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Zumbado v. Lincoln Property Co.
Citations: 433 S.E.2d 301; 209 Ga. App. 163; 93 Fulton County D. Rep. 2147; 1993 Ga. App. LEXIS 814; 1993 WL 325763Docket: A93A0469, A93A0613
Court: Court of Appeals of Georgia; June 2, 1993; Georgia; State Appellate Court
Zumbado appealed the summary judgment granted to Lincoln Property Company and Allstate Insurance Company, while Allstate cross-appealed the denial of its summary judgment motion. The Court of Appeals of Georgia, in its decision dated June 2, 1993, evaluated the evidence in favor of Zumbado. Lincoln constructed Woodland Apartments in 1983 and requested the City of Smyrna to investigate traffic flow at the complex’s entrance. In response, Smyrna installed a vehicle approaching signal device, funded by Lincoln, which was intended to alert drivers exiting the complex of oncoming traffic. However, Lincoln did not control the device's installation or maintenance, nor did it own the property where the device was located. On October 31, 1989, Zumbado, familiar with the intersection, relied on the signal device, which failed to flash as she exited the complex. As she turned left, her vehicle was struck by Everett, who was traveling from the left. The original complaint alleged Lincoln's failure to notify Zumbado of the device’s malfunction and included amendments citing negligent placement of the entrance and inadequate sightlines. The court ruled that Lincoln had no duty to the signal's users, as it did not control the public street and Zumbado had equal knowledge of the dangerous conditions. Regarding Allstate, the court found there were unresolved issues concerning Zumbado's lookout and Everett's speed at the time of the accident. Allstate's motion regarding the comparative fault of Zumbado and Everett cannot be resolved through summary adjudication based on the existing record. Evidence, including the speed limit of 40 or 45 mph and the length of skid marks from Everett's vehicle, suggests that his excessive speed may have contributed to the accident. Furthermore, there is a possibility that he could have avoided Zumbado by swerving right instead of left, indicating unresolved factual issues for a jury. Zumbado argues that the court erred in determining that Lincoln met its obligation to maintain safe approaches to the complex under OCGA § 51-3-1. The trial court correctly identified that the responsibility for traffic signal installation and maintenance lies with the City of Smyrna, as per OCGA § 32-6-50(c). It is illegal for entities other than those specified in OCGA § 32-6-50 to install traffic control devices, reinforcing Lincoln's lack of responsibility. Moreover, there was no evidence that Lincoln had control over the roadway that would impose a duty to warn of associated dangers. Under OCGA § 51-3-1, an occupier's duty on a public way is limited to exercising due care within their rights. Lincoln did not operate the road differently from the general public. Zumbado's awareness of the exit's conditions, including a 'blind spot' and approaching traffic, significantly contributed to the court's ruling. Her repeated use of the exit and knowledge of its dangers indicated that she knowingly chose to act against her own safety, leading to summary judgment in favor of Lincoln. The judgments have been affirmed.