[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15753 May 30, 2006
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 03-00398-CV-DF-5
ALLEN REGINALD WALDEN,
as parent and natural guardian of
Corey Luke Walden, a deceased minor,
Plaintiff-Appellant,
versus
THE CITY OF HAWKINSVILLE, GEORGIA,
a municipal corporation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
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(May 30, 2006)
Before EDMONDSON, Chief Judge, TJOFLAT and BARKETT, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Allen Reginald Walden, as parent and natural guardian
of Corey Luke Walden, a deceased minor, appeals the district court’s grant of
summary judgment in favor of the City of Hawkinsville, Georgia (the “City”), in
this diversity case alleging state law claims of nuisance and negligence. No
reversible error has been shown; we affirm.
On 6 August 2003, about 2.55 inches of rain fell in Hawkinsville during a
two-hour period. This torrential downpour caused water in the storm drainage
ditch running perpendicular to Sioux Place Alley, a city street, to overflow onto
the street. Several businesses back onto Sioux Place Alley, and the street is
located adjacent to a parking area. During the storm, Corey Walden and his
friend, Caleb Barnett, were walking on Sioux Place Alley and observed the water
flowing over the street from the drainage ditch. Corey Walden lost his footing,
fell into the drainage ditch, and was swept into a culvert running under Sioux
Place Alley, where he drowned. The culvert was built in the early 1900s and was
about 3 feet from the paved surface of Sioux Place Alley. At the time of the
accident, no fence or barrier stood between the street and the drainage ditch.
Plaintiff alleged that the City’s creation and maintenance of this storm water
drainage area constituted a nuisance and that the City was negligent by failing to
adopt certain safety measures. In granting summary judgment to the City, the
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district court determined, among other things, that the City had no notice of a
flooding problem in Sioux Place Alley before the accident.
We review a district court’s grant of summary judgment de novo, viewing
the facts--as supported by the evidence in the record--and reasonable inferences
from those facts in the light most favorable to the nonmoving party. Young v.
City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004). Summary judgment is
proper where no genuine issue of material fact exists. Id.
Plaintiff argues that the district court erred in granting summary judgment
on his negligence and nuisance claims because he presented a genuine issue of fact
about whether the City had actual and constructive knowledge of defects with the
culvert. Plaintiff points first to the culvert’s proximity to Sioux Place Alley. He
contends the City had notice of this alleged defect because the culvert was built in
the early 1900s and because Plaintiff’s engineer, Lawson Graham, opined that the
City should have placed a barrier between the road and the culvert and should
have widened the road shoulder. Plaintiff also asserts that the City had notice that
the culvert was undersized (thus causing the drainage ditch and the alley to flood)
based on admissions of Kevin Tolliver, the engineer retained by the City to
investigate the accident, and on Graham’s report.
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Plaintiff bases his negligence claim on O.C.G.A. § 32-4-93(a), which
provides:
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.
If a city has neither actual nor constructive notice of a defect, it, thus, may not be
held liable for that defect. Georgia courts have written that a plaintiff must show
actual knowledge of a defect if the defect has existed “only a short time so that the
municipality could not reasonably have had knowledge.” Andrews v. City of
Macon, 382 S.E.2d 739, 747 (Ga. App. 1989) (citation omitted). But if the defect
“existed for such a length of time as by reasonable diligence in the performance of
its duty, the defect ought to have been known by [the municipal authority] then
notice will be presumed.” Id. (emphasis in original).
The district court correctly determined that the City had neither actual nor
constructive notice (1) of defects in the culvert’s proximity to the alley, and (2) of
a flooding problem in the alley before the accident. Plaintiff identifies no
evidence, either past injuries, complaints, or work orders, showing that the City
had actual notice (1) that the culvert’s proximity to the alley, or the lack of a
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barrier around the culvert, posed a danger to pedestrians, or (2) that the undersized
culvert had caused the alley to flood. About constructive notice, Plaintiff points to
the age of the culvert and to Graham’s opinion that the City (1) should have placed
a barrier between the road and the culvert and (2) should have widened the road
shoulder. But Graham identified no past events--either in the Hawkinsville area or
during his career--where a person was injured or died because of overflow from a
storm water drainage ditch. The City, further, received no flooding or debris
reports about Sioux Place Alley. And--in the absence of evidence of problems
with the culvert--we are unwilling to imply the City’s knowledge of alleged
defects merely because the culvert was built long ago.
We also reject Plaintiff’s contention that the City had constructive notice of
a flooding problem due to the undersized culvert. During his post-accident
investigation, Tolliver stated that he had heard that water had been “high” in the
drainage ditch infrequently in preceding years, and he agreed with Graham that the
culvert was too small to handle a 25-year storm event. But the City had no
information or complaints about storm water overflowing the drainage ditch or
about a person slipping into the drainage ditch or the culvert. See Thompson v.
City of Atlanta, 616 S.E.2d 219, 221-22 (Ga. App. 2005) (declining to determine
that city had notice of flooded intersection, where city only received one
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complaint of drainage problems three years before accident and no complaints of
vehicle accidents).
Plaintiff, further, identifies no statute, code, or ordinance governing the
design of pre-existing culverts in similar locations. And although Graham’s report
showed three instances in the five years preceding the accident where he expected
rainfall to cause a flooding event at least as severe as the flooding on 6 August
2003, these instances occurred over a one-day period. In this case, a similar
amount of rain fell in a two-hour period. Graham conceded that whether rain falls
over a short time or whether it is spread over 24 hours is a relevant consideration.
And regardless, we again note that no evidence shows that the alley had actually
flooded in the past.
We, further, reject Plaintiff’s nuisance claim. “Knowledge or notice of the
alleged defective condition is an element” of a nuisance claim. Thompson, 616
S.E.2d at 222. Plaintiff failed to show that the City had notice of a defective
condition with the culvert.
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In sum, the district court did not err in granting summary judgment to the
City on Plaintiff’s claims of negligence and nuisance.1
AFFIRMED.
1
Plaintiff also challenges the district court’s determination that he had waived a challenge to the
City’s claim of sovereign immunity under O.C.G.A. § 36-33-1. As we conclude that the district
court correctly granted summary judgment in favor of the City on the merits of Plaintiff’s claims,
we need not address the district court’s alternate decision about sovereign immunity. See Thompson,
616 S.E.2d at 220-21 (declining to decide sovereign immunity issue when plaintiff’s claim under
§ 32-4-93 failed on the merits). Because the City’s lack of actual or constructive knowledge of
defects with the culvert disposes of Plaintiff’s claims, we need not address his argument that the
district court erred by requiring him to show that the City--in addition to its general duty to keep safe
its public roads and sidewalks--was required to inspect culverts or to construct them in a manner safe
for citizens using the adjacent roadway.
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