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CITY COUNCIL v. BOOKER11/26/1997
Pursuant to the grant of an interlocutory appeal, the City Council of Augusta, Georgia, appeals the trial court's order denying its motion for summary judgment in this personal injury action brought by Lolita Patrice Booker, as next friend of Robert Rouse, a minor, and in her own capacity as parent of the child.
Robert Rouse, a five-year-old child, was seriously injured while riding his bicycle after he darted through an intersection and was struck by a motorist who had the right of way. Robert passed through the intersection on many occasions before the accident and knew that it was controlled by a two-way stop and that he was supposed to stop and look both ways for oncoming traffic before proceeding through the intersection. Photographs of the intersection show that it involved a side street and a busy thoroughfare.
On the day of the injury, Robert was aware of the stop sign and knew what it meant. For whatever reason, however, he disregarded the stop sign. He testified at his deposition that he sped through the intersection because he heard his mother calling him and knew that if he was caught playing where he was not allowed to play, he would be in trouble. This deposition testimony was corroborated in every material respect by the deposition of his older sister, who was riding with him when the accident occurred. She testified that she called for Robert to stop, but he said, "shut up," and offered to race her home.
Robert's deposition testimony, however, is contradicted by an
earlier affidavit which stated he was not aware of the stop sign on the date of his injury and that he was only made aware of the stop sign by his mother at a later time. His affidavit further stated that he would have stopped at the stop sign had he known one was there.
Appellees' claim is based on nuisance; they contend Robert did not stop because he either did not see the stop sign at the intersection as it was partially obstructed by a power pole or did not see the oncoming car because his view of the intersecting street was obscured by tall grass on an overgrown lot. Thus, appellees contend the maintenance of either condition constitutes a nuisance and that the nuisance contributed to the cause of the accident.
The City moved for summary judgment contending that Robert's deposition showed the City's actions were not the proximate cause of the accident. After the motion was denied, permission to file this appeal was granted. The City contends the trial court erred by not finding that it did not maintain a nuisance, as a matter of law, and by not finding, as a matter of law, that the alleged nuisance was not the proximate cause of Robert's accident. Held:
1. The standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474).
In this case the City's motion relied upon the deposition testimony from Robert and his sister that Robert was aware of the stop sign yet chose to cross the intersection without stopping. Pretermitting whether the stop sign were partially blocked or the weeds were too high and whether either event could have constituted a nuisance is the fact that Robert was aware of the stop sign and chose to ignore it. That is sufficient to demonstrate that the placement of the pole or the condition of the lot were not the proximate cause of Robert's accident. Butler v. Huckabee, 209 Ga. App. 761, 762-763 (434 S.E.2d 576); Cummings v. Grubb, 184 Ga. App. 872, 874-875 (363 S.E.2d 167). Nevertheless, we do not rely on any contributory negligence on Robert's part. See Clanton v. Gwinnett County School Dist., 219 Ga. App. 343, (464 S.E.2d 918); Trotter v. Ashbaugh, 156 Ga.
Page 1 2 Georgia Personal Injury Attorneys
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