Chatham Area Transit Auth. v. Brantley

353 Ga.App. 197

834 S.E.2d 593

CHATHAM AREA TRANSIT AUTHORITY

v.BRANTLEY et al.

City of Savannah

v.Brantley et al.

City of Savannah

v.Potts.

City of Savannah

v.Duncan et al.

City of Savannah

v.Adams et al.

City of Savannah

v.Redlus et al.

City of Savannah

v.Greene.

City of Savannah

v.Senn.

City of Savannah

v.Battista.

City of Savannah

v.Murphy.

City of Savannah

v.O'Neill.

City of Savannah

v.Brar et al.

City of Savannah

v.Davis.

City of Savannah

v.Feltes.

City of Savannah

v.Woodby.

City of Savannah

v.Owen.

City of Savannah

v.Owen.

City of Savannah

v.Gray.

City of Savannah

v.Moldrik.

City of Savannah

v.Ayoub et al.

A19A1603

A19A1604

A19A1673

A19A1716

A19A1748

A19A1774

A19A1775

A19A1776

A19A1777

A19A1778

A19A1779

A19A1780

A19A1781

A19A1782

A19A1783

A19A1784

A19A1785

A19A1786

A19A1787

A19A1788

Court of Appeals of Georgia.

September 23, 2019

Reconsideration Denied November 14, 2019

Thomas Langston Bass Jr., Savannah, for Appellant in A19A1603.

John Bell Manly, Savannah, James Everett Shipley Jr., for Appellees in A19A1603, A19A1604, A19A1716, A19A1748, A19A1774.

Richard H. Middleton Jr., Savannah, Richard Scott Harrison, for Appellees in A19A1603, A19A1604, A19A1780, A19A1781.

Jennifer Neison Herman, Colin A. B. McRae, Savannah, W. Brooks Stillwell III, for Appellant in A19A1604, A19A1673, A19A1673, A19A1716, A19A1748, A19A1774, A19A1775, A19A1776, A19A1777, A19A1778, A19A1779, A19A1780, A19A1781, A19A1782, A19A1783, A19A1784, A19A1785, A19A1786, A19A1787, A19A1788.

Christopher Herndon Smith, Patrick Lane Barkley, Savannah, for Appellant in A19A1604, A19A1673, A19A1673, A19A1716, A19A1748, A19A1777, A19A1778, A19A1779, A19A1780, A19A1781, A19A1782, A19A1783, A19A1784, A19A1785, A19A1786, A19A1787, A19A1788.

Brent J. Savage, Savannah, Zachary Russell Sprouse, for Appellee in A19A1673, A19A1775, A19A1776, A19A1777, A19A1779.

Jeffrey W. Lasky, Savannah, Darryl Isaac Lasky, for Appellee in A19A1778, A19A1782, A19A1783, A19A1784, A19A1785, A19A1786.

Robert E. Falligant Jr., Savannah, for Appellees in A19A1780, A19A1781.

Seth Michael Diamond, Atlanta, William Jarrell Degenhart, Savannah, for Appellees in A19A1787, A19A1788.

Brown, Judge.

A group of individuals ("Plaintiffs") filed multiple lawsuits against the Mayor and Alderman of the City of Savannah ("the City") and the Chatham Area Transit Authority ("CAT") after suffering injuries when a dock ramp owned by the City collapsed. The City moved for summary judgment in all cases, contending that the Plaintiffs’ claims were barred by sovereign immunity and immunity under the Recreational Property Act (RPA). CAT then also moved for summary judgment under the RPA in all cases. The trial court denied the City's and CAT's motions, and the City now appeals in all of the related cases. CAT appeals in only one case, A19A1603.¹ We consolidated all of the related cases in this appeal. For the reasons set forth below, we affirm in A19A1603 and reverse in all other cases.

On appeal from the grant or denial of a motion for summary judgment, the court applies "a de novo standard of review, viewing the evidence, including any reasonable conclusions and inferences that it supports in the light most favorable to the non-movant." (Citation and punctuation omitted.)

Henderson v. St. Paul Baptist Church , 328 Ga. App. 123, 761 S.E.2d 533 (2014). To prevail on a motion for summary judgment, the moving party must "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." OCGA § 9-11-56 (c).

So viewed, the record shows that CAT owns and maintains the Savannah Belles Ferry ("the Ferry"), which operates between the Rousakis Riverfront Plaza on River Street and the Savannah International Trade & Convention Center ("the Convention Center"). CAT's entire ferry system operates free of charge to the public. In July 2016, CAT temporarily relocated its Ferry operations on the Savannah River to the dock at issue, which is located on the Savannah River Street Waterfront Plaza. CAT started using this dock as the point at which passengers embarked and disembarked from the Ferry. The entire dock consists of a platform affixed to the bulkhead wall² of the Riverfront Plaza. Two ramps, or gangways, connect to this platform and lead down to two floating docks. One floating dock is available to the public, while the other is exclusively used by emergency services vessels. According to the City's Code of Ordinances, the purpose of the dock is to benefit the public, providing City citizens and visitors the convenience of accessing, enjoying, and viewing historic scenic sites in the City. Additionally, members of the public may moor their boats to the dock free of charge for the first three hours, after which they must pay a fee.

On November 19, 2016, the Convention Center was holding a Christmas convention. A group of people, including Plaintiffs, were standing on the ramp connected to the floating dock, waiting to board the Ferry. At some point, the ramp disengaged from the bulkhead and collapsed. Plaintiffs sustained various injuries in connection with the ramp's collapse and subsequently instituted personal injury actions against the City and CAT,³ alleging negligence and gross negligence in the maintenance of the dock⁴ and operation of the ferry.⁵

On February 13, 2018, the City moved for summary judgment in each of the cases on immunity grounds. CAT initially opposed the City's motion, but later filed its own motion for summary judgment in each of the cases, arguing it too was entitled to immunity under the RPA. The only evidence the parties presented for the trial court's consideration was in the form of affidavits with attached exhibits. The trial court denied the City's motions on May 7, 2018, and issued an identical order in each of the cases consolidated in this appeal. The trial court also denied CAT's motion for summary judgment in each of the cases. The City filed applications for interlocutory review of the trial court's denials of its motions for summary judgment in all cases. CAT filed an application for interlocutory review in only one case. We granted the applications and, as stated above, consolidated all of the related cases in this appeal.

The City

1. Sovereign Immunity. In two related enumerations of error, the City asserts that the trial court erred in denying its motion for summary judgment because the City is shielded from liability by sovereign immunity.

Sovereign immunity is a threshold issue that the trial court is required to address before reaching the merits of any other argument. It is axiomatic that the party seeking to benefit from the waiver of sovereign immunity bears the burden of proving such waiver. Whether sovereign immunity has been waived under the undisputed facts of this case is a question of law, and this Court's review is de novo.

(Citations and punctuation omitted.) Fulton County v. SOCO Contracting Co. , 343 Ga. App. 889, 893 (1), 808 S.E.2d 891 (2017). Under the Georgia Constitution, municipalities are protected by sovereign immunity unless the General Assembly waives it. Ga. Const. of 1983, Art. IX, Sec. II, Par. IX. This principle is reiterated in OCGA § 36-33-1, which pertinently provides that "it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages." OCGA § 36-33-1 (a). However, subsection (b) of this same statute provides a narrow waiver of a municipality's sovereign immunity "[f]or neglect to perform or improper or unskillful performance of [the municipal corporation's] ministerial duties." OCGA § 36-33-1 (b). This provision has been consistently interpreted "to mean that municipal corporations are immune from liability for acts taken in performance of a governmental function but may be liable for the negligent performance of their ministerial duties." (Citations omitted.) City of Atlanta v. Mitcham , 296 Ga. 576, 577-578 (1), 769 S.E.2d 320 (2015).

One such ministerial duty long recognized by the courts of this State "is the duty of a municipality to maintain city streets in a reasonably safe condition for travel." (Citations omitted.) City of Savannah v. Herrera , 343 Ga. App. 424, 428 (1), 808 S.E.2d 416 (2017). A municipality's duty in this regard is delineated by OCGA § 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.

Id. Stated differently, "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." (Citation and punctuation omitted.) Roquemore v. City of Forsyth , 274 Ga. App. 420, 423, 617 S.E.2d 644 (2005). The City argues that the trial court erred in applying this statutory waiver to the case at hand. Specifically, the City argues that the dock is not a "public road[ ] of its municipal street system," such that the City's ministerial duty to maintain its streets under OCGA § 32-4-93 (a) is implicated. We disagree.

Section 3 of Chapter 1 defines "public road" for the purposes of Title 32 and includes a non-exhaustive list of examples:

a highway, road, street, avenue, toll road, tollway, drive, detour, or other way that either is open to the public or has been acquired as right of way, and is intended to be used for enjoyment by the public and for the passage of vehicles in any county or municipality of Georgia, including but not limited to the following public rights, structures, sidewalks, facilities, and appurtenances incidental to the construction, maintenance, and enjoyment of such

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