under Eminent Domain and the
Constitution,” thereby waiving immunity. This simply restates her still-pending claim
for compensation for inverse condemnation. It does not state a basis for waiving
sovereign immunity.
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Young has failed to show that the trial court erred in determining that the city
is entitled to immunity on her claims for negligence, negligence per se, and trespass.
3. The denial of Young’s motion for partial summary judgment on her
nuisance claim.
Young argues that the trial court erred in denying her motion for partial
summary judgment on the issue of the city’s liability on her nuisance claim because
the material facts are undisputed. The trial court correctly denied the motion.
To state a claim of nuisance against a municipality, a plaintiff must
establish that (1) the city’s conduct was egregious enough to exceed
mere negligence, (2) the resulting continuous or repetitious dangerous
condition was of some duration, and (3) the city failed to correct the
danger within a reasonable time after acquiring knowledge of the defect
or dangerous condition.
City of Atlanta v. Landmark Envtl. Indus., 272 Ga. App. 732, 733 (1) (613 SE2d 131)
(2005) (citation omitted).
The evidence in support of Young’s nuisance claim shows that twice a week
from April 2010 to July 2012 — even after she told them to stop — the city’s
employees came onto her property with a garbage truck, damaging a concrete
driveway and so causing her discomfort, loss of peace of mind, and unhappiness. The
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trial court found that evidence sufficient to overcome the city’s motion for summary
judgment. But he also found that the city “provided ample evidence to create a triable
issue of fact as to whether or not the [c]ity created and maintained a nuisance . . . .”
We agree.
The city introduced the affidavit of the primary driver of the city garbage truck
that serviced Young’s property. He testified that he never used the concrete driveway
at issue, but instead used a different, sturdier driveway. The city also introduced the
affidavit of the superintendent of the city’s sanitation department, who testified that
the city did not use the concrete driveway to access Young’s dumpster. He admitted
that he could not explain a photograph that showed a sanitation truck on the concrete
driveway because that “was never the assigned route to access the dumpster.”
Young argues that these affidavits do not create a question of fact because the
affiants’ testimony is false. But the trial court denied Young’s motion to strike the
affidavits on this ground and Young has not enumerated that ruling as error. We agree
with the trial court that whether the city created and maintained a nuisance is a
disputed question of fact.
4. The denial of the city’s motion for summary judgment on Young’s nuisance
and inverse condemnation claims.
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The city argues that it is entitled to summary judgment on Young’s nuisance
and inverse condemnation claims because Young has presented no evidence of
damages. The city raised this argument in its motion for summary judgment, but the
trial court did not address it. So we do not address it either.
Although the issue of [damages] was raised below by the evidence and
by [the city’s] arguments in support of its motion for summary
judgment, the trial court did not address the matter in its summary
judgment order. Thus, if we were to conclude that the trial court erred,
it would be on account of an issue never ruled on below. See City of
Gainesville v. Dodd, 275 Ga. 834, 837 (573 SE2d 369) (2002) (noting
principle that “[t]here having been no rulings by the trial court on the
issues raised on appeal, there are no rulings to review for legal error”)
(citation and punctuation omitted). As we have said, although an
appellate court sometimes can review a record for purposes of summary
judgment as effectively as a trial court and determine that the ruling
under review was right for some reason other than the reason given by
the court below, we do not think an appellate court properly ought to
consider whether the trial court was “wrong for any reason.”
Nebo Ventures, LLC v. NovaPro Risk Solutions, L.P., 324 Ga. App. 836, 848 (4) (752
SE2d 18) (2013) (citation omitted). Accordingly, we conclude that it is appropriate
for the trial court to address in the first instance whether the city is entitled to
summary judgment on this ground. But see Stroud v. Hall County, 339 Ga. App. 37,
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41 (2) (__ SE2d __) (2016) (citation and punctuation omitted) (“[A] plaintiff’s failure
to produce probative evidence of a specific amount of damages is not a viable basis
for summary judgment.”).
Judgments affirmed. McMillian and Self, JJ., concur.
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