The City of Valdosta is lucky nobody fell into that open manhole it says is part of manhole rehabilitation. That manhole is next to the Azalea Trail where whole families with small children walk, and on Valdosta State University property next to the VSU Recreation Center.

Manhole dug down

Mario Cattabiani, RossFellerCasey, 20 March 2014, $85 Million Verdict For Student Who Fell Into Open Manhole,

Founding partner Matt Casey argued in court that defendant Trigen-Philadelphia Energy Corp. failed to properly secure the manhole, which had been removed by a homeless man shortly before Gustafsson happened by that fateful day. The trial lasted three weeks, featured thousands of documents and a closing scene that played out as if written in a Hollywood script. As the jury was set to return a verdict, at literally the last minute, the insurer offered to settle the case for $10 million—a sum Casey, in consultation with his client, rejected. Just moments later, the jury awarded the former promising medical student $85 million.

McAleer Law Firm, 21 April 2020, A Plaintiff’s Evidentiary Burden in Georgia Personal Injury Lawsuits against the Government

Recently, a state appellate court issued an opinion in an appeal from a judgment in favor of a plaintiff in her lawsuit against the City of Atlanta. The woman filed a lawsuit to recover for damages she incurred after driving into an open manhole. The woman contended that the government should be liable for her injuries because the manhole was a public nuisance. The city appealed a jury finding in favor of the woman, arguing that the woman did not meet her evidentiary burden.

Under Georgia law, a municipality “may be held liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or municipal function.” To recover for damages plaintiffs must present evidence that:

1. The severity of the defect is a result of conduct that exceeds mere negligence;
2. The conduct or condition was long-lasting and continuous or repetitive; and
3. The government entity failed to act within a reasonable amount of time after becoming aware of the dangerous condition.

In most situations, a fact-finder must determine whether the plaintiff meets their evidentiary burden; however, in some cases, it is a question of law. Courts may grant a party a motion for a directed verdict in instances where there is no conflict regarding any genuine issue of material fact.

In this case, during the trial, the plaintiff presented photographic evidence that illustrated the deteriorating condition of the manhole. The municipality argued that they do not regularly inspect manholes unless someone reports an issue with them. Here, the city checked the manhole about seven years before the incident and but claimed they had no other reports of its condition.

The court found that the photograph of the deteriorating condition of the manhole was taken a year after the incident, and there is no evidence establishing the manhole’s unsafe condition at the time of the accident. In response, the plaintiff argued that a jury could presume the manhole’s condition because the city only inspects these defects if there is a complaint. However, the court reasoned that the spoliation presumption only applies in exceptional cases involving bad faith. Moreover, the court found that even if they assumed the defect was the open manhole itself, the plaintiff still failed to demonstrate that the condition was open and continuous or that the city had knowledge of its deteriorating state. Ultimately, the court reversed the trial court’s ruling and found in favor of the defendant.

The City of Atlanta won in the end on that case.

The City of Valdosta now knows there is a dangerous condition on the Azalea Trail. The next day the manhole cover was still open. Has it been closed?

What other manholes has that contractor for the City of Valdosta left open for “venting”?

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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