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Thompson v. City of Fitzgerald

Plaintiffs had no cause of action for negligence or public nuisance against a city that neither owned nor legally controlled the creek in which plaintiffs' 7-year-old daughter drowned.

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Following a period of heavy rains, seven-year-old Shonda Thompson fell into the swollen waters of a creek which runs adjacent to her home and drowned. Rosie Thompson and Clark Thompson, as parents of Shonda and as administrators of her estate, and Thomas Everett, as temporary administrator of the estate of Clark Thompson, sued the City of Fitzgerald and the Fitzgerald Water Department. The City of Fitzgerald moved for summary judgment, which the trial court granted. The plaintiffs appeal the trial court’s order. Because no genuine issue of material fact exists regarding the City of Fitzgerald’s liability, we affirm the trial court’s grant of summary judgment to the City.

On appeal of the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any question of material fact exists.1 Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.2 A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . All of the other disputes of fact are rendered immaterial.”3 If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.4

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