Opinion
36838.
DECIDED OCTOBER 9, 1957.
Action for damages. Before Judge Alexander. Savannah City Court. May 29, 1957.
Corish, Alexander Shea, Bart E. Shea, for plaintiff in error.
Anton F. Solms, Jr., contra.
A municipality is not liable for the negligent performance or for the failure to perform its duty in the maintenance of a public bathing beach and appurtenances thereto, and in the absence of allegations showing that the municipality had charter authority to maintain the beach primarily as a source of revenue and that it was in fact so maintained, a petition seeking to recover for the death of the plaintiff's husband on account of alleged negligence in the erection and maintenance of steps leading from a boardwalk to the beach within the limits of the defendant municipality, was subject to and properly dismissed on general demurrer.
DECIDED OCTOBER 9, 1957.
Mrs. Agnes M. Tarver filed suit in the City Court of Savannah against Savannah Beach, Tybee Island and alleged substantially the following material facts: that prior to May 24, 1955, the defendant constructed, laid out and opened for public use a concrete sidewalk which is a part of a public street within the limits of said municipality; said sidewalk abuts and lies parallel to the eastern edge of a municipal parking lot located between Sixteenth and Eighteenth Streets and is adjacent and parallel to the beach along the portion of the strand running from Tybrisa Pavillion south to the foot of Eighteenth Street, said sidewalk sometimes being referred to as the "boardwalk"; that sometime prior to said date, the defendant constructed, laid out and opened for public use a set of wooden steps or bridgeway just to the east of the "New Solms Hotel", said bridgeway being one of three or four such bridgeways or steps positioned along the boardwalk which lead from said boardwalk down to the beach and provide the only means of ingress and egress for people going to and from the beach; that said steps were constructed of wood, being approximately 40 inches wide and having a tread depth of 10 inches and a rise of approximately 12 inches for each step; that the runners of said steps were supported by being bolted to four wooden posts sunk into the sands of the beach; that the first step of this structure counting from the sidewalk down to the beach abuts and is immediately contiguous to and on the same level as the sidewalk and that the remaining seven steps spaced as aforesaid end abruptly, resulting in the last step being approximately 28 inches in height above the surface of the beach; and that at this point, the surface of the sidewalk is approximately eight and one-half feet above the level of the beach.
The plaintiff alleged that the steps, or bridgeway, is but an extension and a part of the public sidewalk of the defendant municipality; that the condition and the distance that existed between the last step of the structure and the beach existed for a considerable length of time, for it had been the practice of the defendant for a number of years to remove the steps at the close of its summer season and place them in storage until late spring of the following year at which time they were again placed in position; that the defendant's officers and agents had for many years been aware of the changing level and elevation of this portion of the beach caused by the effects of tidal currents, and the defendant had failed to construct, repair or replace the structure in such a manner as to alleviate this "defect"; that the defendant had actual knowledge of the condition which had continued long enough so that it knew or should have known of its existence; that the defendant municipality was liable for its neglect in failing to perform and in the improper and unskillful performance of a ministerial duty imposed by law on said municipality as set forth in Code § 69-301.
The plaintiff alleged that her husband in walking down said steps on the date aforesaid was injured as the result of the defective condition of said steps and that ultimately, as the result of said injury, he died on November 6, 1955. The petition then sets forth the necessary facts to show the value of deceased's life and the damages accruing to the plaintiff as the result of his death and prayed for a money judgment against the city on account thereof.
A demurrer admits as true such facts alleged in the petition as are well pleaded. Code § 81-304; City of Albany v. Lippitt, 191 Ga. 756, 759 ( 13 S.E.2d 807). However, a demurrer does not admit legal conclusions alleged which are not supported by facts set forth in the petition. Swafford v. Certified Finance Co., 90 Ga. App. 83, 85 ( 82 S.E.2d 168); Bates v. Southern Ry. Co., 52 Ga. App. 576, 577 ( 183 S.E. 819). Under the foregoing rules of law, the allegations that the steps constitute an extension and a part of the public sidewalk of the defendant municipality and that the defendant in failing to construct, repair and maintain such steps in a safe condition is liable for such neglect or improper and unskillful performance of a ministerial duty imposed upon it under the provisions of Code § 69-301 constitute mere legal conclusions of the pleader and are not well taken, since the facts otherwise alleged, and construed most strongly against the plaintiff, show that the steps were an appurtenance to the beach and not to the sidewalk. This is true for it cannot be said that one using the steps to go to or from the beach was in any manner furthering his progress along the sidewalk, which the allegations show was constructed parallel to the beach. This conclusion is further strengthened by the fact alleged to the effect that the defendant takes the steps up at the end of the summer season and places them in position again in the late spring. In construing a petition on general demurrer, the court will consider that the plaintiff intended to serve his own best interests and will construe the allegations of the petition most strongly against the pleader, and if any inference unfavorable to the rights of the party claiming right may be fairly drawn from the allegations of the petition, this will be done. Hulsey v. Interstate Life Accident Ins. Co., 207 Ga. 167, 169 ( 60 S.E.2d 353), and the plaintiff, having failed to allege otherwise, will be taken as having used terms in their common or ordinary signification. The word "beach" has been defined by the courts as being synonymous with the word "shore" or "strand" and as including only the land washed by the sea, and by the highwater mark and low-water mark. Town of East Hampton v. Kirk, 68 N. Y. 459, 463. As used in the petition in this case, the phrase "the beach" comprised the beach within the meaning "`customarily given to this phrase by residents at seashore resorts, i. e., a strip of land above the usual high water line, more or less well defined by natural boundary, or in the rear by a sea wall, providing a convenient and safe access to the water for bathing or for sun baths either before or after going into the water', Lund v. Cox, 281 Mass. 484, 491." Hewitt v. Perry, 309 Mass. 100, 104 ( 34 N.E.2d 489). Thus construed, the allegations show that the beach and its appurtenances, including the steps here in question, if they were maintained by the City of Savannah Beach at all, were maintained primarily for the use of the general public and intended as a place of resort and pleasure and for the promotion of the health of the public at large. The petition, being construed in the light of its omissions as well as its averments ( Mackler v. Lahman, 196 Ga. 535, 537, 27 S.E.2d 35), fails to allege that such beach or park was maintained under charter authority for revenue purposes, and this being so, whatever duty the City of Savannah Beach had to maintain the beach and its appurtenances was in virtue of its governmental powers and no municipal liability would attach on account of its negligent or unskillful performance of these duties. Cornelieson v. City of Atlanta, 146 Ga. 416 ( 91 S.E. 415); Jones v. City of Atlanta, 35 Ga. App. 376 ( 133 S.E. 521); Reid v. City of Atlanta, 39 Ga. App. 519 ( 147 S.E. 789). It follows from what has been said that the trial court did not err in sustaining the general demurrer and in dismissing the petition.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.