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Ousley v. Board of Commissioners of Fulton County8/31/2000
to be entirely reliable, we understand the trial court's alternative treatment of the placement of the fencepost in its summary judgment rulings. The trial court was attempting to reach a fair result without necessarily deciding the position of the fencepost. However, from the totality of the evidence, it is unclear whether the fencepost is located in the right-of-way. The trier of fact's conclusions vis-a-vis the respective defendants necessarily depends upon where the fencepost is located.
Because there is a material issue of fact as to whether the fencepost is located within the right-of-way, we cannot determine whether it was foreseeable to Fulton County that motorists would leave the intersection and hit the fencepost located six and one-half feet from the edge of the pavement. Thus, we are unable to conclude as a matter of law that it is not foreseeable to the county that vehicles would strike the post.
With respect to Craig, we also cannot conclude that as a matter of law it was not foreseeable that motorists would leave the pavement and strike his corner fencepost. Ousley asserts that section 368 of the Restatement (Second) of Torts (1965) supports that it was foreseeable to Craig that her husband's automobile would hit Craig's fencepost. Section 368 provides that a landowner who places artificial conditions so near to a highway that he realizes or should realize that the condition creates an unreasonable risk may be liable for the harm caused by that condition.
However, before assessing whether the fencepost was dangerously designed, we would have to conclude that as a matter of law, it was foreseeable to Craig that vehicles would leave the intersection and hit his fencepost located six and one-half feet from the highway. Here, the evidence indicates that nothing about the intersection made it particularly dangerous. There is no history of accidents occurring at this intersection. However, the fencepost is located only six and one-half feet from the pavement. From this evidence, we cannot agree with the trial court that it was not foreseeable as a matter of law that motorists would strike the post.
Further, while there is evidence that this type of fencepost is used by others in the area, expert testimony also concluded that the fencepost was much stronger than it needed to be to support the fence. We also cannot conclude that as a matter of law Craig had a duty to remove his fencepost or design it differently.
The trier of fact must resolve these material issues of fact to determine whether Fulton County and Craig owed Ousley a duty of care. The judgment is reversed, and the matter is remanded for further proceedings not inconsistent with this opinion.
BAILEY, J., and VAIDIK, J., concur.
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