Dekalb Cnty. v. Stanley

DEKALB COUNTY v. STANLEY; and STANLEY v. DEKALB COUNTY

Nos. A21A0820, A21A0821

Court of Appeals of Georgia, Third Division

September 24, 2021

DOYLE P. J., REESE and BROWN, JJ.

BROWN JUDGE.

Pamela Stanley suffers from neuromyelitis optica, an autoimmune disease that attacks the optic nerve and has rendered her visually impaired. Stanley is considered fully disabled by the Social Security Administration. While walking on a sidewalk in DeKalb County, Stanley tripped and fell in a hole, fracturing her foot. Stanley sued multiple defendants including DeKalb County and David Pelton, "In his Official Capacity as Director of DeKalb County Public Works Transportation Division," asserting claims for negligence, nuisance, and violation of Title II of the Americans with Disabilities Act of 1990 (the "ADA"), 42 USC § 12101 et seq.^[1] The trial court dismissed Stanley's claims for negligence and nuisance on the ground of sovereign immunity, but denied the County's motion for summary judgment on the ADA claim. In Case No A21A0820, the County appeals the denial of its motion for summary judgment on the ADA claim. In Case No. A21A0821 Stanley appeals the trial court's dismissal of her negligence and nuisance claims. We reverse in Case No. A21A0820, but affirm in Case No. A21A0821.

Case No. A21A0820

Background Facts/Procedural History.

This Court reviews de novo a grant or denial of summary judgment viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant. City of St. Marys v. Reed, 346 Ga.App. 508, 508-509 (816 S.E.2d 471) (2018). 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. Id. at 508. See also OCGA § 9-11-56 (c). "[T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case." (Citation and punctuation omitted.) Ellison v. Burger King Corp., 294 Ga.App. 814, 819 (3) (a) (670 S.E.2d 469) (2008). See also OCGA § 9-11-56 (c).

So viewed, the evidence shows that on May 15, 2016, Stanley and her adult son were walking on the sidewalk on Snapfinger Woods Drive in DeKalb County, heading to the Little Giant Supermarket, when Stanley tripped and fell in a hole/cut-out in the sidewalk, fracturing her foot.^[2] Because of her impaired vision, Stanley could not see the cut-out in time to avoid it; Stanley testified during her deposition that she cannot see things until she "get[s] close up" and that while she frequently walked that area and had shopped at Little Giant many times, she had never traversed the portion of the sidewalk where she fell.

Approximately two weeks before Stanley's fall, Dwight Carter, a DeKalb County resident who had narrowly avoided falling into the cut-out in his wheelchair, called the County on May 2, 2016, to complain that the cut-out posed a danger "for anyone, but especially anyone who is disabled." Carter was assured by the County that the cut-out would be fixed. He called six to eight more times to follow-up, and was again told the cut-out would be fixed, but it "still wasn't fixed even three weeks later." A second individual, who saw Stanley's fall, averred that about two weeks before Stanley's fall, she complained about the cut-out to a crew that was mowing grass in the area. The cut-out was not repaired until January 19, 2017, when Peggy Allen, the Deputy Director of Public Works for the County's Road and Drainage Department was made aware of it, apparently as a result of an Open Records Act request made by Stanley in connection with this case.^[3] According to Allen, there is no required time for the County to respond to reports or requests for repair; the time depends on the number of inspectors available and the number of requests in the queue. Allen testified that "it could be 90 days" and that requests must be triaged based on severity.

Stanley sued a number of defendants seeking only compensatory damages. As relevant to the appeal in Case No. A21A0820, Stanley alleged that the County's negligence in leaving the hazardous cut-out in its public sidewalk violated Title II of the ADA and her rights under the Fourteenth Amendment to the U.S. Constitution, resulting in Stanley's discrimination as compared to other citizens who use the public sidewalk and do not have a disability. The complaint specifically alleged the following:

Defendant DeKalb County's negligence in leaving such a hazard in its public sidewalk violated Title II of the ADA.... In spite of having actual notice of the hazard, Defendant DeKalb County did not repair the cut-out to make it safe for the public to use the sidewalk until 8 months after it received actual knowledge of its existence. This unreasonable length of time to repair a known hazard amounts to deliberate indifference by Defendant DeKalb County.... DeKalb County maintains a policy of intentional ignorance regarding defects and hazards in their sidewalk, i.e., DeKalb County maintains a policy that it does not inspect their sidewalks actively and relies on a citizen to call in a complaint about a sidewalk before they will repair it....This policy of intentional ignorance amounts to deliberate indifference to the rights of its citizens.... This policy of intentional ignorance is particularly hazardous to disabled people like [Stanley] who rely on the county to provide safe, non-hazardous sidewalks for its citizens to use.

The County moved for summary judgment on Stanley's ADA claim. The trial court denied the motion, concluding that there was a question of fact as to whether the absence of (i) a County policy related to inspection of the sidewalks and (ii) a County policy to ensure that third parties excavating sidewalks pursuant to permits granted by the County return the sidewalks to their original condition may have constituted deliberate indifference. The trial court also found that "[w]hile it may have been unreasonable to expect [the County] to have fixed the hole within two weeks of [the first] report, the evidence shows it took another eight months after [Stanley's] fall to do so, which a jury could find to be evidence of deliberate indifference."^[4] The County appeals this ruling, contending that the trial court erred in denying its motion for summary judgment for two reasons: (1) Stanley cannot establish that an ADA violation occurred, as she was not denied meaningful access to a County service as a result of her disability, and (2) Stanley cannot show that the County intentionally discriminated against her in violation of the ADA.

Title II of the Americans with Disabilities Act.

Title II of the ADA provides as follows: "Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."^[5] 42 USC § 12132. To state a claim under Title II of the ADA, a plaintiff must establish that: (1) she is a qualified individual with a disability; (2) she was either excluded from participation in or denied the benefits of the services, programs, or activities of a public entity or was otherwise discriminated against by such entity; and (3) such exclusion, denial of benefits or discrimination was by reason of her disability. See Shotz v. Cates, 256 F.3d 1077, 1079 (II) (A) (11th Cir. 2001) (citing 42 USC § 12132); K v. City of South Portland, 407 F.Supp.2d 290, 295 (III) (A) (D. Me. 2006).^[6] The County is a "public entity" within the meaning of the ADA. See 42 USC § 12131 (1) (A) ("[t]he term 'public entity' means . . . any State or local government"). The County does not dispute that Stanley is a "qualified individual with a disability" under the ADA.

In addition, in cases where a plaintiff seeks to recover monetary damages under Title II of the ADA, the plaintiff must show that "the entity [s]he has sued engaged in intentional discrimination, which requires a showing of deliberate indifference." (Punctuation omitted.) Silberman v. Miami Dade Transit, 927 F.3d 1123, 1134 (III) (A) (11th Cir. 2019), citing Liese v. Indian River County Hosp. Dist., 701 F.3d 334, 345, 348 (II) (C) (11th Cir. 2012) (addressing a claim under § 504 of the Rehabilitation Act of 1973, 29 USC § 794). See also McCullum v. Orlando Regional Healthcare System, 768 F.3d 1135, 1146-1147 (III) (C) (11th Cir. 2014) ("[a] plaintiff may prove discriminatory intent by showing that a defendant was deliberately indifferent to his statutory rights"). Deliberate indifference "is an exacting standard . . . which requires showing more than gross negligence." (Citations and punctuation omitted.) McCullum, 768 F.3d at 1147 (III) (C). See Liese, 701 F.3d at 344 (II) (C). See also Americans with Disabilities: Practice &Compliance Manual § 2:217 (May 2021) ("[i]ntentional discrimination can be inferred from a defendant's deliberate indifference to the strong likelihood that the pursuit of its questioned policies will likely result in a violation of federally protected rights"). "It requires proof that the defendant knew that harm to a federally protected right was substantially likely and failed to act on that likelihood." (Citation and punctuation omitted.) Silberman, 927 F.3d at 1134 (III) (A). "Where the substantial likelihood of harm is obvious, a jury may infer that the defendant had actual knowledge of that substantial risk of harm." McCullum, 768 F.3d at 1147 (III) (C), citing Farmer v. Brennan, 511 U.S. 825, 842 (B) (2) (114 S.Ct. 1970, 128 L.Ed.2d 811) (1994).

The ADA was "enacted...