                             FIRST DIVISION
                              BARNES, P. J.,
                        MCMILLIAN and MERCIER, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   October 27, 2017




In the Court of Appeals of Georgia
 A17A0649. MAYOR AND ALDERMEN OF THE CITY OF
     SAVANNAH v. HERRERA et al.

      MCMILLIAN, Judge.

      Lisa Nicolle Muse suffered incapacitating injuries when the car she was driving

was struck as she was attempting to make a left hand turn at the intersection of White

Bluff Road and Lee Boulevard in Savannah, Georgia. Ann J. Herrera, as conservator

for Muse, and Gloria Fay Muse, as the guardian of Muse, (“Plaintiffs”) filed suit

against, inter alios, the Mayor and Aldermen of the City of Savannah (the “City”),1


      1
        At the time of the accident, the other driver, Officer Judd West, was employed
by Garden City, Georgia but was on loan to Chatham County under the terms of a
County-City agreement creating a task force related to drug enforcement activities.
Plaintiffs named Garden City and Chatham County as defendants but not West, and
in a previous appeal we found Garden City was entitled to summary judgment under
the borrowed servant rule. Garden City v. Herrera, 329 Ga. App. 756, 761 (1) (766
SE2d 150) (2014).
contending that the City acted negligently in locating the painted stop bar at the

intersection and acted negligently and created a nuisance by allowing the line of sight

of motorists entering the intersection to be obscured by two large trees, one of which

was located on the City’s right of way.2 The City moved for summary judgment,

contending that the negligence claims were barred by sovereign immunity; the acts

alleged did not rise to the level of nuisance; the City’s actions or inactions were not

the proximate cause of the accident; and the claims were barred by the doctrine of

avoidable consequences.3 The trial court granted the City’s motion as to Plaintiffs’

claim based on the allegedly negligent placement of the stop bar, but denied the

City’s motion to the extent Plaintiffs’ negligence and nuisance claims were based on

the obstruction in line of sight caused by the tree. The trial court included in its order

a certificate of immediate review, and the City sought interlocutory review from this

Court, which we granted.




      2
       The other tree was located on private property. Plaintiffs also sued that
landowner, but those claims were dismissed with prejudice.
      3
        The City also sought dismissal of Plaintiffs’ claim for punitive damages. The
trial court granted the City’s motion as to that claim, and Plaintiffs have not
challenged that ruling on appeal.

                                            2
      We first set out the circumstances surrounding the accident.4 Lee Boulevard is

a two lane public road that generally runs east to west, and White Bluff Road is a four

lane road with two northbound and two southbound lanes divided by a median. Lee

Boulevard and White Bluff Road intersect at several points, and the intersection

where the accident occurred is on the westerly end where access from Lee Boulevard

onto White Bluff Road is controlled by a stop sign at a three-way “T” intersection

(the “Intersection”). Drivers on Lee Boulevard attempting to access the southbound

lanes of White Bluff Road are required to stop at the stop sign, traverse the two

northbound lanes of White Bluff Road, and then turn left.

      Two large oak trees, one of which is on the City’s right of way, were situated

to the left of the driver along the side of the roadway at the Intersection. According

to several witnesses who had traveled through the Intersection, the line of sight of a

driver looking left toward the northbound lanes was obstructed by the oak trees

sitting at the edge of the roadway, although the degree of obstruction varied

depending on the vantage point of the driver traversing the Intersection such that the

      4
        As the nonmovant on summary judgment, the facts are construed in favor of
Plaintiffs. However, Plaintiffs bear the burden to establish a waiver of sovereign
immunity. Albertson v. City of Jesup, 312 Ga. App. 246, 248-49 & n.9 (718 SE2d 4)
(2011) (party seeking benefit of waiver has to establish waiver and thus trial court’s
subject matter jurisdiction).

                                          3
obstruction might be total or near total at some points but only partial at other points.

And, tests conducted at the scene by investigating officers using vehicles similar to

those involved in the accident demonstrated there were two blind spots along the

Intersection and that a car traveling from Lee Boulevard would have to “ease up” past

the stop bar and intrude into the right northbound lane of White Bluff Road in order

to have an unimpeded view. Further, evidence was also presented that drivers

traveling northbound on White Bluff Road had difficulty seeing cars stopped at the

Intersection because of the trees.

      At the time of the accident, Muse, who had approached the Intersection from

Lee Boulevard, was attempting to cross over the two northbound lanes of White Bluff

Road in order to turn left onto the southbound lanes. However, as she pulled into the

northbound lanes, her 2003 Honda Accord Coupe was struck on the driver’s side by

the 2001 Chevrolet Silverado pick-up truck driven by Officer West, who was

traveling northbound on White Bluff Road. The impact shoved the Accord onto the

center median north of the Intersection, up onto the curb, and into a utility pole on the

passenger side.5

      5
       The vehicles actually collided twice. There was the initial impact when West
hit Muse, which caused both vehicles to move to the left and collide again, at which
point Muse struck the pole.

                                           4
      Muse received an incapacitating brain injury as a result of the accident and has

never been able to provide an account of what happened. The accident was

extensively investigated, however, and police interviewed numerous other witnesses,

including West and his passenger, fellow officer Christopher Brian Boatright. West

told officers that he did not see Muse in the Intersection until moments before the

collision and that he attempted to stop, but that he could not avoid hitting her. Several

witnesses to the accident told police investigators that West appeared to be speeding,

and some witnesses said they observed him moving in and out of the right and left

lanes in order to maneuver around traffic;6 at least one witness opined to police that

Muse may not have seen West due to his speed and lane changes. Information

obtained from the air bag module indicated that at approximately one second before

deployment, West was traveling at 59 miles per hour; the posted speed limit was 40

miles per hour. And police concluded from the tire marks and angle of the vehicles

that West was moving from the right lane to the left at the time of the collision.




      6
        At the time of accident, Boatright told police West was traveling in the left
lane, but later testified he was traveling in the right lane.

                                           5
       Several witnesses, including Boatright in his initial statement to police,7 said

they observed Muse stop before entering the intersection, although witness accounts

differed concerning the precise point where she stopped, and one witness said it

appeared to her that Muse was looking for oncoming traffic, but she could not be

certain due to the distance. Based on the witnesses’ accounts, one investigating

officer concluded in his report that Muse stopped at the point where the roads

intersect, or just into White Bluff Road.

      Plaintiffs also presented the report and testimony from an accident

reconstructionist, who, based on his reconstruction of the accident and the conditions

at the Intersection, testified that in order to have a completely unobstructed view, a

driver had to “nose” past the stop bar into the northbound lane of traffic. He also

opined, based on his calculations of the pre-accident positions of the vehicles relative

to the point of impact, West’s vehicle was not visible to Muse as she began to cross

White Bluff Road, and that by the time she could see his vehicle it was too late to

avoid the accident, making a crash all but unavoidable. The expert also concluded




      7
       Boatright later told police and testified in his deposition that he never saw
Muse stop.

                                            6
that had the visual obstructions been removed, both Muse and West would have been

able to see each other in time to avoid the accident.8

      1. Sovereign Immunity. We turn first to the threshold issue of sovereign

immunity. City of Tybee Island v. Harrod, 337 Ga. App. 523, 524 (788 SE2d 122)

(2016) (sovereign immunity is not in the nature of an affirmative defense, going to

the merits of the cases, but instead raises the trial court’s subject matter jurisdiction

to try the case and should be decided at the outset); Albertson v. City of Jesup, 312

Ga. App. 246, 248 (1) (718 SE2d 4) (2011) (“sovereign immunity is a threshold issue

that the trial court was required to address before reaching the merits of any other

argument.”).

      Municipalities are protected by sovereign immunity pursuant to Article IX,

Section II, Paragraph IX9 of the Georgia Constitution unless that immunity is waived

by the General Assembly or by the terms of the Constitution itself. City of Atlanta v.

Mitcham, 296 Ga. 576, 577 (1) (769 SE2d 320) (2015); CSX Transp., Inc. v. City of

Garden City, 277 Ga. 248, 249 (1) (588 SE2d 688) (2003); City of Greenboro v.

      8
       As the trial court noted, even if the City’s request to exclude this evidence
was granted, other evidence in the record supports the same conclusions.
      9
       This provision provides: “The General Assembly may waive the immunity of
counties, municipalities, and school districts by law.”

                                           7
Rowland, 334 Ga. App. 148, 149 (1) (778 SE2d 409) (2015). That immunity is

reiterated in OCGA § 36-33-1 (a), which provides “it is the public policy of the State

of Georgia that there is no waiver of the sovereign immunity of municipal

corporations of the state and such municipal corporations shall be immune from

liability for damages. . . .” However, subsection (b) of that section carves out a narrow

waiver: “[m]unicipal corporations shall not be liable for failure to perform or for

errors in performing their legislative or judicial powers. For neglect to perform or

improper or unskillful performance of their ministerial duties, they shall be liable.”

Mitcham, 296 Ga. at 577 (1).

      For more than a century, “[t]his provision has . . . been interpreted to mean that

municipal corporations are immune from liability for acts taken in performance of a

governmental function but may be liable for the negligent performance of their

ministerial duties.” Mitcham, 296 Ga. at 577 (1). One such ministerial duty, which

also has been recognized for more than a century, is the duty of a municipality to

maintain city streets in a reasonably safe condition for travel.10 However, a city’s

      10
         See Mayor of Montezuma v. Wilson, 82 Ga. 206 (9 SE 17) (1888) (“A
municipal corporation cannot be held liable for damages occurring by reason of a
defect in its streets, sidewalks, sewers or bridges, when it has no notice thereof, or
when such defect has not existed for a sufficient length of time from which notice can
be inferred, provided the corporation has been guilty of no negligence in constructing

                                           8
liability in this regard is specifically limited by statute as set out in OCGA § 32-4-93

(a):

       A municipality is relieved of any and all liability resulting from or
       occasioned by defects in the public roads of its municipal street system
       when it has not been negligent in constructing or maintaining the same
       or when it has no actual notice thereof or when such defect has not
       existed for a sufficient length of time for notice thereof to be inferred.


Thus, “[s]tated positively, “municipalities generally have a ministerial duty to keep

their streets in repair, and they are liable for injuries resulting from defects after actual

notice, or after the defect has existed for a sufficient length of time for notice to be

inferred.” (Citation and punctuation omitted.) Roquemore, 274 Ga. App. at 423.




or repairing same.”); Mayor & Council of Dalton v. Wilson, 118 Ga. 100 (44 SE 830)
(1903) (setting out well established rule that a municipal corporation is bound to keep
its streets and sidewalks in a reasonably safe condition). See also Mayor and
Aldermen of Savannah v. Johns, 87 Ga. App. 719, 723 (75 SE2d 342) (1953) (“It
seems that the liability of a municipality for failure to keep its streets and sidewalks
in repair existed at common law, for Code § 69-303 [now OCGA § 32-4-93] was
taken from the decision of our Supreme Court in Mayor &c. of Montezuma v. Wilson,
82 Ga. 806 (9 SE 17)[.]”); Roquemore v. City of Forsyth, 274 Ga. App. 420, 422-23
(617 SE2d 644) (2005) (“it is well settled . . . that a municipal corporation is bound
to keep its streets and sidewalks in a reasonably safe condition for travel . . . , and if
it fails to do so, it is liable for damages for injuries sustained in consequence of such
failure.”) (citation and punctuation omitted.) See generally R. Perry Sentell Jr.,
Statutes of Nonstatutory Origin 14. Ga. L. Rev. 239, 256-57 (1980).

                                             9
      The question then turns on what constitutes a defect in the public roads under

OCGA § 32-4-93 (a), and in particular, whether objects adjacent to the road that

obstruct the view of travellers on the road are considered “defects in the public

roads.” As explained by this Court, “‘defects in its streets’ for which a municipal

corporation may be liable under the provision of this code section (and its

predecessor) have been held to include objects adjacent to, and suspended over, the

municipality’s streets and sidewalks, the presence of which renders the use of these

thoroughfares more hazardous. (Cits.)’ Richards v. Mayor &c. of Americus, 158 Ga.

App. 693, 694 (282 SE2d 122) (1981).” Kicklighter v. Savannah Transit Auth., 167

Ga. App. 528, 530 (2) (307 SE2d 47) (1983). Thus, in Kicklighter, we determined that

a jury must decide whether a power pole located six inches outside the curb line of

the street was a defect within the meaning of the statute rendering the City liable for

injuries received by the plaintiff after his arm, which was propped in an open bus

window, became wedged between the bus and the pole. Id. at 528.

      Our Supreme Court has likewise explained well over a hundred years ago, that

“[t]he municipality should not allow obstructions or excavations to adjoin the traveled

way which will render its use unsafe and dangerous. Cities are liable for negligently

permitting unguarded excavations near the line of the road or street, as well as for

                                          10
negligently allowing obstructions likely to cause injury to be placed upon or near the

line[.]” (Citation and punctuation omitted.) City Council of Augusta v. Tharpe, 113

Ga. 152, 155-56 (38 SE 389) (1901) (“[w]e are not able to say that a wire, . . .

stretched along the margin of a sidewalk, which is part of a public street, would not

be a dangerous obstruction[.])”; Hammock v. City Council of Augusta, 83 Ga. App.

217, 218-19 (63 SE2d 290) (1951) (rejecting City’s contention that defects include

only defects in the surface of a street or sidewalk and not defects on the side or above

it).

       Further, the City’s liability is not limited to manmade objects or obstructions,

but extends to “defects which are gradually brought about by the forces of nature”

such as tree limbs or vegetation alongside the road. Barnesville v. Sappington, 58 Ga.

App. 27, 28 (197 SE 342) (1938). See also Richards, 158 Ga. App. at 694 (involving

a tree limb extending over the street which broke off and crushed plaintiff’s

husband’s vehicle, killing him).

       Although the City acknowledges that a “defect” within the meaning of section

32-4-93 may include natural conditions that occur alongside or over a street, it argues

that this case is controlled by precedent in which we have specifically held that the

removal of vegetation which blocks a driver’s view of a traffic control device is a

                                          11
governmental, not ministerial, function for which there is no waiver of sovereign

immunity. See, e.g., Albertson v. City of Jesup, 312 Ga. App. 246, 249-50 (1) (718

SE2d 4) (2011). We disagree.

      As an initial matter, although it is true that this Court has held that the City is

immune from suit for claims arising from vehicular or pedestrian accidents that occur

as the result of vegetation blocking the view of a traffic control device, our analysis

in those cases focused on the fact that installing and maintaining traffic control

devices involves a governmental function. Also, we specifically distinguished

accidents resulting from obstructions to the view of oncoming traffic as opposed to

the view of the traffic control device itself, which sovereign immunity covers. See

Albertson, 312 Ga. App. at 249-50 (1) (“[B]ecause ‘it is the obstruction of the [stop-

sign], and not obstruction of the sight of oncoming traffic which [Plaintiff] contend(s)

caused [him] to advance and collide,’ sovereign immunity bars his recovery ‘for even

negligent exercise of this governmental function.’”); Cyr v. Savannah, 188 Ga. App.

261, 262 (372 SE2d 659) (1988) (Beasley, J., concurring specially) (same). See also

Roquemore, 274 Ga. App. at 422-23 (distinguishing ministerial duty to maintain

streets from governmental function of maintaining street lights); McKinley v. City of



                                          12
Cartersville, 232 Ga. App. 659, 660 (503 SE2d 559) (1998) (distinguishing

governmental function of installing stop signs at intersection).

      Further, we have previously recognized that visual obstructions may be a factor

in making a City’s street unreasonably hazardous. See Mayor and Aldermen of

Milledgeville v. Holloway, 32 Ga. App. 734, 735 (124 SE 802) (1924) (negligence

action against the City not subject to demurrer when City had lawfully erected

obstruction that was difficult to see due to a hill, forcing driver of car to veer into a

ditch when he drove around it). Accordingly, in line with this long established

precedent, we find that a jury must determine whether the tree located on the City’s

right of way obstructed the view of oncoming traffic such that it was a “defect” within

the meaning of OCGA § 32-4-93.11

      However, that does not end our analysis because the City is liable only if it had

notice of the defect.


      11
          Nor do we believe that our Supreme Court’s decision in Town of Fort
Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141) (1968) requires a different result.
Phillips involved a traffic light that blinked green in all directions, causing numerous
accidents. The Court held that the improper operation of the traffic light did not
constitute a “physical obstruction or defect in the street” under the predecessor to
OCGA § 32-4-93. Id. at 837. The Court did not consider or address the issue of
whether a driver on the road with an obstructed view of oncoming traffic may
maintain an action under OCGA § 32-4-93.

                                           13
      Constructive notice of a defect may be imputed through the knowledge
      of the city’s employees or agents, or may be shown by testimony as to
      how long the defect existed prior to the injury, objective evidence that
      the defect existed over time, or evidence that others were injured as a
      result of the same condition over a period of years. . . . The question of
      constructive notice ordinarily is for the jury, except in the absence of
      any evidence of constructive notice that could create a fact question, and
      in such an instance, the issue of negligence is a matter of law. . . .
      Further, the length of time a defect must exist in order for an inference
      of notice to arise is ordinarily a jury question.


Clark v. City of Atlanta, 322 Ga. App. 151, 153 (744 SE2d 122) (2013).

      Here, the record shows that the Director of Savannah’s Traffic Department,

Mark Weiner, visited the Intersection in 1998 to address another problem and noted

that “several trees on the east side of White Bluff just south of Lee Boulevard”

impaired driver “visibility on Lee Boulevard entering White Bluff Road.” Weiner

reported this finding and made a recommendation to remove the trees to the then-

Director of Savannah’s Public Works, but the trees were not removed at that time. In

2007, three years before Muse’s accident, Nicholas Weaver was also hit at the

Intersection while attempting to turn onto White Bluff Road after stopping at the stop

sign on Lee Boulevard. The police report prepared following the 2007 accident

contained a notation that Weaver’s vision was obscured by trees, and Weaver testified

                                          14
that the trees made it very difficult to see at the Intersection, and at least partially

blocked his vision of the oncoming traffic and the vehicle that hit him. And in

December 2009, about seven months prior to Muse’s accident, an anonymous caller

notified the City that the two trees, along with other vegetation, were obstructing the

view for drivers attempting to go south onto White Bluff Road.

      Although the City argues this evidence was insufficient to provide the requisite

notice to the City because only one accident specifically attributed to the defect had

occurred at the Intersection, we find sufficient evidence for a jury to determine

whether the City had actual or constructive notice that the tree was obstructing the

view of motorists traveling through the Intersection. E.g., City of Fitzgerald v.

Caruthers, 332 Ga. App. 731, 734 (774 SE2d 777) (2015) (physical precedent only)

(city’s admission that it did not document every complaint about hazardous trees and

evidence that the tree was visibly decaying was sufficient to create jury issue on

knowledge); Kicklighter, 167 Ga. App. at 530-31 (2) (evidence that the pole had been

in place for 24 years and bore scrape marks from passing vehicles sufficient to raise

a fact question of implied notice); cf. Carter v. Georgia Power Co., 204 Ga. App. 77

(418 SE2d 379) (city did not have notice that tree limb that fell was rotted when the

limb appeared normal and there had been no record of any complaint or report about

                                          15
the tree). Accordingly, Plaintiffs’ negligence and nuisance12 claims are not barred by

sovereign immunity.

      2. Proximate Cause. The City also contends that the trial court erred by

denying its motion for summary judgment because Plaintiffs cannot establish that the

obstruction in sight caused by the tree was a proximate or concurring cause of the

accident, arguing that the evidence shows that the accident was wholly attributable

to West’s speeding and Muse’s failure to yield.13

      12
         The City has not asserted sovereign immunity bars the nuisance claim, and
citing City of Thomasville v. Shank, 263 Ga. 624 (437 SE2d 306) (1993), the trial
court made a threshold determination in its summary judgment order that the nuisance
claim was not barred. Although we question the application of Shank to this case, we
need not parse this issue since any waiver created by OCGA § 32-4-93 would also
apply to the nuisance claim. See Ga. Dept. of Natural Resources v. Center for a
Sustainable Coast, Inc., 294 Ga. 593, 596 (2) (755 SE2d 184) (2014) (explaining that
Shank is premised on the takings clause of our Constitution); Rowland, 334 Ga. App.
at 149 (1) (same); Howard v. Gourmet Concepts Intl., Inc. v. Dekalb County, 242 Ga.
App. 521 (529 SE2d 406) (2000) (trial court properly granted summary judgment to
County for an alleged nuisance causing personal injury because such injury does not
constitute personal property that can be taken for purposes of inverse condemnation).
But see Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 837-38 (165 SE2d 141)
(1968) (plaintiff could maintain nuisance claim based on malfunctioning traffic signal
without regard to whether it involved a governmental or ministerial function).
      13
         The City argues that, as to proximate cause, this case is indistinguishable
from and controlled by Howard v. Gourmet Concepts Intl., Inc., 242 Ga. App. 521,
523 (1) (c) (529 SE2d 406) (2000), in which we found that even assuming the
vegetation abutting the road obstructed the driver’s view to some extent, the evidence
showed that the other driver’s excessive speed, failure to maintain control, failure to

                                          16
      “With respect to proximate cause, Georgia law is clear that (t)he proximate

cause of an injury may be two separate and distinct acts of negligence acting

concurrently(,) and the person injured may recover from either or both of the persons

responsible. The mere fact that the plaintiff’s injuries would not have been sustained

had only one of the acts of negligence occurred will not of itself operate to limit the

other act as constituting the proximate cause.”Hayes v. Crawford, 317 Ga. App. 75,

78 (730 SE2d 26) (2012). “[T]o establish proximate cause, a plaintiff must show a

legally attributable causal connection between the defendant’s conduct and the

alleged injury. Conversely, no matter how negligent a party may be, if his act stands

in no causal relation to the injury it is not actionable.” (Citations and punctuation

omitted.) Riggins v. City of St. Marys, 264 Ga. App. 95, 98 (1) (a) (589 SE2d 691)

(2003).

      Although there are conflicts and contradictions in the evidence presented in

this case, it appears established beyond dispute that the tree on the City’s right of way

created a partial or total obstruction for drivers attempting to navigate this

maintain a proper lookout and driving over the center of the road into the wrong lane
was the sole proximate cause of accident in which the plaintiff suffered serious injury.
However, not only is Howard factually distinguishable, it is legally inapposite
because that case concerned a suit against a county, not a city, and involved a
different statute, OCGA § 32-6-51 rather than OCGA § 32-4-93.

                                           17
Intersection, although the extent of the obstruction and the extent of the danger

created by the obstruction is disputed and are issues that must be resolved by the jury.

Further, viewing the evidence in favor of Muse, as the nonmovant, there exists at

least some evidence that Muse stopped at some point at the Intersection before

proceeding, although it is unclear exactly where she stopped. The City argues that

because there is no evidence that Muse stopped and looked before turning, it is

entitled to summary judgment. But an eyewitness or testimony from Muse on this

point is not required here when numerous witnesses testified that Muse came to a stop

before turning. A reasonable inference from this evidence is that Muse stopped to

look at traffic for her safety. Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d

779) (2010) (“In our de novo review of the grant of a motion for summary judgment,

we must view the evidence, and all reasonable inferences drawn therefrom, in the

light most favorable to the nonmovant.”) (citation and punctuation omitted.) Compare

Bacon v Mayor & Aldermen of the City of Savannah, 241 Ga. App. 211 (525 SE2d

115) (1999) (obstruction was not proximate cause where child ran into street without

stopping or looking); City Council of Augusta v. Booker, 229 Ga. App. 566, 567 (1)

(494 SE2d 374) (1985) (physical precedent only) (weeds that may have obscured

view of oncoming traffic condition was not proximate cause of wreck when child

                                          18
admitted he did not stop and look before riding his bike into the street where he was

hit by a car).

       Additionally, although West’s speed and frequent lane changes may have

contributed to the accident, a jury could conclude that the fact that Muse’s view of

West’s truck and West’s view of Muse’s vehicle may have been partially or wholly

obstructed by the tree such that neither driver was able to see the other until it was too

late also contributed to the accident. Accordingly, although it is possible in this case

that a jury could determine that a number of factors contributed to the accident, we

cannot eliminate as a matter of law the obstruction in line of sight caused by the tree

as a proximate or concurring cause of the accident, and thus, summary judgment was

properly denied. Riggins, 264 Ga. App. at 99 (1) (a).

       3. Avoidable Consequences. The City also contends that Muse’s claims are

barred by the doctrine of avoidable consequences because having previously driven

through the Intersection, Muse knew about the obstructed view and also knew that

she could have avoided the Intersection entirely by taking a different route through

an intersection on the easterly end of Lee Boulevard, which was controlled by a

traffic light.



                                           19
      The doctrine of avoidable consequences is set out in OCGA § 51-11-7, which

provides:

      If the plaintiff by ordinary care could have avoided the consequences to
      himself caused by the defendant’s negligence, he is not entitled to
      recover. In other cases the defendant is not relieved, although the
      plaintiff may in some way have contributed to the injury sustained.


“In general, ordinary diligence is that degree of care which is exercised by ordinarily

prudent persons under the same or similar circumstances.” OCGA § 51-1-2. As with

proximate cause, the question of whether the plaintiff exercised due care for her

safety is ordinarily reserved for the jury, except in those cases where plaintiff’s

knowledge of the risk and lack of due care is clear and palpable. Reed v. Carolina

Cas. Ins. Co., 327 Ga. App. 130, 136 (762 SE2d 90) (2014); Desai v. Silver Dollar

City, Inc., 229 Ga. App. 160, 166 (5) (493 SE2d 540) (1997).

      Here, Muse had regularly traveled through the Intersection for a number of

years and, based on the overwhelming evidence that the trees caused at least some

obstruction, would have been aware of the difficulty of seeing oncoming traffic. It is

also undisputed that Muse used the other intersection about half the time. However,

the evidence is conflicting as to the degree of obstruction caused by the tree,

particularly in combination with a driver who was speeding and changing lanes at the

                                          20
same time. Cf. Weston v. Dun Transp. & Stringer, Inc., 304 Ga. App. 84, 88 (1) (695

SE2d 279) (2010) (plaintiff’s decedent was aware that her view of oncoming traffic

was completely obstructed, yet she entered the intersection); Zumbado v. Lincoln

Property Co., 209 Ga. App. 163 (433 SE2d 301) (1993) (summary judgment for

defendant in premises liability action where plaintiff had equal knowledge of the

dangerous condition posed by the exit but chose to use it instead of an alternative).

Thus, genuine issues of material fact exist as to whether Muse by ordinary care could

have avoided the consequences caused by the City’s alleged negligence, and the trial

court properly denied summary judgment on this ground.14

      4. Nuisance. A public nuisance is defined in OCGA § 41-1-2 as “one which

damages all persons who come within the sphere of its operation, though it may vary

in its effects on individuals.” Thus, “a public nuisance requires some act or omission

which obstructs or causes inconvenience to the public in the exercise of rights

common to all.” (Citation and punctuation omitted.) City of College Park v. 2600

Camp Creek, LLC, 293 Ga. App. 207, 209 (666 SE2d 607) (2008).

      14
          Under the circumstances of this case, we decline to hold as a matter of law
that the doctrine of avoidable consequences bars a plaintiff’s claim when plaintiff had
knowledge of a dangerous intersection but chooses not to use an alternative route and
genuine issues of fact exist as to whether plaintiff otherwise exercised due care in
traversing the intersection.

                                          21
      The Supreme Court has set out three guidelines to define a nuisance for
      which a city may be held liable. First, the defect or degree of
      misfeasance must be to such a degree as would exceed the concept of
      mere negligence. Second, the act must be of some duration, and the
      maintenance of the act or defect must be continuous or regularly
      repetitious. Third, the city must have failed to act within a reasonable
      time after knowledge of the defect or dangerous condition.


Thompson v. City of Fitzgerald, 248 Ga. App. 725, 727 (2) (548 SE2d 368) (2001);

City of Bowman v. Gunnells, 243 Ga. 809 (2) (256 SE2d 782) (1979).

      The City argues that its tree on the right of way does not rise to the level of a

nuisance because the degree of misfeasance did not exceed mere negligence and

because there had been only one prior accident at the Intersection in which it was

documented that the tree may have been a contributing factor. As discussed in

Division 1, the City had the necessary notice of the obstruction in the line of sight

caused by the tree as City records for over a decade before the accident had

referenced the obstructed view. And a City worker sent to observe traffic at the

Intersection after the accident documented a number of “near misses” during the short

one half hour period she monitored the Intersection. In sum, although the City may

continue to assert that no nuisance existed because there is only one prior documented

accident at the Intersection due to the obstruction, genuine issues of material fact

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exist as to whether the tree constituted a nuisance, which must be resolved by a jury.

E.g., Kicklighter, 167 Ga. App. at 531-32 (3); Riggins, 264 Ga. App. at 99 (1) (b).

      Judgment affirmed. Barnes, P. J., and Mercier, J., concur.




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