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Howard v. Gourmet Concepts Ntl.2/8/2000
EL 020-021
On November 17, 1995, Teresa G. Howard, plaintiff-appellant, received serious personal injuries when she attempted to turn left from Talton Drive into the south bound lane of Montreal Circle, where she was struck by Matthew Upchurch, driving a truck for Courier Express/Atlanta, Inc., and traveling north on Montreal Circle. In addition to Upchurch and Courier Express, Howard sued the owner of the property on Montreal Circle just south of Talton Drive, Gourmet Concepts International, Inc.; its landscaping service, Elias Garden Care, Inc. d/b/a Atlanta Scapes; and DeKalb County for maintaining a public nuisance. Howard contended that the trees, bushes, and grass on this property obstructed the view of the northbound lane of travel on Montreal Circle, so that neither driver could see the other around the curve in the road. Some of the obstruction existed on the right-of-way of DeKalb County. Although Howard could not see down the northbound lane because of the greenery, she pulled across this lane and into the south bound lane of Montreal Circle, where she was struck. The trial court granted summary judgment to Gourmet Concepts, Atlanta Scapes, and DeKalb County. The issues presented were: (a) did a nuisance exist; (b) did notice of a nuisance occur; (c) was the nuisance the proximate cause of plaintiff's injuries; and (d) could DeKalb County be liable in nuisance to her for personal injuries. Jury issues existed as to (a) and (b), and we answer (c) and (d) in the negative. Therefore, we affirm the trial court's grant of summery judgment.
Case No. A00A0450
1. Howard's first enumeration of error is that " he trial court erred by granting summary judgment to [Gourmet Concepts and Atlanta Scapes] by finding [Howard] did not meet her burden of proof to show the allegedly offending greenery on Gourmet Concept's property was unauthorized."
(a) OCGA § 32-6-51, prohibiting the maintenance of vision- obstruction objects on or adjacent to a road right-of-way, applies to planted trees, shrubbery, and vegetation as well as to signs, structures, or constructed objects. The maintenance of such obstruction is negligence when they create a traffic hazard and are unauthorized. However, if the statutory elements have not been met, then neither nuisance nor negligence arises under such Act. See United Refrig. Svcs., Inc. v. Emmer, 218 Ga. App. 865, 865-866 (1) (463 SE2d 535) (1995). To recover at trial, plaintiff must show that the objects on private property adjacent to the right of way were unauthorized."
tructures on private property adjoining road rights-of-way only become unlawful under OCGA § 32-6-51 if they obstruct a clear view of roads in such a manner as to constitute a traffic hazard, and they are unauthorized." (Citation and punctuation omitted; emphasis in the original.) Id. at 865. See also Williams v. Scruggs Co., 213 Ga. App. 470, 471-472 (1) (445 SE2d 287) (1994); Smith v. Hiawassee Hardware Co., 167 Ga. App. 70, 71-72 (1) (305 SE2d 805) (1983).
Also, Howard contends that the planting or growth extended onto the public right-of-way, which is growth from private property, obstructing motorists' views in violation of DeKalb County Code § 17-6 (a), which prohibits obstructions on the public right-of-way. Thus, a jury issue exists as to whether the vegetation constituted a traffic hazard and, depending upon the location, whether the obstruction was authorized or unauthorized. See Williams v. Scruggs Co., supra at 472; Smith v. Hiawassee Hardware Co., supra at 72..
There exists a jury issue as to whether or not the vegetation had grown sufficiently, either on private property, the right-of-way, or both, to create a visual
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