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Housing Authority of Atlanta v. Famble
Citations: 317 S.E.2d 853; 170 Ga. App. 509; 1984 Ga. App. LEXIS 2893Docket: 67078, 67079
Court: Court of Appeals of Georgia; March 29, 1984; Georgia; State Appellate Court
The case involves the wrongful death of two young sisters, Lisa and Yvonne Famble, who drowned in an overflowing storm sewer behind the Villa Monte housing complex on August 29, 1979. Their mother, Brenda Famble Gardner, along with Roy Gardner, filed a lawsuit against several defendants including the Atlanta Housing Authority, National Homes Construction Corporation, Villa Monte Homes, and G. M Management Corporation, seeking damages for the children's deaths and their conscious pain and suffering. A default judgment was issued against some defendants, but G. M successfully had this judgment set aside. During the trial, National Homes was granted a directed verdict in its favor, while the jury found the remaining defendants liable, awarding $400,000 for wrongful death and $100,000 for pain and suffering. The defendants, Atlanta Housing and Villa Monte Homes, appealed, claiming the evidence was insufficient to support the jury's verdict. The incident occurred at a storm sewer designed to channel surface water, which was crossed by a footbridge used by residents to access a nearby playground. Brenda Famble stated she had instructed her children to stay indoors, with permission to play outside under supervision. A violent rainstorm led to the formation of a deep pond with a strong current at a storm sewer. Angela Gardner, age 10, was responsible for her two younger sisters, Yvonne and Lisa. While playing at a playground, Yvonne was chased by a dog and ran into the water, followed by Lisa, who attempted to rescue her. Angela tried to help by using a nearby door but was unsuccessful. A nearby apartment resident heard the cries for help and attempted a rescue but was also nearly swept away. Both sisters drowned, with their bodies later recovered near the headwall and inside the inlet pipe. The principles of negligence are outlined, requiring: 1) a legal duty to protect others from unreasonable harm; 2) a breach of that duty; 3) a causal connection between the breach and the injury; and 4) resulting loss or damage. Informally, negligence analysis involves assessing if the defendant's actions contributed to the injury, if the victim was legally protected against such conduct, if the duty was breached, and the monetary evaluation of the victim's losses. Determining negligence typically falls to the jury, unless the facts are clear and undisputed. There must also be a causal link between the alleged negligent act and the injury sustained. The excerpt outlines the legal principles surrounding causation and duty of care in tort law, specifically in the context of personal injury cases. The 'sine qua non' or 'but for' rule establishes that a defendant's act or omission must be a direct cause of the injury for liability to arise. The concept of 'proximate cause' is emphasized, indicating that an injury must be directly traceable to a wrongful act, which is essential in determining legal responsibility. Various cases illustrate these principles, including the requirement that even negligent actions do not result in liability unless they are causally related to the injury. The text addresses the specific factual scenario of children's drowning due to ponding water, questioning whether the defendants’ actions contributed to this dangerous condition through either affirmative acts or negligent omissions. The discussion also delves into the duty owed by landowners to individuals on their property, which varies based on the injured party's status as an invitee, licensee, or trespasser. A landowner owes the highest duty of care to invitees, requiring ordinary care to maintain safe conditions. In contrast, the duty is lesser for licensees and minimal for trespassers, focusing on avoiding willful or wanton harm. The status of a person as invitee, licensee, or trespasser is determined without considering their age or mental capacity. A heightened level of precaution is required when a child is present in the vicinity of a dangerous condition on a property, as established in Higginbotham v. Winborn. The legal obligation to exercise greater care applies specifically to child licensees, distinguishing it from the responsibilities owed to adult guests. The duty of care may extend beyond a landowner to any individual in control of the property, regardless of ownership or superior rights, as noted in Scheer v. Cliatt and Daniel v. Ga. Power Co. Two critical issues from the trial included the cause of flooding in a storm sewer and the party responsible for its maintenance. Witness testimonies identified two primary causes: a blockage in the sewer line and inadequate design to handle severe rainfall. Evidence indicated that water levels receded quickly post-incident, suggesting the flood was primarily due to an extraordinary downpour. Expert testimonies pointed to potential obstructions at the inlet pipe, with maintenance staff removing debris shortly after the event. Discrepancies arose regarding the sewer's design and location; one expert deemed it dangerously situated near a playground and critiqued its open design, while another defended it as standard and capable of managing significant rainfall when unobstructed. Testimony also highlighted the lack of a grate at the headwall's opening, with conflicting accounts regarding the construction responsibilities for the storm sewer. National Homes Construction was determined to be responsible for the construction of the storm sewer, which had received design and location approval from HUD. The jury likely concluded that the cause of the ponding was clogging rather than a defective design or construction, as National Homes Construction was not assessed damages. The question of negligent causation arises, emphasizing that negligence would require a duty owed to the children and direct contribution to the condition leading to their deaths. Responsibility for maintenance and upkeep of the sewer is critical, hinging on property ownership and control, particularly regarding the site of the drownings. The storm sewer components were located near the boundary of two parcels: the larger, Villa Monte complex owned by National Homes, and the smaller parcel retained by Atlanta Housing. Both parcels were part of a larger tract initially owned by the Federal Government, which Atlanta Housing acquired for redevelopment. National Homes obtained the Villa Monte property from Atlanta Housing and constructed the project. Villa Monte Homes, a cooperative association, managed the property, while Atlanta Housing retained ownership of the smaller parcel. National Homes possessed a construction easement on the Atlanta Housing land for storage and construction purposes. Importantly, a completion certificate was required for the property transfer from Atlanta Housing to National Homes; however, evidence indicated that while HUD issued a letter of completion, Atlanta Housing did not, leaving the project officially incomplete. At the time of the incident, the drainage system and upper part of the storm sewer were situated on Villa Monte property, while the lower portion, including the headwall and inlet pipe, was on Atlanta Housing property. Responsibility for maintaining the storm sewer was contested, with Atlanta Housing granting a construction easement to National Homes concurrently with the acquisition of the Villa Monte tract. Atlanta Housing did not issue a certificate of completion for the Villa Monte complex, implying that the easement remained active. Evidence indicated Atlanta Housing failed to maintain or regularly inspect the storm sewer, operating under the belief that maintenance was the responsibility of others due to the easement. Although construction of the storm sewer was complete, Atlanta Housing had no systematic inspection or maintenance plan for its properties. Following a tragic incident resulting in children's deaths, minimal maintenance actions were taken by Atlanta Housing, including cleaning debris from the inlet pipe after the fact. Villa Monte and G. M. employees were responsible for some upkeep, including cutting grass and cleaning the storm drain, primarily out of necessity to maintain a tidy appearance, without any contractual obligation to do so. Previous flooding incidents and a near-accident involving children suggested ongoing issues with the storm sewer's operation. A key aspect of the trial focused on whether an adequate grate was present at the inlet pipe, as a 1974 directive from various officials included plans for a specific headwall and inlet installation at the project’s boundary. A hazardous condition was identified at an inlet opening without protective closure, posing a risk to children in a nearby play area. National Homes agreed to address this issue promptly, but a protective grate was reportedly removed before August 29, 1979. Testimony indicated that management at Villa Monte and G. M had no recollection of a grate being in place since they began managing the complex in 1977. Following the tragic deaths of two children on August 29, 1979, G. M's president sought to install a grate, which was done at a cost of $92 after unsuccessful attempts to have Atlanta Housing remedy the situation. Expert testimony revealed that while grates are not typically used to prevent debris accumulation, they are intended to prevent individuals, particularly children, from falling into the inlet pipe. Legal allegations against Villa Monte Homes and G. M included defective design and construction of the storm sewer, failure to warn of associated dangers, and inadequate safety measures, particularly given the proximity of a children's playground. The court evaluated whether a verdict against these defendants was justified, noting that they were not responsible for the sewer's design or construction or the playground's location. Evidence established that these defendants were not negligent regarding allegations of design, construction, or the playground's placement, as those involved in construction were either not found liable or had obtained directed verdicts. Negligence claims hinge on establishing a duty owed by the defendant to the injured party, independent of ownership alone. Three theories of duty arise regarding the headwall/inlet pipe: (1) the duty of landowners and occupiers to maintain safe approaches; (2) the duty stemming from the right to control and utilize the land; and (3) the duty arising from a voluntary assumption of maintenance responsibilities. Evidence indicates that the headwall and inlet pipe are situated on Atlanta Housing's land, which is acknowledged by all parties. However, plaintiffs argue that Villa Monte and G. M. had sufficient control over the storm sewer to impose a duty on them. The term "control" is specifically defined in legal precedents, as illustrated in Scheer v. Cliatt, which focused on whether the defendant was the owner or occupier of a property where an injury occurred. The court highlighted that control involves factors such as maintenance and repair responsibilities and concluded that the determination of control is typically a factual question. The case emphasizes the duty of property owners or occupiers to ensure the safety of premises and adjacent areas. In Elmore of Embry Hills v. Porcher, the court defined "approaches" as sidewalks or other access areas directly adjacent to a property. Generally, property owners adjacent to public sidewalks are not liable for injuries from defects in those sidewalks unless they caused or created the defect, as municipalities are responsible for maintaining sidewalk safety. The concept of "control" involves a legal right or duty concerning an approach. Owners with a servitude benefiting them must maintain the affected sidewalk area and can be liable for injuries resulting from their negligence. Liability does not stem from ownership alone; it arises from negligent actions that contribute to a defect. Additionally, the duty to keep premises safe extends only to areas under the owner's control, not merely easements belonging to others. In cases where one party has actual and absolute control over a property, as seen in Daniel v. Ga. Power Co., liability can be affirmed for that party. The liability of a property owner depends on whether they had a duty related to control or superior right of possession over the property in question. Control refers to the right to possess or exercise dominion, rather than simply maintaining the property. A party is not liable for a dangerous condition on land unless it was negligent in creating or contributing to that condition. Case law, including Scheer v. Cliatt and Daniel v. Ga. Power Co., does not imply that control over land arises from mere presence or voluntary services without legal authority. For a duty to exist based on land control, there must be a legal right to dominion or exclusive control over the premises. The defendants are not liable to the plaintiffs merely for being adjacent landowners, as the headwall and inlet pipe did not serve as an approach to their property, and they had no responsibility for its maintenance. There was no evidence indicating that the defendants had any control over the land owned by Atlanta Housing or a contractual obligation to maintain the headwall and inlet pipe. Any yard work performed by the defendants was not based on control but rather on a misunderstanding of property ownership or a desire to maintain appearances. The subsequent installation of a grate on the inlet pipe did not establish control, as it was done out of moral responsibility, and there was no evidence that the defendants were authorized to perform that action prior to the incident. Even if there was negligence regarding the grate's absence, recovery is not warranted because the evidence indicated that the drownings would have occurred regardless of the grate's installation. An obstruction could form regardless of the grate, as shown by evidence of debris blocking the grate later, demonstrating that the absence of the grate was not the cause of the incident. Thus, if an injury would have occurred regardless of the defendants' alleged negligence, there is no basis for recovery. Actionable negligence requires three elements: the existence of a duty, a failure to exercise ordinary and reasonable care, and resulting injury that is causally linked to the negligence. In the context presented, the presence of a grate could have prevented someone from being swept into an inlet pipe but would not have prevented drowning if water accumulated to cover the pipe. The two defendants were determined to have no duty arising from land ownership or control, leading to the conclusion that their employees were acting merely as volunteers. The legal framework surrounding volunteers distinguishes between misfeasance (active misconduct) and nonfeasance (passive inaction). However, there is a trend toward imposing liability on volunteers regardless of this distinction, as articulated by Justice Felton. A volunteer who undertakes a task, even if gratuitously, must act with reasonable care and skill. Negligence can arise from either failing to perform an act that should be done or failing to perform an undertaken task properly. The Georgia Supreme Court has embraced the Restatement (Second) of Torts, which states that a person who voluntarily provides services that could protect a third party is liable for physical harm resulting from a failure to exercise reasonable care. Liability can arise if the failure increases the risk of harm, if there was an undertaking of a duty owed to a third party, or if harm results from reliance on the undertaking. The fundamental requirement for liability is the failure to exercise reasonable care. No direct evidence demonstrates negligent acts by the defendants or their employees; rather, the evidence suggests the work was performed with ordinary care. The only potential indication of negligence relates to a clogged inlet pipe, which provided minimal clearance. The existence of injury alone does not imply negligence, as it requires affirmative proof. In the absence of such proof, there is a presumption of proper duty performance and absence of negligence. The doctrine of res ipsa loquitur may apply, allowing negligence to be inferred when an event causing injury occurs under the defendant's control and is of a nature that typically does not happen without negligence. However, this doctrine necessitates that the defendant owned, operated, maintained, or controlled the damaging entity. The court has emphasized the need for a rational basis to determine that the defendant likely caused the accident, although the Supreme Court has not adopted this expanded test. In this case, the defendants neither owned nor controlled the land and their maintenance actions were voluntary. Therefore, mere performance of maintenance does not presume negligence due to a temporary condition. For res ipsa loquitur to apply, there must be clear indication of negligence specifically attributable to the defendant. Res ipsa loquitur should be cautiously applied and only in extreme circumstances, specifically when there is no intermediary cause for the injury, no clear testimony negating negligence, or no reasonable inference of negligence from the defendant. In the cited case, the doctrine was deemed inapplicable to the defendants, as there was no evidence of negligence—either overt or passive—on their part. The only possible negligence was linked to a clogged inlet pipe on another’s property. Although the defendants maintained the area around this pipe and occasionally cleaned it, this did not suffice to invoke res ipsa loquitur. Consequently, without proven negligence, the verdict against the defendants was not justified, leading to an error in denying their motions for judgments notwithstanding the verdict. As for Atlanta Housing, there was insufficient evidence to classify the two children as invitees; they were more likely licensees or trespassers. The distinction in status, particularly concerning children, has lessened due to the adoption of the Second Restatement of Torts, which outlines specific conditions under which a land possessor may be liable for injuries to trespassing children caused by artificial conditions on their property. These conditions include the possessor's knowledge of potential child trespassing, recognition of the risk posed by the condition, the children's inability to recognize the danger, a minimal burden to eliminate the risk, and a failure to take reasonable care to protect the children. In *Gregory v. Johnson*, 249 Ga. 151, 154 (289 SE2d 232), it is established that the standards applied to a child trespasser also apply to a child licensee. The court examined evidence from the trial, noting that Atlanta Housing owned the land with a headwall and inlet pipe that was obstructed by debris, significantly reducing the opening's capacity. This blockage caused water accumulation and flooding, as confirmed by a witness who indicated Atlanta Housing believed the drainage facility was the responsibility of Villa Monte. Atlanta Housing lacked a routine inspection or maintenance protocol for storm sewers and had not maintained the property aside from occasional grass cutting. Despite attempts by the president of G. M to prompt maintenance, there was no evidence of contractual agreements that transferred liability. Atlanta Housing, alongside Villa Monte and G. M, faced negligence claims related to their knowledge of a hazardous condition and failure to warn or take corrective action regarding the storm sewer. The primary causes of flooding identified were blockage in the pipe, poor design, or vis major, although the jury found negligence and did not need to consider vis major as a defense. An expert witness criticized the design of the open flume storm sewer, arguing it was unsuitable for a housing project due to the likelihood of debris accumulation, which could lead to flooding. A witness testified that on May 8, 1980, and January 5, 1982, there were obstructions, including rubbish, blocking the entrance to a 48-inch drain, which created a risk of flooding by forming a pond where non-swimmers could enter. The witness acknowledged that he had no issues with the storm sewer's capacity, no knowledge of overflow when the system was clear of debris, and was unaware of any code violations, although he had not calculated flow requirements. He believed that if flooding occurred, it was due to a blockage, potentially downstream from the inlet pipe. Maintenance was identified as a key factor in the system's safety regarding flooding. An expert witness for the defendant asserted that the sewer design was adequate for significant flooding events. It was noted that the main design flaw was the potential for obstruction by debris, a common issue in systems lacking proper maintenance. No inherent design defects were identified. The sewer was deemed capable of handling a 25-year flood, while the defendant's expert suggested it could manage a flood exceeding 50 years. For the sewer to be considered dangerous, two conditions must exist: an obstruction of the inlet pipe and sufficient water to cause flooding. The case's focus shifted to the cause of blockage, evaluated against five conditions from the Restatement (2d) of Torts. Conditions A, C, D, and E were satisfied, indicating Atlanta Housing had reason to know children might trespass, that youth might prevent them from recognizing danger, and that while closing off access might be costly, regular inspection and cleaning of the inlet were manageable. Condition B raised concerns that required further consideration. The interpretation of condition (b) in tort law distinguishes between "knows or should know" from the earlier Restatement (1st) of Torts and "know or has reason to know" from the Restatement (2d) of Torts. Atlanta Housing contends that "should know" implies constructive knowledge, while "has reason to know" indicates a lesser standard. According to the comment on condition (b) in the Restatement (2d), a possessor of land is not obliged to inspect their property for dangerous conditions but is liable only when they know or have reason to know such conditions exist. Counsel for Atlanta Housing asserts that "reason to know" means having information that a reasonable person would use to infer the existence of a dangerous condition. It is acknowledged that a duty arises if the landowner receives information suggesting danger to trespassing children. In 1974, Atlanta Housing was aware of a serious hazard posed by an inlet opening and had received complaints about its maintenance. Despite this knowledge, Atlanta Housing neglected to maintain the area and assumed others would manage it without justification. Their lack of awareness regarding flooding was due to their failure to take responsibility for property upkeep. The case highlights that for a jury to find "reason to know" of a hazardous condition, the elements of knowledge and duty must be present. However, negligence is actionable only if it is a direct cause of the damage incurred. The risk associated with the sewer was relevant only when it was obstructed, and a transient dangerous condition must have existed long enough for the defendant to have discovered and addressed it. Without evidence of the defect's prior existence, the appellant could not meet the burden of proof necessary for recovery. Defendants are not liable for a dangerous condition unless they were in close proximity and could have remedied it. In the referenced case, evidence showed that the area around an inlet pipe was cleared prior to an incident, but there was no proof of when the obstruction occurred. The plaintiffs had the burden to demonstrate that the obstructive condition existed long enough for the defendants to take action. Without establishing this timeframe, the defendants' lack of action would be deemed inconsequential. Consequently, the plaintiffs' failure to meet this burden meant a judgment in their favor was not sustainable. A new trial was ordered to achieve justice since the critical issue regarding the defendants' liability was not raised earlier. Additionally, the legal principle requiring a reasonable time for landowners to discover and address defects suggests that a volunteer cannot be held liable for conditions they were unaware of, particularly when they previously maintained the area without negligence. Furthermore, the trial judge’s refusal to give a requested jury charge regarding liability in rescue situations was noted as an error. The requested charge, based on established law, was relevant and should have been provided, as it accurately reflected the law concerning the defendant's potential negligence. The argument that the charge would mislead the jury into believing the defendant was not negligent ignores the possibility that the jury could find otherwise based on the evidence presented. Liability requires proof of fault, meaning the plaintiffs must demonstrate the defendant's negligence for recovery related to the drowning of two children. The court erred in refusing a request to instruct the jury on this principle. The excerpt discusses the legal definition of a "man trap" in the context of an open pond, clarifying that it does not automatically qualify as such. According to the newly adopted five-condition test from Gregory v. Johnson, liability hinges on the possessor's knowledge of the condition and its associated risks, particularly to children. The court's refusal to charge the jury on the instinctive recognition of deep water dangers by children was not erroneous, as the request was deemed argumentative and not factually relevant. Additionally, the instruction regarding the duty of care owed to licensees was incomplete. The requested clarification that the duty to warn pertains only to latent dangers—rather than open and obvious ones—was valid, but the court noted that the assessment of "latent danger" should consider the children's capacity to recognize risks. The judgment was reversed, ordering a new trial for one case and a judgment for the defendants in another.