(Ga. L. 1919, p. 242, art. 3, §§ 3, 5; Ga. L. 1919, p. 242, art. 4, §§ 1-3; Ga. L. 1919, p. 242, art. 6, § 3; Ga. L. 1922, p. 176, § 1; Ga. L. 1929, p. 260, § 2; Code 1933, §§ 95-1502, 95-1504, 95-1701, 95-1702, 95-1703, 95-1710, 95-1715, 95-1724; Code 1933, §§ 95A-302, 95A-303, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, §§ 6-9; Ga. L. 1975, p. 98, §§ 1, 2; Ga. L. 1976, p. 416, § 1; Ga. L. 1976, p. 775, § 2; Ga. L. 1979, p. 973, §§ 2, 3; Ga. L. 1980, p. 773, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1983, p. 3, § 56; Ga. L. 1986, p. 10, § 32; Ga. L. 1991, p. 1355, § 1; Ga. L. 1993, p. 1402, § 18; Ga. L. 2000, p. 951, § 2-2; Ga. L. 2001, p. 1251, § 1-1; Ga. L. 2009, p. 848, § 2/SB 85; Ga. L. 2010, p. 863, § 3/SB 296; Ga. L. 2018, p. 629, § 2-1/SB 402.)
The 2018 amendment, effective May 7, 2018, deleted "and" at the end of subparagraph (a)(18)(C), substituted "; and" for the period at the end of paragraph (a)(19), and added paragraph (a)(20).
Cross references.- Aviation authority, T. 6, C. 5.
Further provisions regarding powers and duties of department as regards aviation, §§ 6-1-1,6-1-2.
Powers and duties of department with regard to construction of bicycle trails and bikeways, § 12-3-115.
Erosion and sediment control plan prepared, § 12-7-7.1.
Motor fuel and road taxes, T. 48, C. 9.
Powers and duties of department regarding welcome centers on federal highways, and installation and operation of vending machines at such centers, § 50-7-12 et seq.
Powers and duties of department with regard to intracoastal waterway, T. 52, C. 3.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1985, periods were substituted for semicolons at the end of subparagraphs (a)(12)(A), (a)(17)(A)-(a)(17)(C), (a)(18)(A) and subdivisions (a)(18)(B)(i)-(a)(18)(B)(iii); and "subparagraph (d)(1)(A)" was substituted for "subparagraph (A) of paragraph (1) of subsection (a)" in subparagraphs (a)(17)(B) and (a)(17)(D).
Pursuant to Code Section 28-9-5, in 1987, "property" was substituted for "porperty" in paragraph (a)(9) and, in subparagraph (a)(17)(A), "and aviation" was added following the first "aviation" and "and aviation" was deleted following the second "aviation".
Pursuant to Code Section 28-9-5, in 1994, in subsection (a), "contract lawsuits," was substituted for "contract lawsuits" near the middle of paragraph (a)(4) and "or private," was substituted for "or private" near the end of subparagraph (a)(17)(A).
Pursuant to Code Section 28-9-5, in 2018, "Chapter 40" was substituted for "Chapter 39" near the end of paragraph (a)(20).
Editor's notes.- Ga. L. 2018, p. 629, § 1-1/SB 402, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Achieving Connectivity Everywhere (ACE) Act.'"
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 672; former Code 1873, § 671; former Code 1882, §§ 684, 690; former Civil Code 1895, §§ 616, 622; former Civil Code 1910, § 748; and former Code 1933, §§ 95-302, 95-1504, 95-1701, 95-1715 and 95-1724, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.
Georgia DOT is an arm of the state and thus may have immunity under the Eleventh Amendment because any recovery would have been paid out of state funds and the fact that Georgia DOT can allocate the DOT's funds in DOT's own discretion and without intervention by the state legislature does not change the fact that these funds are state funds. Robinson v. Georgia DOT, 966 F.2d 637 (11th Cir.), cert. denied, 506 U.S. 1022, 113 S. Ct. 660, 121 L. Ed. 2d 586 (1992).
Under O.C.G.A. § 32-2-2, the legislature has delegated to DOT the authority to exercise the right and power of eminent domain for public road and transportation purposes. It follows that DOT is an "arm of the State" for eminent domain purposes, and the trial court correctly held that an action brought against DOT under 42 U.S.C. § 1983 could not be maintained for losses occasioned by pre-condemnation publicity. Thompson v. DOT, 209 Ga. App. 353, 433 S.E.2d 623 (1993).
Georgia DOT has immunity under the Eleventh Amendment.
- Georgia DOT, which may receive immunity under the eleventh amendment, did not waive the DOT's immunity when plaintiffs sought relief for inverse condemnation of property that was an ancestral cemetery because DOT had consented to suit in state court; the Georgia Constitution expressly reserves the state's immunity in federal court and a waiver in state court does not constitute a waiver in federal court. Robinson v. Georgia DOT, 966 F.2d 637 (11th Cir.), cert. denied, 506 U.S. 1022, 113 S. Ct. 660, 121 L. Ed. 2d 586 (1992).
Negligent design.
- Contractors were not liable for the negligent design of a ramp as the Georgia Department of Transportation (DOT) had responsibility for the design of the ramp, notwithstanding the fact that DOT gave the contractors no drawings, that the contractors made suggestions for changes to the ramp, and that the contractors implemented the DOT's design; there was no evidence that the DOT relinquished control of the design to the contractors or that the contract specified that the design of the ramp was the contractors' responsibility. Fraker v. C.W. Matthews Contr. Co., 272 Ga. App. 807, 614 S.E.2d 94 (2005), aff'd, No. 06-11805, 2007 U.S. App. LEXIS 28793 (11th Cir. 2007).
Negligence suit involving paving company.
- Trial court erred by granting a paving company summary judgment in a negligence suit based on the affidavit of the company's president because the business records referred to and relied upon by the paving company's president were not attached to the president's affidavit; thus, the affidavit could not be used to support the company's motion for summary judgment. Brown v. Seaboard Constr. Co., 317 Ga. App. 667, 732 S.E.2d 325 (2012).
Department failed to properly apply for discretionary review.
- In a case involving a white supremacist organization being denied a permit for the Adopt-A-Highway program administered by the Georgia Department of Transportation (Department), the court dismissed the Department's appeal for lack of jurisdiction because the Department sought review of a decision of a state administrative agency and was required under O.C.G.A. § 5-6-35(a)(1) to bring the Department's appeal by way of an application for discretionary review, but failed to do so. State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016).
Cited in Hall County Historical Soc'y, Inc. v. Georgia DOT, 447 F. Supp. 741 (N.D. Ga. 1978); Hendrix v. Department of Transp., 188 Ga. App. 429, 373 S.E.2d 264 (1988); DOT v. Carr, 254 Ga. App. 781, 564 S.E.2d 14 (2002); Hubbard v. DOT, 256 Ga. App. 342, 568 S.E.2d 559 (2002); Campbell v. State Rd. & Tollway Auth., 276 Ga. 714, 583 S.E.2d 32 (2003).
Authority of Department
Enforcement authority granted by O.C.G.A. § 32-2-2 is neither overbroad nor an illegal delegation of legislative functions. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).
Delegation to contractor permitted.
- Nothing in O.C.G.A. § 32-1-3(24)(J) or O.C.G.A. § 32-2-2(a)(3) prevents the Georgia Department of Transportation from delegating the responsibility for designing and implementing a traffic control plan to a private contractor. Comanche Constr., Inc. v. DOT, 272 Ga. App. 766, 613 S.E.2d 158 (2005).
Department's duties in connection with state highway system.
- When the charge in question does in fact state that the Department of Transportation has "general responsibility to design, manage and improve the state highway system," it seems to capture the essence of the sections the defendant relies upon, which are in fact very broad, general descriptions of the duties of the DOT. The additional material used by the court is drawn from the more specific statutory description of the respective duties of the DOT and municipalities. Thus, O.C.G.A. § 32-2-2 does indeed mention the general duty of the DOT to "designate, improve, manage, control, construct, and maintain." Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).
Authority to maintain state-aid highways.
- Court of equity will not interfere with the discretionary action of the State Highway Department (now Department of Transportation) in locating, grading, or improving a state-aid highway, within the area of their legally designated powers, unless such action is arbitrary and amounts to an abuse of the court's discretion. State Hwy. Dep't v. Strickland, 213 Ga. 785, 102 S.E.2d 3 (1958).
There is no general duty imposed on the counties to maintain state highways. Christian v. Monroe County, 203 Ga. App. 342, 417 S.E.2d 37 (1992); Hardy v. Candler County, 214 Ga. App. 627, 448 S.E.2d 487 (1994).
Authority to take property to relocate gas line.
- State Highway Department (now Department of Transportation) was authorized to take property for the relocation of the gas company's interstate gas line since it was in the interest of safety and prevented inconvenience to the public using the gas line and since the acquisition was in furtherance of and reasonably for a public state highway use. Benton v. State Hwy. Dep't, 111 Ga. App. 861, 143 S.E.2d 396 (1965) (decided under former Code 1933, §§ 95-1701, 95-1715, and 95-1724).
Authority to construct public highway through municipalities or cities.
- State Highway Department (now Department of Transportation) may construct public highways through municipalities or cities of this state without their consent. City of Carrollton v. Walker, 215 Ga. 505, 111 S.E.2d 79 (1959) (decided under former Code 1933, § 95-1504).
Extending roads through towns without consent.
- State Highway Board (now State Transportation Board), on the board's own initiative or acting through a county, has the legal right to extend and improve a state-aid road through the streets of a municipality without the consent of the municipality and even against the municipality's will. Perkerson v. Mayor of Greenville, 51 Ga. App. 240, 180 S.E. 22 (1935) (decided under former Code 1933, § 95-1504).
General regulatory power to approve erection of traffic signals.- When the additional portion of the charge objected to here similarly drew from specific applicable statutory language, the court properly noted the general regulatory power of the Department of Transportation to approve the erection of traffic signals. Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).
Department lacks exclusive responsibility for all aspects of highway system.
- O.C.G.A. § 32-2-2(a)(1) does not place exclusive responsibility for all aspects of the state highway system in the Department of Transportation. City of Fairburn v. Cook, 188 Ga. App. 58, 372 S.E.2d 245, cert. denied, 188 Ga. App. 911, 372 S.E.2d 245 (1988).
Maintenance of highways within city limits.
- When the Department of Transportation fails to maintain those portions of the state highway system lying within a municipality's corporate limits as required by law and when the municipality agreed to perform the necessary maintenance, a municipality can be held liable for such failure under O.C.G.A. § 32-4-93(b). City of Fairburn v. Cook, 188 Ga. App. 58, 372 S.E.2d 245, cert. denied, 188 Ga. App. 911, 372 S.E.2d 245 (1988).
Authority to remove obstructions.
- Management and control of the right of way of the state's system of roads is vested in the Department of Transportation and the department can require the removal of any obstruction placed thereon without express permission. Crider v. Kelley, 232 Ga. 616, 208 S.E.2d 444 (1974).
No authority to maintain overgrown area bordering intersection.
- In a wrongful death action, the trial court did not err in finding the Georgia Department of Transportation immune from suit from liability to the decedent's estate and survivors for failing to maintain an overgrown area of shrubbery that bordered an intersection, as neither O.C.G.A. § 32-2-2, when read in concert with O.C.G.A. § 32-4-93, nor O.C.G.A. § 50-21-24(8) imposed liability on the Department; hence, maintenance of the area did not constitute a "substantial" or "other major" maintenance activity. Welch v. Ga. DOT, 283 Ga. App. 903, 642 S.E.2d 913 (2007).
Condemnation of public property.
- O.C.G.A. § 32-2-2(b) does not constitute specific authority to Department of Transportation to condemn public property. DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).
Bridges
1. Liability of County
Duties of county authorities in maintaining and repairing bridges.
- County authorities are not insurers of the safety of county bridges, but must only exercise ordinary care in maintaining and repairing the bridges. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934) (decided under former Civil Code 1910, § 748).
Definition of "bridge" includes approaches.
- While the word "bridge," as used in former Civil Code 1910, § 748 did not include the public road leading thereto, or a drain or opening thereunder, the statute did include "all the appurtenances necessary to its proper use, and embraces its abutments and approaches and that which is necessary as an approach, to connect the bridge with the highway, is an essential part of the bridge itself." Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934) (decided under former Civil Code 1910, § 748).
In an action against a county for damages from the falling of truck through an opening where a public bridge had been into a ravine below, the petition was not subject to demurrer (now motion to dismiss), and the verdict for the plaintiff was not contrary to law or without evidence to support the verdict, under the defendant's contention that the injury was not caused by reason of a "defective bridge" within the meaning of the statute, but from the entire removal of the bridge, for which the county was not liable, since the petition and the evidence showed that at the time of the injury at least a part of the bridge, i.e., the sills constituting a portion of its "approaches," still remained, and the rest of the bridge was then being repaired. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934) (decided under former Civil Code 1910, § 748).
2. Liability of Individual Owners
Standard of care required for private toll bridges.
- Owner of a bridge franchise is bound to exercise only such care and diligence in the construction of a bridge and keeping the bridge in proper order which every prudent man would exert in relation to the same property in view of the object and purpose for which the bridge was erected and used by the prudent man. Tift v. Towns, 53 Ga. 47 (1874) (decided under former Code 1873, § 671).
Nonliability during repairs.
- While the proprietor of a toll bridge is having the bridge repaired, in accordance with the proprietor's duty, the floor being taken up and no toll charged, the proprietor's role as a proprietor of a toll bridge is discontinued; and the proprietor is not liable under this section to one injured by reason of the condition of the bridge. Tift v. Jones, 52 Ga. 538 (1874) (decided under former Code 1873, § 671).
Private toll bridge without permit prohibited.
- This section did not contemplate a case where a public road crossed a bridge, and where a few people obtained possession by a transfer of a mechanic's lien and proceeded to charge a toll without authority granted to the people from some proper source. Whelchel v. State ex rel. Wiley, 76 Ga. 644 (1886) (decided under former Code 1882, § 684).
Ferries
Liability for ferry kept for own use.
- One who keeps a ferry for one's own use is not liable except for gross neglect unless one is in the habit of charging a toll. Self v. Dunn & Brown, 42 Ga. 528, 5 Am. R. 544 (1871) (decided under former Code 1863, § 672).
When ferry loses private character.
- While the owner of a private ferry may lawfully charge and collect a toll from persons incidentally crossing thereat, should the owner maintain the ferry for use by the public at large or seek public patronage, or pursue the business of keeping up the ferry for the public, the ferry loses the ferry's character as a private ferry. Hudspeth v. Hall, 111 Ga. 510, 36 S.E. 770 (1900) (decided under former Code 1895, § 616).
Suits against public ferry operators for loss of property.
- Since public ferry operators are common carriers, no allegation of negligence was necessary in suits brought to recover damages for loss of property accepted for shipment. Deen v. Wheeler, 7 Ga. App. 507, 67 S.E. 212 (1910) (decided under former Code 1895, § 622).
Landowner liability.
- Under this section, the owner of the land on which a public ferry is situated, unless the ownership of the ferry be separated from that of the land, is liable for negligent torts committed by the ferry operator in the performance of the operator's duties as such, whether the owner objects to the use of the ferry or not. Printup v. Patton & Jackson, 91 Ga. 422, 18 S.E. 311 (1893) (decided under former Code 1882, § 690).
Amendment to petition showing liability as landowner permissible.
- Petition originally basing liability on ownership of the ferry may be amended to include liability as owner of the land and proof of either will sustain the action. Deen v. Wheeler, 7 Ga. App. 507, 67 S.E. 212 (1910) (decided under former Code 1895, § 622).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 95-1715 and 95-1724, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.
Department of Transportation control over contemplated tree cutting operations.- Given the Department of Transportation's authority and obligation to control the state highway system, it seems imperative that the department maintain rigid and absolute control over any contemplated tree cutting operations, particularly if those operations are undertaken by private individuals on rights-of-way. 1981 Op. Att'y Gen. No. 81-75.
Authorization to formulate rules related to, and issuance of permits for, cutting of trees and vegetation on rights-of-way does not impinge upon the Department of Transportation's authority and legal obligation to control the state highway system. 1981 Op. Att'y Gen. No. 81-75.
Department lacks authority to fund county airport project.- Department of Transportation may not help fund completion of airport master planning project for county airport because it would constitute a forbidden assumption of county debt. 1973 Op. Att'y Gen. No. 73-126.
Department of Transportation may enter into transportation construction contracts with financial backing from State Road and Tollway Authority.- Department of Transportation may enter into transportation construction contracts with all or a portion of the financial backing for the contracts coming from a contractual promise from the State Road and Tollway Authority to borrow and provide money to DOT as and when needed to expend on projects that are the subjects of the construction contracts. 2001 Op. Att'y Gen. No. 2001-10.
Department may not contract with individual to maintain federal highways.- Since the state is obligated to follow federal law with reference to interstate highways, the state's making a contract for supplying to an individual the hay cut from rights of way of interstate highways in return for the individual's cutting it would not be acceptable since the federal government requires maintenance contracts to be made with governmental instrumentalities only. 1973 Op. Att'y Gen. No. U73-71.
Authority to issue license for rail line.- Department of Transportation has authority to issue a revocable license to a company constructing and operating a rapid rail passenger service line to cross the rights-of-way of several state routes so long as consideration is received which represents a substantial benefit to the public. 1995 Op. Att'y Gen. No. 95-45.
Department may buy litter bags for distribution.- Department of Transportation may lawfully spend motor fuel tax funds for the purchase of litter bags to be distributed free of charge to motorists at Georgia's welcome stations. 1973 Op. Att'y Gen. No. 73-145.
Carriage upon state aircraft must be limited to state officials and employees on official business of the state and those non-employees from whose carriage the state derives some benefit. The only exceptions may be in those areas exempted from Ga. Const. 1983, Art. III, Sec. VI, Para. VI(a), the gratuities provision of the Constitution, by Ga. Const. 1983, Art. III, Sec. VI, Para. VI(b). 1989 Op. Att'y Gen. No. 89-19.
Use of state-owned aircraft.- If the Governor, Lieutenant Governor, or Speaker of the House must travel on personal or political business, such travel must be accomplished by private means unless the Commissioner of Public Safety has determined that travel on state aircraft is necessary for personal security; otherwise, when any public officer uses a state aircraft for a personal or political reason, the use of the aircraft is contrary to the prohibitions of the gratuities clause and state statutes authorizing the use of state aircraft, even were the official to reimburse the state for the direct costs associated with the trip. 2004 Op. Att'y Gen. No. 04-3.
Department's powers and duties on funding strictly construed.- Powers and duties delegated to the State Highway Department (now Department of Transportation), especially those concerning appropriations and expenditures of state funds, must be strictly construed. 1971 Op. Att'y Gen. No. 71-85 (decided under former Code 1933, §§ 95-1715 and 95-1724).
Department may not fund road outside of state highway system.- Specific powers mentioned in this section do not authorize the State Highway Department (now Department of Transportation) to match federal funds or to purchase rights of way on roads which are not on the official state highway system. 1971 Op. Att'y Gen. No. 71-85 (decided under former Code 1933, §§ 95-1715 and 95-1724).
Department may not reimburse subdivision for rights of way bought outside highway system.- State Highway Department (now Department of Transportation) has no legal authority to reimburse a political subdivision for the cost of any rights of way they may buy for a federal-aid highway improvement project on a road not on the official state highway system. 1971 Op. Att'y Gen. No. 71-85 (decided under former Code 1933, §§ 95-1715 and 95-1724).
Lapse of appropriations that become deobligated.- Appropriated state funds which become deobligated during a subsequent fiscal year are subject to lapse, and may not be applied to contracts for which motor fuel tax appropriations were previously committed. 1993 Op. Att'y Gen. No. 93-9.
Department may not expend money on historic preservation if not for transportation.
- Department of Transportation may expend federal and state funds on transportation enhancement activities as defined in 23 U.S.C. § 101(a) in those instances where the Code of Public Transportation gives the department the authority to expend such funds, but the Department of Transportation has no authority to expend federal or state money on historic preservation, rehabilitation, and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals) where such buildings, structures, or facilities are not being acquired for transportation purposes. 1993 Op. Att'y Gen. No. 93-3 (decided prior to 1993 amendment of O.C.G.A. § 32-1-3).
Applicability of Fair and Open Grants Act of 1993 to funds expended from funds.
- Fair and Open Grants Act of 1993, O.C.G.A. § 28-5-120 et seq., does not apply to disbursements made by the Department of Transportation pursuant to contracts entered into with private entities, nor to intergovernmental contracts with counties for harbor maintenance; but the Act does apply when funds are disbursed by the department on an unrestricted basis to, or for the benefit of, local governments for public road and other transportation purposes. 1994 Op. Att'y Gen. No. 94-1.
RESEARCH REFERENCES
Am. Jur. 2d.
- 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 12 et seq.
C.J.S.- 39A C.J.S., Highways, § 73 et seq.
ALR.
- Duty and liability as to lighting bridge, 47 A.L.R. 355.
Constitutionality and construction of statute relating to location or relocation of highways, 63 A.L.R. 516.
Duty as regards barriers for protection of automobile travel, 86 A.L.R. 1389; 173 A.L.R. 626.
Personal liability of highway officers for damage to or trespass upon land in connection with construction or maintenance of highway, 90 A.L.R. 1481.
Power and duty of highway officers as regards location or routes of roads to be constructed or improved, 91 A.L.R. 242.
Validity and applicability of statutes relating to use of highway by private motor carriers and contract motor carriers for hire, 175 A.L.R. 1333.
Construction of highway through park as violation of use to which park property may be devoted, 60 A.L.R.3d 581.
Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from ice or snow on surface of highway or street, 97 A.L.R.3d 11.
Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from failure to repair pothole in surface of highway or street, 98 A.L.R.3d 101.
Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from defect or obstruction on roadside parkway or parking strip, 98 A.L.R.3d 439.
Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from design, construction, or failure to warn of narrow bridge, 2 A.L.R.4th 635.
Highways: Governmental duty to provide curve warnings or markings, 57 A.L.R.4th 342.
Governmental tort liability as to highway median barriers, 58 A.L.R.4th 559.