(Footnote omitted; emphasis in original.) Heller v. City of Atlanta, 290 Ga.App. 345, 350(2), 659 S.E.2d 617 (2008), aff'd Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 268(3), 674 S.E.2d 914 (2009) (outlining three elements of nuisance cause of action: degree of misfeasance exceeds mere negligence; act is of some duration and is continuous or regularly repetitious; municipality fails to act within reasonable time after knowledge of dangerous condition). Whether a nuisance exists is generally a fact question, but “under some factual situations it can be held as a matter of law that no nuisance exists.”
(Footnote omitted; emphasis in original.) Heller v. City of Atlanta, 290 Ga. App. 345, 350 (2) (659 SE2d 617) (2008), aff'd Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 268 (3) (674 SE2d 914) (2009) (outlining three elements of nuisance cause of action: degree of misfeasance exceeds mere negligence; act is of some duration and is continuous or regularly repetitious; municipality fails to act within reasonable time after knowledge of dangerous condition). Whether a nuisance exists is generally a fact question, but "under some factual situations it can be held as a matter of law that no nuisance exists."
DECIDED MARCH 23, 2009. Certiorari to the Court of Appeals of Georgia — 290 Ga. App. 345. Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Robert C. Edwards, Assistant Attorney General, for Department of Transportation.
Id. at 851, 470 S.E.2d 479. In Heller v. City of Atlanta, 290 Ga.App. 345, 659 S.E.2d 617 (2008), by contrast, we held that the city was not entitled to immunity for the negligent failure of its public taxicab inspector to ascertain that a taxicab had insufficient tire tread. The inspection was ministerial, rather than discretionary, because state law provided that the major grooves of a tire must have a tread depth of at least 2/32 inch.
Happoldt v. Kutscher, 256 Ga.App. at 98(1), 567 S.E.2d 380. And even though Willis acknowledged in his deposition that certain minimum standards exist for construction sites, without admissible evidence of the applicable rules, we cannot determine whether the standards were so clear, definite and certain as to merely require the execution of a simple task. This case is distinguishable, therefore, from Heller v. City of Atlanta, 290 Ga.App. 345, 659 S.E.2d 617 (2008) upon which the Howells rely. In that case, the defendant, a city Vehicle for Hire Inspector, had purported to conduct an inspection on a taxi that subsequently spun out of control due to tires with little or no tread, resulting in the plaintiff's death.
The municipality must either have knowledge or be chargeable with notice of the dangerous condition[.] (Citations, punctuation, and emphasis omitted.) Kicklighter, 167 Ga. App. at 531 (3), 307 S.E.2d 47; see also City of Alpharetta v. Vlass, 360 Ga. App. 432, 435-436 (1), 861 S.E.2d 249 (2021); Heller v. City of Atlanta, 290 Ga. App. 345, 350 (2), 659 S.E.2d 617 (2008); OCGA § 41-1-1 ("A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance.").The Changs contend that the City has waived any argument that the planter constituted a private nuisance (as opposed to a public one) because it did not raise the argument in its motion for directed verdict.
Id. at 851. In Heller v. City of Atlanta, 290 Ga. App. 345 (659 SE2d 617) (2008), by contrast, we held that the city was not entitled to immunity for the negligent failure of its public taxicab inspector to ascertain that a taxicab had insufficient tire tread. The inspection was ministerial, rather than discretionary, because state law provided that the major grooves of a tire must have a tread depth of at least 2/32 inch.
This determination is made on a case-by-case basis. (Punctuation and footnotes omitted.) Heller v. City of Atlanta, 290 Ga. App. 345, 347-348 (1) ( 659 SE2d 617) (2008).
(Footnote omitted.) Heller v. City of Atlanta, 290 Ga. App. 345, 346 ( 659 SE2d 617) (2008), aff'd, Ga. Dept. of Transp. v. Heller, 285 Ga. 262 ( 674 SE2d 914) (2009). "In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case."
(Footnote omitted.) Heller v. City of Atlanta, 290 Ga. App. 345, 346 ( 659 SE2d 617) (2008). So viewed, the record shows that in the late summer of 2003, McKissick was employed as a project estimator with Allgood Electrical Company, Inc. ("Allgood"). Allgood was hired as an electrical subcontractor by SOA, which was the general contractor for the construction of the Perry High School Multi-Purpose Facility (the "Project"). During the fall of that year, Allgood left the Project due to a dispute over payment with SOA and Aydelott. McKissick averred that he worked out an agreement with Aydelott to complete the electrical work on the Project for which he would be paid $1,000 weekly plus the cost of materials.