More Lawyers Than Tree Trimers Working on Trees

The City now has 3 law firms, 7 lawyer + assorted associate and legal staff working on the City’s case.

Clay Davis and I are flattered.

Sadly soon they will have more lawyers than tree trimmers working on trees.

And Shanta Greene has no justice.

Justice delayed is Justice denied.

Shanta Greene vs The City of Savannah

IN THE STATE COURT OF CHATHAM COUNTY
STATE OF GEORGIA
Shanta Greene, Louis Anderson, and )
Xavier Anderson, a minor, by and through )
his next friend and natural guardian, )
Louis Anderson, )
Plaintiffs, ) Civil Action File No.: STCV1200532
v. )
)
The Mayor and Aldermen of )
The City of Savannah, )
Defendant. )

PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION FOR NEW TRIAL COMES NOW, PLAINTIFFS SHANTA GREENE, LOUIS ANDERSON, and XAVIER ANDERSON, A MINOR, BY AND THROUGH HIS NEXT FRIEND AND NATURAL GUARDIAN, LOUIS ANDERSON, Plaintiffs in the above styled action, by and through their attorneys of record, and files this Response in opposition to Defendant The Mayor and Aldermen of the City of Savannah’s (hereinafter referred to as either “the City” or “Defendant”), Motion for New Trial and request that said Motion be DENIED as follows:

(1) The verdict is pursuant to the law. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(2) The verdict is not contrary to the evidence. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(3) The verdict is not contrary to the weight of the evidence. Further, the Defendant failed to move for directed verdict at trial and has waived the right to move for new trial based on the weight of the evidence. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(4) The Court did not err in denying the City’s Motion in Limine Number 5, regarding “The City of Savannah Park and Tree Department Master Tree Plan” (hereinafter “The Master Tree Plan”) as said plan was relevant pursuant to O.C.G.A. §24-4-401, and was not unduly prejudicial pursuant to O.C.G.A. §24-4-403. The City of Savannah’s Master Tree Plan was developed by Park and Tree officials during the first five years of Don Gardner’s tenure (1983 – 1988) as City of Savannah Park and Tree Director. Park and Tree Department supervisors, arborists, foresters and workers were involved in the inventory of trees and the development of preventative maintenance guidelines that were utilized by the City for twelve years (1988-2000).

The City’s hearsay objections regarding The Master Tree Plan were not timely raised pursuant to the deadlines set forth in the Pretrial Order. Furthermore, the City’s untimely arguments based upon hearsay have no merit. The City of Savannah’s Master Tree Plan may be admitted into evidence under at least three exceptions to the hearsay rule. The Master Tree Plan is admissible under O.C.G.A. §24-8-803 (16), Statements in ancient documents; O.C.G.A. § 803 (8) (C), Public records and reports; and O.C.G.A. §24-8-801 (d) (2) (D), Admissions by a party opponent, including that party’s agent or employee.

For a further response on this issue, see, Plaintiffs’ Reply To Defendant’s Motion For Reconsideration Of Its Motion In Limine On Any Reference To Or Evidence, Testimony Or Argument Concerning The Document Entitled The “City Of Savannah Master Tree Plan”, which was previously submitted to this Court. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(5) The Court did not err in denying the City’s Motion in Limine Number 9, regarding the City of Savannah’s excavation and installation of the sidewalk built in 2008, through the subject tree’s critical root zone. There was ample evidence in the record, including but not limited to the testimony of a number of witnesses, including former City arborist and Park and Tree Department Superintendent, Ronald Kevin Brown, both in his discovery deposition and at trial, regarding the damage the sidewalk excavation and installation caused to the subject tree, regarding how this damage caused or contributed to the decline of the subject tree, and how the damage to the tree contributed to the limb failure on July 2, 2010. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(6) The Court did not err in denying the City’s Motion in Limine Number 10, regarding whether the City of Savannah utilized bridging when the sidewalk adjacent to the subject tree was installed in 2008. There was ample evidence in the record, both during discovery and at trial, regarding the damage the sidewalk excavation and installation in its critical root zone caused to the subject tree, how this damage caused or contributed to the decline of the subject tree and contributed to the limb failure on July 2, 2010. Furthermore, there was evidence in the record, including photographic evidence and testimony, that the sidewalk had not been bridged. Moreover, the Defendant opened the door on this issue when the Defendant called Raymond Bailey, during the Plaintiffs’ case, and he testified regarding the issue of bridging on the sidewalk. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(7) The Court did not err in denying the City’s Motion in Limine Number 11. The City has a ministerial duty, pursuant to O.C.G.A. § 32-4-93, to maintain its streets and rights of way. Maintaining streets and rights of way is not a discretionary function. Pursuant to O.C.G.A. §36-33-1(b), the City is not entitled to a defense of sovereign immunity for failure to perform a ministerial duty. Furthermore, the Court properly instructed the jury regarding Plaintiffs’ claims. Likewise the City is not entitled to sovereign immunity for maintaining a Nuisance. Athens-Clarke County v. Torres, 246 Ga. App. 215, 540 S.E.2d 225(2000); City of Vidalia v. Brown 237 Ga. App. 831, 835, 516 S.E.2d 851 (1999). The City failed to request a limiting instruction regarding the nuisance claim and cannot raise such an objection for the first time in its Motion for a New Trial. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(8) The Court did not err in denying the City’s Motion in Limine Number 12. The City has a ministerial duty, pursuant to O.C.G.A. §32-4-93, to maintain its streets and rights of way. Maintaining streets and rights of way is not a discretionary function. Pursuant to O.C.G.A. §36-33-1(b), the City is not entitled to a defense of sovereign immunity for failure to perform a ministerial duty. Furthermore, the Court properly instructed the jury regarding the Plaintiffs’ claims. Likewise the City is not entitled to sovereign immunity for maintaining a Nuisance. Athens-Clarke County v Torres, 246 Ga. App. 215, 540 S.E.2d 225(2000); City of Vidalia v. Brown 237 Ga. App. 831, 835, 516 S.E.2d 851 (1999). The City failed to request a limiting instruction regarding the nuisance claim and cannot raise such an objection for the first time in its Motion for a New Trial. Therefore the City’s Motion for New Trial on this issue must be DENIED.

(9) The Court did not err in denying the City’s Motion in Limine Number 13. The staffing levels of the Park and Tree Department prior to the incident, at the time of the incident, and subsequent to the incident, are relevant and admissible regarding the City’s actual and constructive knowledge of the condition of the subject tree and the subject limb, and the credibility of its current employees.

The number of Park and Tree Employees before and after the incident is relevant to show that the City had sufficient personnel prior to July 2, 2010, to discover the defective condition of the subject limb and remedy its condition prior to its failure. The City has a ministerial duty, pursuant to O.C.G.A. § 32-4-93, to maintain its streets and rights of way. Maintaining streets and rights of way is not a discretionary function. Pursuant to O.C.G.A. 36-33-1(b), the City is not entitled to a defense of sovereign immunity for failure to perform a ministerial duty. Furthermore, the Court properly instructed the jury regarding the Plaintiffs’ claims. Likewise the City is not entitled to sovereign immunity for maintaining a Nuisance. Athens-Clarke County v Torres, 246 Ga. App. 215, 540 S.E.2d 225 (2000); City of Vidalia v. Brown 237 Ga. App. 831, 835, 516 S.E.2d 851 (1999). The City failed to request a limiting instruction regarding the nuisance claim and cannot raise such an objection for the first time in its Motion for a New Trial.
Furthermore, the fact that the City has “rifted” a number of employees since 2011, after the incident at issue, is relevant to the credibility of the various city witnesses who currently continue to work for the City of Savannah, as well as to the credibility of former City employee Ronald Kevin Brown, who the City contended was disgruntled because he had been “rifted”. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(10) The verdict is not specifically against the weight of the evidence on the nuisance claim. There is sufficient evidence in the record to establish; (1) the Defendant’s conduct was egregious enough to exceed mere negligence; (2) the resulting continuous or repetitious dangerous condition was of some duration; and (3) the Defendant failed to correct the danger within a reasonable time after acquiring knowledge of the defect or dangerous condition. Further, the City failed to move for directed verdict at trial and have waived the right to move for new trial based on the weight of the evidence. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(11) The verdict is not specifically against the weight of the evidence on Plaintiffs’ claim for negligence pursuant to O.C.G.A. § 32-4-93. There is sufficient evidence in the record to establish the City’s liability to the Plaintiffs pursuant to this code section. There was sufficient evidence for the jury to determine that the City knew, or should have known, of the defective condition of the subject tree limb. There is also sufficient evidence in the record to establish that a violation or violations of the City’s legal duty or duties proximately caused harm to the Plaintiffs. Further, the City failed to move for directed verdict at trial and have waived the right to move for new trial based on the weight of the evidence. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(12) The verdict is not specifically against the weight of the evidence, on the grounds that punitive damages were not recoverable against the City. Plaintiffs’ complaint and the Pretrial Order did not include a claim for punitive damages. The amount of the verdict in favor of the Plaintiffs was justified by the evidence of their injuries and other damages presented at trial. Plaintiff Shanta Greene was awarded $12,000,000.00, in monetary damages, due to the nature and severity of her horrific injuries, not because of an award of punitive damages. The award for Shanta Greene was for approximately twice her economic damages presented at trial. The jury awarded Louis Anderson approximately three to four times his economic damages and Xavier Anderson almost ten times his economic damages. Therefore, the jury’s award of $12,000,000.00 to Shanta Greene was a conservative award. Furthermore, there were no objections raised at trial regarding any arguments for punitive damages, or any award of punitive damages; therefore, any such objection has been waived. Finally, the City failed to move for directed verdict at trial and have waived the right to move for new trial based on the weight of the evidence. Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(13) The Court did not err in failing to give the City’s Request to Charge 1 through 3, regarding sovereign immunity, because sovereign immunity is not a defense to the City’s ministerial duties pursuant to O.C.G.A. § 32-4-93 and O.C.G.A. 36-33-1(b), nor is it a defense to a claim for Nuisance, Athens-Clarke County v. Torres, 246 Ga. App. 215, 540 S.E.2d 225(2000); City of Vidalia v. Brown 237 Ga. App. 831, 835, 516 S.E.2d 851 (1999). Therefore, the City’s Motion for New Trial on these issues must be DENIED.

(14) The Court did not err in charging the jury on spoliation. There was evidence in the record that the City was on notice of pending litigation and of the catastrophic injuries caused by the massive fallen limb containing extensive decayed and rotten wood. The City photographed portions of the limb on the date of the failure in order to provide said photographs to their risk management department. Some days later, the City made the choice to have the remains of the limb that had fallen from the tree taken to a City-owned landfill, while consciously choosing to preserve the limb stub that was still connected to the subject tree in anticipation of a claim, which the City contends contained “sound wood”. Furthermore, in spite of Plaintiffs’ letters mailed on July 16, and July 17, 2010, the City never made any attempts to retrieve the limb from the landfill, or to inquire into its whereabouts, or to inform the Plaintiffs of its location. The charge that was given by the Court was not as strong as the usual charge on spoliation in that it did not include the following language:

“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Such conduct creates the presumption that the evidence would have been harmful to the spoliator. Proof of spoliation raises a rebuttable presumption against [the spoliator] that the evidence favored [the spoliator’s opponent].”

For further response, see Plaintiffs’ Response to The Mayor and Aldermen of The City of Savannah’s Motion in Limine on Spoliation, previously submitted to this Court.

Therefore, the City’s Motion for New Trial on this issue must be DENIED.

(15) The Plaintiffs reserve the right to amend this Response, and to file a Response to any Amendment to the City’s Motion for New Trial, to respond to any additional grounds regarding the City’s Motion for New Trial, and to respond to any brief or other pleadings filed by The City in support of its Motion for New Trial.

(16) The Plaintiffs incorporate by reference and rely upon the entire record of this case, including all briefs and oral arguments, in support of this Response.

(17) Plaintiffs respectfully submit that all of the issues raised therein were thoroughly briefed and argued before the Court on the record. Some of them were briefed and argued multiple times.

Plaintiffs submit that the transcript of the trial nor a hearing is required for this Court to reach a decision. This Motion is merely an attempt by the City of Savannah to delay justice for the Plaintiffs in the above-styled case. Plaintiffs request that the Court DENY said Motion for New Trial without holding the hearing that is currently scheduled for November 7, 2013.

WHEREFORE, Plaintiffs respectfully request that Defendant’s Motion for New Trial be DENIED in its entirety.

This ____ day of _________________, 2013.

____________________________________
C. CLAY DAVIS

State Bar No. 207720

HOWARD E. SPIVA
State Bar No. 672375
Attorneys for Plaintiffs
SPIVA LAW GROUP
48 W. Montgomery Crossroad, Ste. 202
P.O. Box 61267
Savannah, GA 31420
(912) 920-2000
Fx (912) 920-4610