Is a City at Fault When a Motorist Hits a Planter on the Side of the Road?
The primary issue in a recent Georgia case was whether a municipality was exempt from prosecution by the doctrine of sovereign immunity where a college student was killed when his car collided with a large concrete planter on the shoulder of the road. His parents sued the city for negligence and nuisance. A jury found the city liable and awarded $30 million in damages.
Background
A college student was driving back to his parents’ house in 2016 when his car left the road, slid more than 60 feet, and collided with a large concrete planter on the shoulder of Batesville Road in Milton, GA, about 40 miles north of Atlanta.
The impact caused the car to flip and land on top of the planter, killing the man. There was no evidence that he was speeding or intoxicated; nor was there evidence he was using his cell phone while driving. Instead, based on the physical evidence, an accident reconstructionist opined that it appeared that the driver pulled the steering wheel hard to the right, as if trying to avoid something in the road, causing the vehicle to slide sideways onto the shoulder before striking the planter.
The planter was on the shoulder of the road between two driveways that provided access to an event facility. It was located about six feet off the roadway, but within the right-of-way, as defined by City Ordinance § 48-653.
The parents sued the City, alleging it was negligent and in breach of its ministerial duty to ensure the roadways were safe, and that the planter created a nuisance.
The testimony at trial established that the planter was on the City’s property and in the right-of-way, and that the City was responsible for its maintenance. Per its ordinances, the City was responsible for inspecting its roadways, identifying defects, and removing hazards—like the planter. Witnesses testified that the City should’ve noticed and removed the planter when it completed repair work to Batesville Road four years earlier. Experts said the planter was a problem, and “the appropriate response” and “obvious choice” was to remove it. However, the City didn’t do any safety inspections, and the City’s own code enforcement officer said, “Oops … how could we never notice” the existence of the planter.
The jury found the City liable because it had maintained a defect and a nuisance. It awarded damages but reduced the award by 7% for the amount of driver’s comparative fault. Both the City and the parents appealed.
The Court of Appeals Opinion
On appeal, the City argued that the trial court erred by denying its motion for judgment notwithstanding the verdict because the negligence claim was barred by sovereign immunity.
Judge Todd Markle of the Georgia Court of Appeals wrote that municipalities are protected by sovereign immunity under the state constitution unless that immunity is waived by the General Assembly or by the terms of the Constitution itself. The burden of demonstrating a waiver of sovereign immunity rests upon the party asserting it.
The General Assembly set out two separate waivers of the municipality’s sovereign immunity:
- A municipality can waive its immunity through the purchase of insurance under certain circumstances; and
- Municipal corporations can be liable for negligence in the performance of their ministerial duties.
Ministerial functions are those involving the exercise of some private franchise or some franchise conferred upon the municipal corporation by law which it may exercise for the private profit or convenience of the corporation or for the convenience of its citizens alone, in which the general public has no interest.
Moreover, one such ministerial duty is that of a municipality to maintain city streets in a reasonably safe condition for travel. But the General Assembly limited liability by statute. O.C.G.A. § 32‑4‑93(a) provides:
A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.
In other words, municipalities generally have a ministerial duty to keep their streets in repair, and they’re liable for injuries resulting from defects after actual notice or after the defect has existed for a sufficient length of time for notice to be inferred.
Did the City Waived its Sovereign Immunity under the Ministerial Duty Exception?
Judge Markle explained that the Court’s analysis considers (i) whether the planter was a defect in the road; and (ii) whether the City had notice of it. The judge wrote that for more than a century, the rule in Georgia has been that the municipality shouldn’t allow obstructions to adjoin the traveled way that will render its use unsafe and dangerous. Cities are liable for negligently allowing obstructions likely to cause injury to be placed upon or near the roadway.
Here, there was no dispute that the planter was located on the shoulder and within the right-of-way on the City’s property. Importantly, the term “road” is defined by O.C.G.A. § 32-1-3(24) as:
a highway, road, street, avenue, toll road, tollway, drive, detour, or other way that either is open to the public or has been acquired as right of way, and is intended to be used for enjoyment by the public and for the passage of vehicles in any county or municipality of Georgia, including but not limited to the following public rights, structures, sidewalks, facilities, and appurtenances incidental to the construction, maintenance, and enjoyment of such rights of way: (A) Surface, shoulders, and sides.
In addition, the City’s own municipal code defines right-of-way to include the shoulder. The City acknowledged that the planter was on the shoulder and in the right-of-way on a City-owned road. Plus, there was evidence that the shoulder was used for drivers in cases of emergency or in evasive maneuvers. As a result, the record showed that the planter was in the road as that term is defined by O.C.G.A. § 32-1-3(24).
Was the Planter a Defect?
A defect in the street includes objects near and suspended over the municipality’s streets and sidewalks. Their presence renders the use of these roads more hazardous. And in such cases, Judge Markle said the Court has repeatedly found that cities have waived their immunity.
In this case, the testimony showed that the planter was located on the City’s property in the right-of-way and on the shoulder. Additional testimony established that the shoulder was used to give drivers a place to maneuver if they needed to pull off the road or to perform an evasive maneuver, and that the presence of the planter on the shoulder was a hazard for vehicles leaving the travel lanes. There was other testimony that the City should’ve discovered the existence of the planter and removed it.
Given these facts, Judge Markle said that it was for the jury to determine if the planter constituted a defect. In a 2021 decision, the Court of Appeals explained:
Where a plaintiff alleges that the defective condition which caused injury was located on a part of the city’s street and sidewalk system, there must be some evidence that the defect was located in an area accepted by the city, either expressly or by implication, for use as a street or sidewalk before the city can be charged with liability for negligently failing to maintain the area in a reasonably safe condition.
Did the City Have Notice of the Defect in the Road?
Notice can be actual or constructive, the judge explained. Constructive notice of a defect may be imputed through the knowledge of the city’s employees or agents, or may be shown by testimony as to how long the defect existed prior to the injury, objective evidence that the defect existed over time, or evidence that others were injured as a result of the same condition over a period of years. The question of constructive notice ordinarily is for the jury, except in the absence of any evidence of constructive notice that could create a fact question, and in that case, the issue of negligence is a matter of law. Further, the length of time a defect must exist in order for an inference of notice to arise is ordinarily a question for the jury.
Here, there was testimony that the planter pre-dated the City’s incorporation in 2006, that the City performed repair work on the road in 2012. As such, the City could have noticed and removed the planter at that time. The City’s representative also acknowledged that, in surveys completed prior to the accident, the planter was visible. As a result, there was sufficient evidence from which the jury could conclude the City had notice.
The judgment for the driver’s parents and the jury award were affirmed. City of Milton v. Chang, 2024 Ga. App. LEXIS 358 (Ga. App. Sept. 16, 2024).
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