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City Settles Suit with Injured Bike Rider

A lawsuit filed against the City for a breach of its duty to properly maintain a sidewalk has resolved for $300,000. In a one-person bike wreck, the plaintiff lost control of her bike due to an uneven portion of sidewalk which was allegedly not properly maintained by the City. The crash resulted in a broken hip and wrist and also aggravated an earlier back problem, all of which caused pain, suffering and lost wages. At the time of the accident, there was a lift of about 2 inches on one of the sections of sidewalk beneath a viaduct which the plaintiff hit while riding her bike and went over and suffered significant injuries. The uneven portion of sidewalk which allegedly led to the crash has since been repaired.

With few exceptions, cities such as the City of Atlanta are not liable under the traditional theory of negligence for defects in roads and sidewalks. However, a static defect, such as an uneven section of sidewalk can be deemed to be a nuisance.

O.C.G.A. § 41-1-1 defines a nuisance as “anything that causes hurt, inconvenience, or damage to another and the fact that the act done may be otherwise lawful shall not keep it from being a nuisance. Lawful acts become nuisances when they are conducted in a manner causing hurt, inconvenience, or damage to another.

Georgia courts have considered several factors in determining whether a nuisance exists. Specifically,

(1) The defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence and a single isolated act of negligence is not sufficient to show such a negligent trespass as would constitute a nuisance;

(2) The act must be of some duration and the maintenance of the act or defect must be continuous or regularly repeated; and

(3) Failure of  the defendant to act within a reasonable time after knowledge of the defect or dangerous condition.

Municipalities are liable for nuisances under certain circumstances. A municipality like any other individual or private corporation may be liable for damages it causes from the operation or maintenance of a nuisance, irrespective of whether it is exercising a government or ministerial function. The policy underlying this exception to sovereign immunity is based on the principle that a municipal corporation can not, under the guise of performing a governmental function, create a nuisance dangerous to life and health or take or damage private property for public purpose, without just and adequate compensation being first paid.

Georgia courts look at the following factors to establish a nuisance: the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous and regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition. In other words, in order to recover under a nuisance theory against a city or other municipality, the City must have known of the danger and failed to take action to correct it. This notice requirement can be satisfied by actual or constructive notice, and in some cases constructive notice can be established by the sheer amount of time the unsafe condition has existed. In addition, when municipalities approve development projects which create a nuisance, the city may be responsible for approving such projects. For example, where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing nuisance is established, for which the municipality may be liable.

Attorney Robert J. Fleming has been handling wrongful death cases, pedestrian accident personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been injured or died as a result of the carelessness or negligence of another for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.