City of Atlanta v. Perkins

905 S.E.2d 838

CITY OF ATLANTA

v.PERKINS; and vice versa.

A24A0695

A24A0696

Court of Appeals of Georgia.

August 21, 2024

Thomas Edward Reilly, Mark L. Bailey, Atlanta, William Alexander Smith, Norcross, Margaret Sparks Mathis, for Appellant in A24A0695.

Dwight Headley Chamberlin, Atlanta, William E. Gray II, Maxwell Kent Thelen, Seth Aaron Lowry, for Appellee in A24A0695.

Dwight Headley Chamberlin, Atlanta, William E. Gray II, Maxwell Kent Thelen, Seth Aaron Lowry, for Appellant in A24A0696.

Thomas Edward Reilly, Mark L. Bailey, Atlanta, William Alexander Smith, Norcross, Margaret Sparks Mathis, for Appellee in A24A0696.

Hodges, Judge.

This case involves negligence and nuisance claims brought by Gregory Theodore Perkins against the City of Atlanta. Perkins alleged he was injured when he stepped on a City water meter lid that flipped into the water meter box, causing him to fall. A jury awarded nearly $2.4 million to Perkins. In Case Number A24A0695, the City appeals the trial court’s imposition of spoliation sanctions and the admission of certain evidence. In Case Number A24A0696, Perkins appeals the trial court’s decision granting the City’s motion for judgment notwithstanding the verdict and overturning the jury’s award of OCGA § 13-6-11 attorney fees to him. For the reasons that follow, we affirm in both cases.

The record shows that the City owns and maintains a complex water system, containing approximately 160,000 water meters, to provide water service to City residents. Meters are underground boxes that house water-usage measuring components and are usually covered by an oval or round metal lid. In 2005 or 2006, the City began modernizing the water meter system and contracted with private companies, including K&V Meter Automation, LLC ("K&V"), to update the system to an automated reader and fit the boxes with new or retrofitted lids to assist in the automated meter reading. During the modernization, various box sizes were used that required different types of lids. One lid measured 18 1/8 inches by 9 7/8 inches ("the smaller-sized lid") while another measured 19 1/4 inches by 9 1/4 inches ("the larger-sized lid"). The lids also varied in how they secured to the boxes: lids had zero, two, or four prongs, and some of the lids had locking mechanisms while others did not.

Jonathan Webb, an area supervisor for the City, deposed that the City instructed Watershed Department employees to replace the existing lids with better-fitting lids, especially if the employee observed an ill-fitting lid. Natalie Knight, a City representative designated under OCGA § 9-11-30 (b) (6), and Lance Hollis, a senior City inspector, confirmed this directive. The specific instruction was to follow the specifications requiring lids to fit securely without rocking and to replace lids that did not properly fit. Lid replacement was not always documented, but the City replaced "[p]robably a thousand" ill-fitting lids. The City was well aware that meter lid fit was a problem in the City and sent postcards to all its customers urging them to report meter lid issues, which customers did, but the City knew there were still thousands of lids that did not fit the boxes correctly.

In fact, in 2007, the City Auditor’s Office estimated that out of a sample size of 138 of the 12,377 small meters installed, 41 percent "had a lid that didn’t fit" and 72 percent "had an unlock[ed] lid[.]" "Many of the meter sites … observed had noticeable gaps between the meter box and lid." The Auditor’s Office determined that meter lids that did not fit meter boxes could cause a potentially hazardous condition and recommended that the City perform periodic inspections. The City auditor informed the City that relying on customer reports regarding ill-fitting lids was inadequate and recommended that the City devise a maintenance plan to identify the ill-fitting lids and correct them.

Gwendolyn Burns, a City claims advisor and 30 (b) (6) representative, testified that the City was well aware that a lid that did not fit the water meter box would have a natural tendency to flip when someone stepped on it. She deposed that the City had general knowledge that there was a lid problem and that the lids did not always fit the meter boxes that K&V installed. In 2012, Burns wrote: "Although there is no record notice to meter problems at the subject location [where Perkins fell], the City was well aware that it had several thousand meters that were improperly covered with the incorrect meter lid size creating hazardous meter conditions." Hollis likewise testified that lids that were too small for the meter box could flip if stepped on.

Angelena Kelly, a former City claims investigator, deposed that she investigated numerous claims of injuries allegedly received by individuals after "stepping onto a defective water meter [or ill-fitting lid] that was installed by K&V Automation" prior to Perkins’ accident. Kelly found "liability probable due to lid issue with K&V" on most occasions.

On September 3, 2011, Perkins was driving to visit family when he encountered a fallen tree limb in the road. He stopped and dragged the tree branch onto the residential property at 1814 Dodson Drive in Atlanta. While moving the branch, Perkins walked backwards, glancing back and watching for the curb as he backed up. Perkins claims he stepped on a water meter and the lid "kind of slipped away" under his weight, allegedly causing him to fall into the water meter pit and tearing his left knee quadricep tendon. It is undisputed that this water meter and lid was part of the City’s waterworks system. Perkins’ daughter took photographs of the site later that day.

Immediately following the incident, Perkins spoke with Warren Hayes, the City claims investigator subsequently assigned to his claim, who explained the claims procedure to him. On September 9, 2011, six days after the incident, Perkins filed a claim report with the City. The claim report noted that Perkins stopped to remove a limb which was blocking the street and, as he moved the limb, he stepped on a water meter cover located at 1814 Dodson Drive in Atlanta, fell to the ground, and heard something pop in his leg. The City opened an investigation, informing Perkins of this action in a letter dated September 28, 2011.¹ According to Hayes, Perkins "was very persistent" and called "possibly every other day, definitely more than twice a week."

On November 7 or 8, 2011, Webb visited the property, took photographs of the water meter and lid, and stepped on the lid to assess its safety. He did not lift the lid off the box or remove the lid. Webb was not told that someone had been injured while walking on the water meter; he believed he was looking for "the lid to be missing when they sent [him] out there." Webb spent approximately five or ten minutes at the site and determined that the lid was the correct size and securely fit the meter box. Webb purportedly forwarded his photographs to Hayes, but Hayes denied receiving any photographs, and the City could not locate the photographs taken by Webb.

Less than two months later, someone else took a picture of the water meter lid at 1814 Dodson Drive. Webb was shown the picture during his deposition. Webb could not recall what size lid was on the water meter when he inspected it, but deposed that the picture taken two months after his investigation did not appear to depict the same lid that he inspected. When shown two pictures of lids, Webb stated that he believed one picture depicted an exemplar of "the original lid that was probably on that box[,]" but then stated that he could not "be sure of that, which lid[,]" and he admitted that the photographed lid found on the water meter box two months after his inspection was a different lid. He surmised that it was "probable" that someone switched the lid on the water meter box after his inspection.

In 2013, Perkins hired an attorney and his attorney and an expert examined the lid at 1814 Dodson Drive. It was determined that the smaller-sized lid was on the water meter box at that time. The expert noted that the smaller-sized lid covering the water meter box had the possibility of flipping or tipping into the box when he stepped on it. Perkins subsequently filed a complaint in Fulton County State Court, alleging negligence, nuisance, and vicarious liability against the City. In short, the complaint asserted that Perkins suffered injuries after stepping on a water meter lid that was too small for the meter box.

In April 2014, Brian Spencer, another city inspector, visited the property and photographed the lid. Spencer reported that the lid was locked and fit the meter box, but he replaced it with a new lid as instructed by his supervisor. He discovered "lots of debris in the box" and a broken "piece of lid" inside the meter box. Spencer brought the lid he replaced and the broken piece to the City Watershed Management facility, and it was then transferred and stored with the legal department. The lid purportedly stored at the legal department was the smaller-sized lid. It is undisputed that the City could not locate the photographs Spencer took.

In addition, Wole Ralph, a City 30 (b) (6) representative, deposed that the City was unable to locate the lid that Spencer removed. Ralph stated in his deposition: "We don’t have that. We have lids of similar size and dimension — of the same size and dimension. We don’t have that actual lid." Ralph did not know what happened to the actual lid Spencer removed but assumed it had been lost. When asked, "And it is the position of the City of Atlanta today that the lid is lost?" Ralph responded, "That the lid — yes, the lid is not accessible…. [R]ight now, we are not able to put our hands on the lid." The City brought two lids to the deposition and claimed one of the lids was the same type as the lid Spencer removed from the water meter at issue in 2014. Ralph, however, conceded that he did not know whether the lid recovered...