Pinson
ATLANTA - The Georgia Supreme Court put the brakes on a negligence suit against the City of Milton that resulted in a $35 million verdict, ruling the defendant could have been entitled to immunity from the claim.
The justices ruled last week that the State’s waiver of sovereign immunity for failure to keep streets safe for travel does not extend to roadside areas that might be used in the case of accident or emergency.
The case, City of Milton v. Chang, arose from the death of college-aged Joshua Chang, who was killed when his car hit a concrete planter that the City placed between two driveways more than six feet off the road. As described by the court, Chang was driving to his parents’ home through Milton when “he turned his wheel hard, and his car left the paved road, slid more than 60 feet, flipped, and landed on a substantial concrete ‘planter’” killing Chang.
Chang’s parents claimed that the City was negligent in maintaining the planter on the side of the road and that the planter was a nuisance for which the City was liable.
A jury found in Chang’s favor on both counts and awarded $35 million in damages, which was reduced by 7% due to Chang’s comparative fault.
The Court of Appeals affirmed.
The Supreme Court, in a 5-2 opinion written by Justice Andrew Pinson, reversed the Court of Appeals and remanded the case for consideration of whether other waivers of immunity would allow the negligence suit to proceed. Chief Justice Nels Peterson and Justice Benjamin Land were disqualified from the case.
At issue was the interplay of two Georgia statutes relating to the sovereign immunity of Georgia’s municipalities.
The first, § 36-33-1, provides general immunity to municipalities except in certain specific situations – where the municipality has insurance covering the particular claim, but only up to the coverage limit, and where the municipality neglects its ministerial duties.
The second statute, § 32-4-93(a), relieves municipalities of “any and all liability resulting from or occasioned by defects in the public roads” when it has not negligently built or maintained its roads, has no notice of negligent construction or maintenance, or when constructive notice of any defects cannot be inferred from the length of time the defect has existed.
The court declined to read § 32-4-93(a) as waiving sovereign immunity against the City, finding that “although this language leaves a distinct impression of a specific kind of negligence claim that may be brought against a municipality… the statutory history makes clear that the provision merely identifies limits on such a claim rather than waiving immunity for it.”
To decide whether the State has waived immunity for road defects, the court looked to § 36-33-1(b), which allows claims against Georgia municipalities only for their failure to perform ministerial duties.
That issue turns on whether the City was providing a “governmental function” for “public governmental purposes” – like operating traffic lights, jails, fire departments or sanitation systems – or acting in its “corporate and private character” for “its own private advantage” – such as by operating a city-owned rock quarry or toll bridge.
Though the court recognized that keeping streets and sidewalks safe has the hallmarks of a public governmental function and not of a ministerial private character, the majority argued that it was constrained by precedent holding that maintaining streets is a ministerial duty and was, therefore, left only with the task of determining whether the Changs’ allegations fit “within the bounds of the ministerial duty” outlined by the court’s prior rulings.
The court answered this question in the negative, finding that the duty to keep city streets and sidewalks safe for ordinary travel is focused “on the parts of the street or sidewalk intended for such travel – that is, in the lanes of travel” and not a planter six feet off the road even if that area might be used in the case of an accident or emergency.
“(B)ased on our precedent, that ministerial duty is limited to keeping streets and sidewalks safe for ordinary travel on the parts of the street or sidewalk intended for such travel — that is, in the lanes of travel,” Pinson wrote.
“This duty does not extend to keeping property outside the lanes of travel safe for traversal in case of an accident or emergency. That does not mean that a city has no duty of care or liability in connection with its property under such circumstances — only that any waiver of municipal immunity for a negligence claim involving those circumstances must come from some other source.”
Justices Verda Colvin and John Ellington disagreed with this conclusion and argued that “a municipality’s duty to keep its streets and sidewalks safe extends to ‘all parts of its’ municipal street system ‘which are intended to be used by the public’ and ‘over which the public ha[s] a right to pass.’”
Because the planter was located on the shoulder of the road, an area that even the City admitted in testimony the public had a right to travel, the Changs’ claim fell within the City’s ministerial duty waived by § 36-33-1(b) and should be allowed, the dissent reasoned.
Though this lane of liability was closed by the court’s ruling, the Changs’ case does not end there. The court made clear that its holding is limited only to the finding that § 36-33-1(b) does not waive immunity for the Changs’ particular negligence claim and that the negligence claim could proceed if a different waiver of immunity applies, if the City breached its general duty of care or if the planter was a nuisance for which the City could be held liable.
