Is a Lack of Crosswalks Designed to Protect Pedestrians a “Defect” under Georgia Law?
The administrator of the estate of a pedestrian and his surviving minor child of (“the plaintiffs’) appealed a trial court’s order granting the City of Atlanta’s motion to dismiss. The plaintiffs contended that the trial court erred in ruling that sovereign immunity barred their negligence claim and in ruling that they couldn’t base a nuisance claim on the City’s failure to place crosswalks on the streets.
Background
The Donald Lee Hollowell Parkway (the “Parkway”) is a four-lane state road located in Atlanta. In 2022, the decedent was trying to cross the Parkway on foot when he was hit and killed by a hit-and-run driver. There’s no pedestrian crossing on the Parkway near where the decedent tried to cross.
The plaintiffs filed a wrongful death action against the City, the Georgia Department of Transportation (“GDOT”), and the driver of the car. They alleged that the City and GDOT shared authority and control over the design and maintenance of the Parkway as well as the responsibility for its safety for use by the motoring public and pedestrians. They further alleged that the City and GDOT were aware that the Parkway was dangerous for pedestrians but failed to include sufficient crosswalks to protect pedestrians, including in the scene of the accident. As a result, they asserted that the City was liable for the negligent design, inspection, and maintenance of the Parkway and for failing to take appropriate action to eliminate a public nuisance that resulted in the decedent’s fatal injuries.
The City filed a motion to dismiss on the grounds that sovereign immunity barred the plaintiffs’ negligence claim and that it couldn’t be held liable under O.C.G.A. § 32-4-93 for the condition of the Parkway. That statute states:
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.”
Did the City Owe a Duty to the Decedent to Install a Traffic Light?
On appeal, the plaintiffs contended that the trial court erred in granting the City’s motion to dismiss based on sovereign immunity because the City waived that immunity by negligently performing its ministerial function of maintaining its street in a reasonably safe condition for travel.
Presiding Judge Brian M. Rickman of the Georgia Court of Appeals wrote that under Georgia law, claims against municipalities are barred by sovereign immunity unless the General Assembly waives that immunity. Although municipalities aren’t liable for failure to perform or for errors in performing their governmental functions, they are liable for failure to perform or improper or unskillful performance of their ministerial functions.
Traditionally, governmental functions have been defined as those of a purely public nature, intended for the benefit of the public at large, “without pretense of private gain to the municipality.” But ministerial functions “are recognized as 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.”
Here, the plaintiffs alleged that the City owed a duty to the decedent “to provide a sufficient number of signalized pedestrian crossings on the Parkway so as to provide safe passage across the street by any pedestrian.” They further alleged that the City breached that duty and that its negligence proximately caused the decedent’s death.
Judge Rickman explained that Georgia appellate courts have held that deciding whether to erect or not to erect a traffic control device or to maintain it after installation is an exercise of a governmental function by a municipality, and the municipality isn’t liable for any negligent performance of this function. This general rule has been applied to a city’s failure to repair a defective traffic light, failure to maintain and properly place a stop sign, failure to place signs or barricades to warn that a street is a dead end, and failure to replace a fallen stop sign.
The plaintiffs acknowledged this authority but argued that conduct that may typically constitute a governmental function may still be classified as a ministerial function where the conduct is related to the maintenance of streets and sidewalks to keep them safe for travel. In support of this argument, the plaintiffs pointed to well-settled law that a municipality has a duty to maintain city streets and sidewalks in a reasonably safe condition for travel. A city’s liability in this regard is limited, however, by O.C.G.A. § 32-4-93(a), which, stated positively, means that “municipalities generally have a ministerial duty to keep their streets in repair, and they are liable for injuries resulting from defects [in the public roads] after actual notice, or after the defect has existed for a sufficient length of time for notice to be inferred.”
The question then becomes what constitutes a defect in the public roads under O.C.G.A. § 32-4-93(a) and whether the lack of crosswalks or other safety devices designed to protect pedestrians is considered a defect under the statute. The Court of Appeals has interpreted the reference to “defects” in the Code section to refer to “the physical condition of the street itself,” including “defects brought about by the forces of nature and by persons and which render the street unsafe” and “objects adjacent to and suspended over the street,” the judge said.
The Court of Appeals concluded that the City’s alleged failure to install “a sufficient number of signalized pedestrian crossings” on doesn’t constitute a defect in the road for purposes of the statute. As a result, the trial court didn’t err in granting the City’s motion to dismiss the plaintiffs’ negligence claim.
The Plaintiffs’ Nuisance Claim
The plaintiffs also asserted that the trial court erred in ruling that she could not base a claim for nuisance on the City’s failure to place crosswalks on the Parkway.
The Georgia Supreme Court has recognized that “while a municipality enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function, it may be liable for damages it causes to a third party from the creation or maintenance of a nuisance.” “The difficulty, the Court explained, “arises in determining what conduct or act on the part of a municipality will result in the creation or maintenance of a nuisance, as opposed to an action in negligence.”
To assist in making this determination, the Supreme Court established guidelines for determining whether a municipality will be liable for creating or maintaining a nuisance:
- The defect or degree of misfeasance must exceed the concept of mere negligence;
- The act complained of must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and
- The municipality must have failed to act within a reasonable time after knowledge of the defect or dangerous condition.
And in 1978 the Supreme Court explained, that to be held liable for maintenance of a nuisance, the municipality:
- Must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury;
- Have knowledge or be chargeable with notice of the dangerous condition; and,
- If the municipality didn’t perform an act creating the dangerous condition, the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.
Georgia appellate courts have drawn a distinction between the negligent maintenance of something erected by the municipality in its discretion in such a manner as to create a dangerous nuisance and a discretionary nonfeasance, Judge Rickman wrote. Examples of cases falling in the first category include one in which the Georgia Supreme Court held that a plaintiff had set forth a cause of action for “the operation and maintenance of a nuisance” when a municipality continued operation of a traffic light that would flash either red or green on all four sides of the intersection simultaneously, resulting in numerous accidents of which the municipality was fully aware. And the Court of Appeals Court upheld a trial court’s denial of the city’s motion for directed verdict on an injured motorist’s claim that the city had created and maintained a nuisance when it installed traffic signals in a manner so as to be obscured by a preexisting railroad bridge.
Cases of discretionary nonfeasance a 1979 wrongful death action brought by the mother of a child who was traveling across a bridge and attempted to walk down the steep slope to the creek below when she slipped, fell into the creek, and ultimately drowned. Addressing the plaintiff’s claim that the proximate cause of her daughter’s drowning was the city’s negligence in failing to maintain the road in a safe condition, thereby creating a nuisance, our Supreme Court found the city’s failure to provide “any fencing barriers, obstructions, or curbing to prevent parties from falling from the road or the areas immediately adjacent thereto” or “any signs or warning devices to warn travelers of the dangerous propensities of the creek” to be an “example of discretionary nonfeasance on the part of the defendant city,” and held that the city was not liable to the plaintiff.
Here, the Court of Appeals was presented with a case of non-action by the City, not a case where the City installed pedestrian crosswalks and failed to maintain them. As a result, the Court affirmed the trial court’s dismissal of the plaintiffs’ nuisance claim. Ryles v. City of Atlanta, 2025 Ga. App. LEXIS 254, 2025 LX 196570 (Ga. App. June 18, 2025).
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