(Civil Code 1895, § 748; Civil Code 1910, § 897; Code 1933, § 69-301; Ga. L. 1986, p. 1312, § 1; Ga. L. 1987, p. 3, § 36; Ga. L. 2002, p. 579, § 2.)
Cross references.- Liability of municipalities for defects in public roads, § 32-4-93.
Limited waiver of governmental immunity by purchase of motor vehicle liability insurance, § 33-24-51.
Law reviews.- For article, "The Tort Liability of Municipalities in Georgia," see 17 Ga. B. J. 456 (1955). For article, "Actions for Wrongful Death in Georgia: Parts Three and Four," see 21 Ga. B. J. 339 (1959). For article surveying tort liability insurance in Georgia local government law, see 24 Mercer L. Rev. 651 (1973). For article, "Personal Liability of State Officials Under State and Federal Law," see 9 Ga. L. Rev. 821 (1975). For article discussing Georgia's practice of exposing municipalities to tort liability through the use of nuisance law, see 12 Ga. St. B. J. 11 (1975). For article discussing municipal tort liability and the defense of extraterritorial operation, see 12 Ga. L. Rev. 1 (1977). For article discussing sovereign immunity and the State Court of Claims, see 14 Ga. St. B. J. 152 (1978). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article discussing origin and construction of municipal tort liability law in Georgia, see 14 Ga. L. Rev. 239 (1980). For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986). For article, "Georgia Local Government Tort Liability: The 'Crisis' Conundrum," see 2 Ga. St. U. L. Rev. 19 (1986). For article, "'Sue and Be Sued' in Georgia Local Government Law: A Vignette of Vicissitudes," see 41 Mercer L. Rev. 13 (1989). For annual survey on law of torts, see 43 Mercer L. Rev. 395 (1991). For article, "Local Government Tort Liability: The Summer of '92," see 9 Ga. St. U. L. Rev. 405 (1993). For article, "Georgia's Public Duty Doctrine: The Supreme Court Held Hostage," see 51 Mercer L. Rev. 73 (1999). For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004). For article, "Police Pursuits: A Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Law," see 57 Mercer L. Rev. 511 (2006). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For annual survey of administrative law, see 67 Mercer L. Rev. 1 (2015). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For annual survey on local government law, see 71 Mercer L. Rev. 189 (2019). For note discussing governmental immunity from tort liability in Georgia, see 5 Ga. St. B. J. 494 (1969). For note, "Adverse Possession of Municipal and County Property Held for Proprietary Purposes: The Unique Georgia Development," see 7 Ga. St. B. J. 482 (1971). For note analyzing sovereign immunity in this state and proposing implementation of a waiver scheme and creation of a court of claims, see 27 Emory L.J. 717 (1978). For note on the 2002 amendment of this Code section, see 19 Ga. St. U. L. Rev. 243 (2002). For comment on City of Atlanta v. Hurley, 83 Ga. App. 879, 65 S.E.2d 44 (1951), see 3 Mercer L. Rev. 218 (1951). For comment criticizing City of Atlanta v. Hurley, see 14 Ga. B. J. 80 (1951). For comment on Caroway v. City of Atlanta, 85 Ga. App. 792, 70 S.E.2d 126 (1952), see 15 Ga. B. J. 79 (1952). For comment on Knowles v. Housing Auth., 212 Ga. 729, 95 S.E.2d 659 (1957), holding that the Act giving the housing authority unqualified power to sue and be sued under § 49-2-6 waived any immunity the authority otherwise might have claimed under the state's privilege of governmental immunity, see 20 Ga. B. J. 258 (1957). For comment on Ethridge v. Lavonia, 101 Ga. App. 190, 112 S.E.2d 822 (1960), see 23 Ga. B. J. 129 (1960). For comment on City of Atlanta v. Mapel, 121 Ga. App. 567, 174 S.E.2d 599 (1970), as to municipal corporation's negligence liability for injuries sustained at municipal golf courses, see 22 Mercer L. Rev. 608 (1971).
JUDICIAL DECISIONSANALYSIS
Legislature has unfortunately codified the doctrine of municipal immunity into statutory law to the extent that the judicial branch of government has been preempted from effectively destroying that which the judiciary created. City of Atlanta v. Mapel, 121 Ga. App. 567, 174 S.E.2d 599 (1970).
Violation of duty to act.
- When the city knows or ought to know of a defect, in time to repair or give warning of the defect, the city is liable for injuries sustained because of the defect regardless of the defect's cause. City of Rome v. Brinkley, 54 Ga. App. 391, 187 S.E. 911 (1936).
If a municipality did not perform an act creating a dangerous condition, the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act. Mayor of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978).
In action to recover overcharges for electricity, defendant-municipality has legal duty to disclose existence of more favorable demand meter rate. City of Commerce v. Duncan & Godfrey, Inc., 157 Ga. App. 337, 277 S.E.2d 266 (1981).
No distinction between negligent and intentional torts.
- Former Code 1933, §§ 69-301 and 69-307 (see now O.C.G.A. §§ 36-33-1 and36-33-3) did not distinguish between torts of nonfeasance or misfeasance committed by negligence, and other torts committed corruptly, maliciously, willfully, or wantonly. Brown v. City of Union Point, 52 Ga. App. 212, 183 S.E. 78 (1935).
Applicability to federal actions.- State cannot impose conditions precedent to the right of a party to proceed under 42 U.S.C. § 1983. Williams v. Posey, 475 F. Supp. 133 (M.D. Ga. 1979).
Applicability to diversity actions.- In a diversity action against a Georgia city arising out of an accident in South Carolina involving a city garbage truck, even though the city would not be entitled to sovereign immunity under South Carolina law, immunity enjoyed by the city under Georgia law would be extended as a matter of comity. Davis v. City of Augusta, 942 F. Supp. 577 (S.D. Ga. 1996).
Inapplicable when waiver of immunity undisputed.
- O.C.G.A. § 36-33-1 does not create a duty on the part of cities to perform all acts properly and skillfully; the statute simply creates an exception from sovereign immunity for cities' negligence in proprietary or nongovernmental matters and did not apply in a case where defendants' waiver of sovereign immunity was undisputed. City of Buford v. Ward, 212 Ga. App. 752, 443 S.E.2d 279 (1994).
Effect of demand statute.
- Before the enactment of former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5), requiring a demand, the liability of every municipal corporation in Georgia, under former Code 1933, § 69-301 (see now O.C.G.A. § 36-33-1), was unqualified and unconditional; by the enactment of the law requiring a demand this unqualified liability of each municipal corporation became conditional upon the demand required by the statute. City of Atlanta v. Hudgins, 193 Ga. 618, 19 S.E.2d 508 (1942).
Notice requirement.- Notice must be given to hold liable a municipality for negligent ministerial acts. Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971).
Establishment of waiver.
- Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection; waiver of immunity must be established by the party seeking to benefit from the waiver. City of Lawrenceville v. Macko, 211 Ga. App. 312, 439 S.E.2d 95 (1993), overruled on other grounds by Clive v. Gregory, 280 Ga. App. 836, 635 S.E.2d 188, 2006 Ga. App. LEXIS 880 (Ga. Ct. App. 2006).
Sovereign immunity waived only by legislative act.
- Relying on the plain language of O.C.G.A. § 36-33-1(a), the Georgia Supreme Court concluded that sovereign immunity could be waived only by an act of the legislature and, therefore, the indemnification agreement between the city and a corporation was void as an ultra vires contract; however, the case was remanded to the federal district court for consideration of whether, pursuant to O.C.G.A. § 36-33-1(a), the city waived the city's sovereign immunity as to the corporation's cause of action by purchasing insurance. CSX Transp., Inc. v. City of Garden City, 355 F.3d 1295 (11th Cir. 2004).
Purchase of liability insurance no waiver of immunity.
- Absent statutory authority limiting the application of the provisions of this chapter, the procurement of liability insurance by the city does not constitute a waiver of the defense of sovereign immunity insofar as this defense bars recovery for damages caused by the performance of a governmental function in a negligent manner. Winston v. City of Austell, 123 Ga. App. 183, 179 S.E.2d 665 (1971).
Evidence did not show that the city waived the city's governmental immunity by purchasing liability insurance; thus, the city had governmental immunity on the individual's claims against the city arising out of the police officer's arrest of the individual for criminal trespass. Reese v. City of Atlanta, 261 Ga. App. 761, 583 S.E.2d 584 (2003).
Waiver by purchase of liability insurance.
- Even if spraying for mosquito eradication is a governmental function, if as provided for in Ga. L. 1960, p. 289, § 1 (see now O.C.G.A. § 33-24-51), the city secures insurance to cover liability for damages arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, under the municipality's management, control or supervision, whether in a governmental undertaking or not, the municipality's governmental immunity shall be waived to the extent of the amount of insurance so purchased. Mitchell v. City of St. Marys, 155 Ga. App. 642, 271 S.E.2d 895 (1980).
In a tort action for personal injuries and property damage arising from an auto collision filed against a city and the city's police officer, the trial court erred in granting a city summary judgment as: (1) O.C.G.A. § 40-6-6(d)(2) did not apply; and (2) the city waived the city's sovereign immunity to the extent that the city purchased liability coverage to cover the officer's actions in operating that officer's police car. But, the trial court properly granted summary judgment to the officer, given that the officer was engaged in a discretionary function of responding to an emergency situation at the time the accident at issue occurred. Weaver v. City of Statesboro, 288 Ga. App. 32, 653 S.E.2d 765 (2007), cert. denied, No. S08C0421, 2008 Ga. LEXIS 221 (Ga. 2008).
In a negligence action against a city by plaintiffs injured in a collision with an on-duty police officer, the city's purchase of a general liability insurance policy covering claims in excess of $250,000 waived the city's sovereign immunity to the limits of the policy; since the city did not have a self-insurance plan, participate in any sort of insurance fund or pool, or set aside funds for the payment of liability claims, plaintiffs could recover only damages exceeding the $250,000 threshold. McLemore v. City Council, 212 Ga. 862, 443 S.E.2d 505 (1994).
City was not entitled to sovereign immunity because the city's "Public Officials Errors and Omissions" insurance policy covered the wrongful termination claims brought by city employees; therefore, consistent with O.C.G.A. § 36-33-1(a), the city was deemed to have waived sovereign immunity to the extent of the limits of the city's insurance policy covering those claims. Owens v. City of Greenville, 290 Ga. 557, 722 S.E.2d 755 (2012).
Although a fact issue existed as to whether a city had waived the city's sovereign immunity by purchasing insurance that covered an arrestee's claims arising from an arrest for burglary, the claims for slander, fraud, false imprisonment, and racketeering failed because there was probable cause to make the arrest. Gray v. Ector, 541 Fed. Appx. 920 (11th Cir. 2013)(Unpublished).
Insufficient proof of liability insurance.
- Because there was no evidence of record that a city maintained liability insurance that would cover the occurrences forming the basis of the developers' claims, there was no waiver of the city's sovereign immunity pursuant to O.C.G.A. § 36-33-1(a); thus, sovereign immunity was a viable defense as to the city and the city officials acting in their official capacities. Wendelken v. JENK LLC, 291 Ga. App. 30, 661 S.E.2d 152 (2008).
Charter provision constitutional.
- A 1983 amendment to the charter of the consolidated local government of Columbus which provided that the tort liability of the consolidated government would be the tort liability applicable to counties was valid and constitutional. Bowen v. City of Columbus, 256 Ga. 462, 349 S.E.2d 740 (1986).
Waiver by municipality.
- According to the Georgia Supreme Court, Georgia municipalities may never waive a municipality's sovereign immunity by, for example, contracting to indemnify third parties without either express legislative authority or satisfying the requirements of O.C.G.A. § 36-33-1(a). CSX Transp., Inc. v. City of Garden City, 355 F.3d 1295 (11th Cir. 2004).
Unified city/county government was not a municipality for purposes of the waiver of sovereign immunity by operation of O.C.G.A. § 36-33-1 because the charter creating the unified government expressly provided that the government's tort and nuisance liability would follow the law and rules of tort liability applicable to counties in Georgia. Athens-Clarke County v. Torres, 246 Ga. App. 215, 540 S.E.2d 225 (2000).
No immunity for breach of contract.
- Municipal immunity is not a valid defense to an action for breach of contract. Precise v. City of Rossville, 261 Ga. 210, 403 S.E.2d 47 (1991).
Insufficient proof of insurance.
- Resident who brought a negligence and nuisance suit against a city had not shown that the city waived sovereign immunity under O.C.G.A. § 36-33-1 because a letter from a firm stating that the firm administered the city's insurance program did not suffice to show that the city had insurance. Gilbert v. City of Jackson, 287 Ga. App. 326, 651 S.E.2d 461 (2007).
Liability for contract and non-sovereign immunity torts.
- Contract that included indemnification provision was void because a city could not waive the city's sovereign immunity under O.C.G.A. § 36-33-1; although it was not clear whether the city could waive non-sovereign immunity torts and contract claims, because a train track and train owner confined itself to a sovereign immunity tort recovery theory while proceeding on only a contract claim without seeking leave to amend under Fed. R. Civ. P. 15(a), the plaintiffs' entire case against the city failed as a matter of law. CSX Transp., Inc. v. City of Garden City, 418 F. Supp. 2d 1366 (S.D. Ga. 2006), aff'd, 258 Fed. Appx. 287 (11th Cir. 2007).
Court must apply proper analysis.
- Judgment of the appellate court affirming the trial court's grant of summary judgment to a city based on sovereign immunity was vacated because the appellate court, like the trial court's ruling on the city's motion, gave no consideration to whether the alleged negligence by the city occurred in the performance of a governmental function and did not acknowledge or apply the definitions of governmental and ministerial functions as those terms relate to the city's sovereign immunity. Primas v. City of Milledgeville, 296 Ga. 584, 769 S.E.2d 326 (2015).
No contractual agreement established with city through statutes or ordinances.
- In a suit brought by taxi cab companies, the trial court properly granted the city's motion to dismiss because the taxi cab companies failed to establish that the statutes permitting the issuance of Certificates of Public Necessity and Convenience (CPNC), or the city's ordinances, created a clear and unequivocal intent by the city to create a contractual or franchise agreement that prevented the city allowing personal transportation network companies to operate in the city. Atlanta Metro Leasing, Inc. v. City of Atlanta, 353 Ga. App. 785, 839 S.E.2d 278 (2020).
Cited in Newton v. City of Moultrie, 39 Ga. App. 702, 148 S.E. 299 (1929); Ware County v. Cason, 189 Ga. 78, 5 S.E.2d 339 (1939); Hammock v. City Council, 83 Ga. App. 217, 63 S.E.2d 290 (1951); Rhodes v. Perlis, 83 Ga. App. 312, 63 S.E.2d 457 (1951); Caroway v. City of Atlanta, 85 Ga. App. 792, 70 S.E.2d 126 (1952); Hunter v. City of Atlanta, 212 Ga. 179, 91 S.E.2d 338 (1956); Poole v. City of Louisville, 107 Ga. App. 305, 130 S.E.2d 157 (1963); Mitchell v. City of Newnan, 125 Ga. App. 761, 188 S.E.2d 917 (1972); City of Hawkinsville v. Wilson & Wilson, Inc., 231 Ga. 110, 200 S.E.2d 262 (1973); Mason v. Town of Berlin, 128 Ga. App. 177, 196 S.E.2d 181 (1973); Morin v. City of Valdosta, 140 Ga. App. 361, 231 S.E.2d 133 (1976); City of Atlanta v. Fry, 148 Ga. App. 269, 251 S.E.2d 90 (1978); Barnett v. City of Albany, 149 Ga. App. 331, 254 S.E.2d 481 (1979); Martin v. City of Atlanta, 155 Ga. App. 628, 271 S.E.2d 882 (1980); DeWaters v. City of Atlanta, 169 Ga. App. 41, 311 S.E.2d 232 (1983); Corey Outdoor Adv., Inc. v. Board of Zoning Adjustments, 254 Ga. 221, 327 S.E.2d 178 (1985); Sinkfield v. Pike, 201 Ga. App. 652, 411 S.E.2d 889 (1991); Ellis v. City of Fairburn, 852 F. Supp. 1568 (N.D. Ga. 1994); Koehler v. City of Atlanta, 221 Ga. App. 534, 472 S.E.2d 91 (1996); CSX Transp. Inc. v. City of Garden City, 235 F.3d 1325 (11th Cir. 2000); Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341 (2001); City of Atlanta v. Heard, 252 Ga. App. 179, 555 S.E.2d 849 (2001); CSX Transp., Inc. v. City of Garden City, 391 F. Supp. 2d 1234 (S.D. Ga. 2005); City of Greensboro v. Rowland, 334 Ga. App. 148, 778 S.E.2d 409 (2015), cert. denied, No. S16C0305, 2016 Ga. LEXIS 154 (Ga. 2016); Williams v. DeKalb County, 308 Ga. 265, 840 S.E.2d 423 (2020).
Nonliability for Governmental Functions
Policy of section.
- Municipality performs governmental functions in the exercise of certain of the municipality's corporate powers, because such powers are exercised by the municipality for the benefit of the public generally, and in their exercise it represents and is an arm of the state, such as the municipality's exercise of powers pertaining to the public health and to the maintenance of charitable, penal, reformatory, and similar public institutions. However, when the municipality exercises only such powers and privileges as are peculiarly for the municipality's own benefit, or the benefit of the municipality's own citizens, or those of the municipality's immediate locality, the municipality is acting in a strictly corporate capacity. Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934); Watkins v. City of Toccoa, 54 Ga. App. 8, 189 S.E. 270 (1936).
Judicial functions.
- No action, in any form, can be maintained against a municipal corporation for an error in judgment when exercising judicial functions. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).
City was immune from liability under O.C.G.A. § 36-33-1(b) because the issuance of an arrest warrant was a judicial act performed by a judicial officer. Griffin v. City of Brunswick, (S.D. Ga. Nov. 30, 2005).
Rule of nonliability while performing delegated duties.
- When a municipality undertakes to perform for the state duties which the state itself might perform, but which have been delegated to the municipality, and in the exercise of such function a private citizen is injured by the negligence of servants while engaged in such work, no cause of action arises against the municipality. Mayor of Savannah v. Jordon, 142 Ga. 409, 83 S.E. 109 (1914).
Rule of nonliability generally.
- For acts done in the illegal performance of purely governmental functions, that is for failure to perform or errors in performing the government's legislative or judicial powers, as distinguished from neglect to perform or improper or unskillful performance of the government's ministerial duties, however illegally the authority may be exercised, a municipality is not liable. Brown v. City of Union Point, 52 Ga. App. 212, 183 S.E. 78 (1935); Foster v. Mayor of Savannah, 77 Ga. App. 346, 48 S.E.2d 686 (1948); City of Thomson v. Davis, 92 Ga. App. 216, 88 S.E.2d 300 (1955); Bagwell v. City of Gainesville, 106 Ga. App. 367, 126 S.E.2d 906 (1962); Turk v. City of Rome, 133 Ga. App. 886, 212 S.E.2d 459, aff'd, 235 Ga. 223, 219 S.E.2d 97 (1975).
Municipalities are not legally compellable or liable to pay claims arising by reason of negligence in the performance of the municipalities' governmental functions unless the legislature has delegated to the municipalities the power and authority to waive immunity from suit on claims arising because of negligence in the performance of such governmental functions. Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972).
When a homeowner claimed that the negligent repair of a sewer system caused a water main near a house to rupture, damaging the owner's home, the owner could not hold the city liable for the damage because the maintenance and repair of a sewer system was a governmental function, and, under O.C.G.A. § 36-33-1(a), the city could not be held liable for negligent acts of the city's employee in the performance of purely governmental functions. Goode v. City of Atlanta, 274 Ga. App. 233, 617 S.E.2d 210 (2005).
Distinction between governmental and ministerial duties.
- Between a municipality and the public, the question of liability depends on whether at the time of the injury sued for the municipality was engaged in a governmental or ministerial duty. Roberts v. Mayor of Savannah, 54 Ga. App. 375, 188 S.E. 39 (1936).
When duty is of purely public nature, intended for benefit of public at large, without pretense of private gain to the municipality, no liability will attach. Cornelisen v. City of Atlanta, 146 Ga. 416, 91 S.E. 415 (1917); Harrison Co. v. City of Atlanta, 26 Ga. App. 727, 107 S.E. 83 (1921).
Applicability to negligence of driver of garbage cart for board of health. Love v. City of Atlanta, 95 Ga. 129, 22 S.E. 29 (1894).
Applicability to negligence of driver of ambulance for city hospital. Watson v. City of Atlanta, 136 Ga. 370, 71 S.E. 664 (1911).
Applicability to negligence of firefighter. Rogers v. City of Atlanta, 143 Ga. 153, 84 S.E. 555 (1915).
City's decision not to revoke an occupational tax certificate.
- City was entitled to sovereign immunity against a claim by a decedent's survivors that the city allowed a known nuisance in the form of an unauthorized and unlicensed nightclub to continue attracting drugs and crime, resulting in the decedent's shooting death outside the nightclub; the city was exercising a governmental function when the city opted not to revoke the nightclub's occupational tax certificate and, therefore, was protected by immunity under O.C.G.A. § 36-33-1(b). City of Albany v. Stanford, 347 Ga. App. 95, 815 S.E.2d 322 (2018).
Acts of mayor in fixing bond.
- Municipal corporation is not liable for the act of the mayor in requiring the plaintiff to give a larger bond than the law authorized. In fixing the amount of the bond, the mayor acted in a judicial capacity, and for an error committed in the exercise of judicial authority a municipal corporation is not liable. Gray v. Mayor of Griffin, 111 Ga. 361, 36 S.E. 792 (1900).
Traffic signals.
- Trial court properly granted summary judgment to a city on a parent's negligence claim against the city stemming from a child's serious automobile accident at a known dangerous intersection that was inappropriately signaled because the city was immune from suit as the issue of whether to install a traffic signal at the intersection was a discretionary act, entitling the city to sovereign immunity; further, a successful tax referendum to fund a new traffic light did not create a duty to install a traffic light at the intersection before completing other projects. Riggins v. City of St. Marys, 264 Ga. App. 95, 589 S.E.2d 691 (2003).
Officer acting in official capacity applying sovereign immunity.
- Trial court erred in denying a city and the city's police officers summary judgment as to an arrestee's claims against the city and the officers in the officers' official capacities because the claim against one of the officers in the officer's official capacity was, in reality, a suit against a governmental entity and subject to a claim of sovereign immunity, and no genuine issue of fact remained as to whether the city waived the city's sovereign immunity pursuant to O.C.G.A. § 33-24-51; the alleged negligence was unrelated to the use of a motor vehicle. Campbell v. Goode, 304 Ga. App. 47, 695 S.E.2d 44 (2010).
City immune in action alleging negligence and maintenance of nuisance.
- In an action alleging negligence and maintenance of a nuisance against the city, the trial court did not err in granting summary judgment to the city on the nuisance claim because the actions challenged, including disregarding alcohol violations, involved a governmental function to which sovereign immunity applied and because the insurance policy did not cover the claims, there was no legislative waiver of sovereign immunity. Gatto v. City of Statesboro, 353 Ga. App. 178, 834 S.E.2d 623 (2019).
Liability for Ministerial Functions
Second sentence of subsection (b) waives immunity whenever a municipality undertakes a proprietary function. Miree v. United States, 526 F.2d 679 (5th Cir.), different results reached on rehearing, 538 F.2d 643 (5th Cir. 1976), judgment en banc vacated, 433 U.S. 25, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977).
Corporate capacity defined.
- When a municipality exercises only such powers and privileges as are peculiarly for the municipality's own benefit, or the benefit of the municipality's own citizens, or those of the municipality's immediate locality, the municipality is acting in a strictly corporate capacity. Watkins v. City of Toccoa, 54 Ga. App. 8, 189 S.E. 270 (1936).
Rule of liability generally.
- Municipal corporation in the exercise of the municipality's corporate functions performs two classes of service: (1) governmental duties; and (2) private, corporate, or ministerial, duties. It seems well settled in this state that in the negligent performance of a municipality's governmental duties a municipal corporation is not liable in damages to one who is injured while the municipality is engaged in the performance of such duties. But a different rule obtains if in the exercise or neglect of the municipality's ministerial duties one is negligently injured by a municipal corporation. Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934); Watkins v. City of Toccoa, 54 Ga. App. 8, 189 S.E.2d 270 (1936); Taylor v. King, 104 Ga. App. 589, 122 S.E.2d 265 (1961); Bituminous Cas. Corp. v. R.D.C., Inc., 334 F. Supp. 1163 (N.D. Ga. 1971).
Municipality is immune from suit for acts the municipality performs which are authorized by law and executed in accordance with the judgment or conclusion reached by the municipal authority in the exercise of a governmental function. However, a municipality is liable when there is negligence or error in the execution of plans or specifications, adopted or prescribed by a municipality, that is, for negligence or error in the exercise of a ministerial duty, a municipal government is not liable for negligence in the exercise of a governmental function. Mayor of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978).
Payment of salary to government employees is a perfunctory administrative duty not included under the category of government functions and is not barred by any statutory immunity. Smith v. City of Atlanta, 167 Ga. App. 458, 306 S.E.2d 720 (1983).
To bar a municipal employee from recovering pay for services the employee performed by allowing the municipality to claim statutory immunity would violate the prohibition against the impairment of a contract which is found in both the state and federal constitutions. Smith v. City of Atlanta, 167 Ga. App. 458, 306 S.E.2d 720 (1983).
Waiver of liability for ministerial duties does not apply to counties.
- Waiver of sovereign immunity for claims alleging the negligent performance of ministerial duties only applies to cities and does not apply to counties. O.C.G.A. § 36-33-1(b) provides that for neglect to perform or improper or unskillful performance of their ministerial duties, municipal corporations shall be liable. O.C.G.A. § 36-1-4 sets out the sovereign immunity of counties and contains no such waiver for ministerial duties. Klingensmith v. Long County, 352 Ga. App. 21, 833 S.E.2d 608 (2019).
Facility designed to maximize revenues.
- Municipality may be liable for failure to safely maintain a public facility, even though the municipality is not expressly given the power to operate the facility primarily as a source of revenue, if the facility is in fact designed to "maximize" revenues rather than to be operated primarily for the general good of the public; the duty of proper maintenance would, in such a case, be ministerial. Cleghorn v. City of Albany, 184 Ga. App. 732, 362 S.E.2d 386, cert. denied, 184 Ga. App. 909, 362 S.E.2d 386 (1989).
When city maintained a market house the city is under a duty to keep the market house in a safe condition, the market house being property of the city and used for the city's revenues. The city's duty is ministerial and the city is liable for injuries sustained by the plaintiff by stepping through a hole in the floor. Mayor of Savannah v. Cullens, 38 Ga. 334 (1868).
Improvement of streets by city.
- Defense of sovereign immunity was not available to the city, when the city's management of the project included hiring the contractor and placing the city's on-site construction inspector on the property to actively oversee the construction work on a daily basis. Consequently, the city was performing a ministerial function in improving the streets and sidewalks. City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 421 S.E.2d 113 (1992).
Applicability to neglect of duty of city officer in maintaining waterworks. City Council v. Mackey, 113 Ga. 64, 38 S.E. 339 (1901).
Applicability to failure of duty of officer in maintaining city electric light wires and plant. Sedlmeyr v. City of Fitzgerald, 140 Ga. 614, 79 S.E. 469 (1913).
Operation of stone quarry.
- Operation by the city of a stone quarry which the city owns is purely ministerial. City Council v. Owens, 111 Ga. 464, 36 S.E. 830 (1900).
Payment to a corporation for work performed under a written contract with a city is a ministerial duty not included under the category of government functions and not barred by any statutory immunity. McCrary Eng'g Corp. v. City of Bowdon, 170 Ga. App. 462, 317 S.E.2d 308 (1984).
Failure to provide medical care to inmate.
- In a negligence action filed by an inmate based on the city's and the police chief's failure to provide medical care to the inmate, because the provision of medical care to inmates in the city's and the police chief's custody was a ministerial act, as the duty was imposed by statute, and medical care was a fundamental right of inmates in custody, sovereign or governmental immunity was not applicable, and the trial court did not err by denying the city's and the police chief's motion to dismiss for failure to state a claim based on sovereign immunity. City of Atlanta v. Mitcham, 262 Ga. App. 754, 586 S.E.2d 430 (2013).
The care of inmates in the custody of a municipal corporation is a governmental function for which sovereign immunity has not been waived. City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015).
Inmate precluded from pursuing negligence claim.
- Appellate court erred by affirming a trial court's denial of a city's motion to dismiss an inmate's complaint because the care of inmates in the custody of a municipal corporation is a governmental function for which sovereign immunity has not been waived; therefore, the inmate was precluded from pursuing negligence claims. City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015).
Claims arising from improper detention.
- In a detainee's suit against a sheriff, county, and city arising out of the detainee's improper detention, the defendants' motion to dismiss was denied as to the sheriff's individual liability for violations of federal law, and for failure to update the detainee's criminal record as required by O.C.G.A. § 42-4-7 and bring the detainee before a judicial officer; however, claims against the city and county were dismissed based on immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX(d) and Ga. Const. 1983, Art. IX, Sec. II, Para. IX. Purvis v. City of Atlanta, 142 F. Supp. 3d 1337 (N.D. Ga. 2015).
Nuisances
Liability for personal injury from continuing nuisance.
- A line of cases hold municipalities liable for personal injuries resulting from a continuing nuisance despite this section must be read to be a common-law exception to the general statutory rule that municipalities are immune. Miree v. United States, 526 F.2d 679 (5th Cir.), different results reached on rehearing, 538 F.2d 643 (5th Cir. 1976), judgment en banc vacated, 433 U.S. 25, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977).
Rule of nonliability is not to be confused with nuisance. Cannon v. City of Macon, 81 Ga. App. 310, 58 S.E.2d 563 (1950), later appeal, 89 Ga. App. 484, 79 S.E.2d 816 (1954).
To be held liable for maintenance of a nuisance, a 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; the municipality must have knowledge or be chargeable with notice of the dangerous condition. Mayor of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978).
What is nuisance.
- That which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance. Thus, if the act is lawful in itself, the act becomes a nuisance only when conducted in an illegal manner to the hurt, inconvenience, or damage of another. Mayor of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978).
Negligence not essential ingredient in action against municipality
- When a municipality in the exercise of the municipality's functions, both governmental and ministerial, creates a nuisance which is specially injurious to an individual, such individual may have a cause of action for damages, and negligence is not an essential ingredient of the action. Foster v. Mayor of Savannah, 77 Ga. App. 346, 48 S.E.2d 686 (1948); Ingram v. City of Acworth, 90 Ga. App. 719, 84 S.E.2d 99 (1954); City of Thomson v. Davis, 92 Ga. App. 216, 88 S.E.2d 300 (1955); Stanley v. City of Macon, 95 Ga. App. 108, 97 S.E.2d 330 (1957); Mayor of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978); Duffield v. DeKalb County, 242 Ga. 432, 249 S.E.2d 235 (1978); Leake v. City of Atlanta, 146 Ga. App. 57, 245 S.E.2d 338 (1978); Porter v. City of Gainesville, 147 Ga. App. 274, 248 S.E.2d 501 (1978); City of Columbus v. Myszka, 246 Ga. 571, 272 S.E.2d 302 (1980).
Sovereign immunity for negligence but not nuisance.
- Trial court erred in not granting a city's motion to dismiss the negligence claims against the city because the city was exercising a governmental function when the city demolished an abandoned house which was claimed to be a nuisance; therefore, the city was entitled to sovereign immunity on those claims. City of Atlanta v. Durham, 324 Ga. App. 563, 751 S.E.2d 172 (2013).
No right to create and maintain nuisance.
- While municipal corporations do have certain sovereign governmental powers which cannot be superintended by the courts, in the exercise of such powers municipal corporations have no right to create and maintain a nuisance hurtful to private citizens. Cannon v. City of Macon, 81 Ga. App. 310, 58 S.E.2d 563 (1950), later appeal, 89 Ga. App. 484, 79 S.E.2d 816 (1954).
Training of police officers.
- Plaintiff's claims against the city that training of the city's police in the operation of police cars created a nuisance failed as a one-time occurrence of a car collision was insufficient evidence to prove a specific failure or specific negligence in training. Banks v. Mayor of Savannah, 210 Ga. App. 62, 435 S.E.2d 68 (1993).
Municipality may be liable for trespass in execution of governmental function only if such trespass constitutes a nuisance or constitutes the taking or damaging of private property for public use without just and adequate compensation first being paid. City of Atlanta v. Minder, 83 Ga. App. 295, 63 S.E.2d 420 (1951).
Adjoining landowners.
- Municipality, as owner of real estate, owes the same duties to the owners of neighboring lands, with respect to the use of the municipality's own, as are owed by a private owner of land, and hence a municipality is liable to other landowners when it makes such use of the municipality's land as to constitute a nuisance, regardless of whether the municipality is engaged in performing a governmental or private function. This rule is equally applicable whether the actual injury is personal or property damage. Stanley v. City of Macon, 95 Ga. App. 108, 97 S.E.2d 330 (1957).
Increased noise and odors.
- Term property comprehends not only the thing possessed, but also, in strict legal parlance, means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy, and dispose of the land or thing, and the corresponding right to exclude others from the use. Therefore, no physical invasion damaging to the property need be shown, only an unlawful interference with the right of the owner to enjoy the owner's possession. Thus, increased noise and odors may result in an inverse condemnation of property by interfering with the use and enjoyment of land and endangering health. Duffield v. DeKalb County, 242 Ga. 432, 249 S.E.2d 235 (1978).
Overflowing water.
- When a municipality, in constructing a public improvement, obstructs the natural flow of surface water so as to cause the water to pond upon the land of an abutting owner, and the city provides no means of outlet for such water, the city becomes liable to the property owner for any damages occasioned to the landowner's property thereby. If the ponding of such water on private property constitutes a nuisance, which the city fails to abate, the municipality may be held liable. City of Rome v. Brown, 54 Ga. App. 6, 186 S.E. 708 (1936), aff'd, 184 Ga. 34, 190 S.E. 787 (1937).
Sewage.
- When the city knowingly allowed human sewage from the city's sewerage system to flow across appellee's property for many months, the case was one of nuisance for which the city was liable and not a case of discretionary nonfeasance. City of Columbus v. Myszka, 246 Ga. 571, 272 S.E.2d 302 (1980).
Failure to provide holding cell.
- Mere failure to provide a holding cell at a police station is not a nuisance for which a municipality may be liable to one allegedly injured thereby. McDay v. City of Atlanta, 204 Ga. App. 621, 420 S.E.2d 75, cert. denied, 204 Ga. App. 922, 420 S.E.2d 75 (1992).
Municipality not liable for failure to abate nuisance.
- As a general rule, the duty imposed upon municipalities to abate nuisances existing upon private property within the municipality's limits is a duty which is judicial in the municipality's nature, and for failure to perform this duty, or for errors in the performance of the duty, the municipality is not liable in damages. Mayor of Dalton v. Wilson, 118 Ga. 100, 44 S.E. 830 (1903).
When nuisance is in or near public street, the municipality is liable to one who suffers special damage from the failure of the city to abate such nuisance. Parker v. Mayor of Macon, 39 Ga. 725 (1869); Mayor of Dalton v. Wilson, 118 Ga. 100, 44 S.E. 830 (1903).
Officers and Employees
This section should be construed together in connection with the section's cognate sections, and as intending to declare that municipal liability should attach only for neglect to perform, or for improper or unskillful performance of "ministerial duties." This construction would leave intact the common-law doctrine, frequently applied in this state before and since adoption of the Code, of nonliability for conduct of officers, agents, and servants of municipal corporations in respect to duties devolving upon the officers, agents, and servants in virtue of the sovereign or governmental functions of the municipality. Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934).
Rule of nonliability for governmental functions.
- When an injury sustained is inflicted because of the misfeasance of an agent of a corporation while engaged in the exercise of what are termed "governmental functions of a corporation," the city is not liable. When injuries are inflicted by the agent of a corporation acting for the corporation in the discharge of a duty when the corporation is engaged in the exercise of some private franchise, or some franchise conferred upon the corporation by law which the corporation may exercise for the private profit or convenience of the corporation or for the convenience of the corporation's citizens alone, in which the general public has no interest, a right of recovery lies against the city. Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934); Roberts v. Mayor of Savannah, 54 Ga. App. 375, 188 S.E. 39 (1936); City of Atlanta v. Garner, 56 Ga. App. 435, 192 S.E. 841 (1937); Banks v. City of Albany, 83 Ga. App. 640, 64 S.E.2d 93 (1951).
Police pursuit of stolen vehicle.
- Summary judgment for city on ground of sovereign immunity was proper in case of decedent who was killed when struck by a stolen car which was being chased by city police officers since the death did not arise from the use, maintenance, or operation of the city's motor vehicle but was due to the negligence or wilful misconduct of a fleeing felon in running a red light. Peeples v. City of Atlanta, 189 Ga. App. 888, 377 S.E.2d 889 (1989).
Liability for acts of officers contrary to law.
- When an act is done by the officers and agents of a municipal corporation, which is within the corporate power and might have been lawfully accomplished had the municipal authorities proceeded according to law, the corporation will be liable for the consequences of an act of such officers or agents proceeding contrary to law or in an irregular manner. It is otherwise when the act complained of lies wholly outside of the general or special powers of the corporation. Langley v. City Council, 118 Ga. 590, 45 S.E. 486 (1903); McDonald v. Butler, 10 Ga. App. 845, 74 S.E. 573 (1912).
Failure to provide police protection.
- When failure to provide police protection is alleged, there can be no liability based on a municipality's duty to protect the general public. However, when there is a special relationship between the individual and the municipality which sets the individual apart from the general public and engenders a special duty owed to that individual, the municipality may be subject to liability for the nonfeasance of the municipality's police department. City of Rome v. Jordan, 263 Ga. 26, 426 S.E.2d 861 (1993).
Deputy sheriff was not liable to the widow of a motorist killed in a collision with a drunk driver whom the deputy had failed to arrest or otherwise restrain from driving; although the deputy may have been present at the scene of the crime in that the deputy observed an intoxicated driver, the deputy's duty to enforce drunk driving laws was to the public in general, not specifically to the motorist who was killed hours later in a collision with the intoxicated driver at another location. Landis v. Rockdale County, 212 Ga. App. 700, 445 S.E.2d 264 (1994).
Arrest.
- In an action arising out of an arrest, despite the way the arrestee was treated, the trial court properly dismissed a complaint against a county and granted summary judgment on the same complaint against a city on sovereign immunity grounds since the arrestee failed to show that the immunity had been waived. Scott v. City of Valdosta, 280 Ga. App. 481, 634 S.E.2d 472 (2006).
In an arrestee's state law claims, a city was not liable for actions of the city's police officers because the officers engaged in protected ministerial functions. Lavassani v. City of Canton, 760 F. Supp. 2d 1346 (N.D. Ga. 2010).
Municipalities are liable for the acts of the municipalities' officers, agents, and servants only: (a) in the performance of any function if a statute specifically provides for such liability; (b) for neglect to perform, or improper or unskillful performance of ministerial duties; (c) for the performance of governmental functions when the function amounts to the taking or damaging of private property for public purposes without first making adequate compensation therefor, or the creation of a nuisance dangerous to the life and health of persons because of its proximity to people in the enjoyment of their property. Stubbs v. City of Macon, 78 Ga. App. 237, 50 S.E.2d 866 (1948).
Employee's personal liability.
- Government employee who commits a wrongful or tortious act violates a duty the employee owes to the one who is injured and is personally liable, even though the municipal employer may be exempt from liability under the doctrine of governmental immunity. Foster v. Crowder, 117 Ga. App. 568, 161 S.E.2d 364 (1968).
Trespass of officers.
- Municipal corporation is not liable in damages for a trespass committed by the municipality's officers in wrongfully disinterring and removing the remains of a person buried in a cemetery owned and controlled by the city, unless the act was performed in pursuance of and to effectuate some corporate power conferred by the municipal charter. McDonald v. Butler, 10 Ga. App. 845, 74 S.E. 573 (1912).
Government immune from liability based on officer's actions.
- Doctrine of governmental immunity protected the city from liability for the actions of the city's employees, including the police officer who arrested the individual for criminal trespass in the discharge of the officer's lawful duties, and, thus, the city was protected by that immunity from the arrested individual's claims against the city. Reese v. City of Atlanta, 261 Ga. App. 761, 583 S.E.2d 584 (2003).
Notice of change of group health insurance carrier.
- City's duty to give reasonable notice to government employees that the city intended to change group health insurance carriers was a perfunctory administrative duty not included under the category of government functions and not barred by any statutory immunity. City of Brunswick v. Carney, 187 Ga. App. 634, 371 S.E.2d 201, cert. denied, 187 Ga. App. 907, 370 S.E.2d 194 (1988).
Summary judgment based on sovereign immunity improper.
- Trial court erred in granting a police officer and a city summary judgment on the ground that the officer was performing a discretionary duty and the city was protected by sovereign immunity in an arrestee's action to recover damages for injuries sustained when the officer ran over the arrestee's foot with a patrol car during the arrest. A jury could find that the officer did not act intentionally, but rather, negligently came too close to the arrestee. Moreover, there was an issue of fact on whether the arrestee assumed the risk of injury when the arrestee had not threatened the officer with deadly force. Davis v. Batchelor, 300 Ga. App. 662, 686 S.E.2d 314 (2009).
Parks and Recreation
Park as governmental function.
- When a city maintains a park primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large, the city's operation is by virtue of the governmental powers of the municipality, and no municipal liability would attach to the nonperformance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public. Cornelisen v. City of Atlanta, 146 Ga. 416, 91 S.E. 415 (1917); Harvey v. Mayor of Savannah, 59 Ga. App. 12, 199 S.E. 653 (1938); Porter v. City of Gainesville, 147 Ga. 274, 248 S.E.2d 501 (1978); City Council v. Lee, 153 Ga. App. 94, 264 S.E.2d 683 (1980).
In the absence of charter authority to the contrary, the maintenance of a park by a municipality is a governmental function, and the municipality is not liable for the nonperformance or improper performance of the municipality's officers, agents, or servants in connection therewith. Stubbs v. City of Macon, 78 Ga. App. 237, 50 S.E.2d 866 (1948).
Parks distinguished from streets.
- Legislative act placing city squares under the exclusive control and management of the park and tree commission of the city as to "all matters and things relating to the care, preservation, improvement, good order, and regulation generally" of the squares, fixed their status as parks, the control and management of which were in the exercise of a government function. Consequently, no liability attached to the city when, as alleged in the petition in the present case, the plaintiff was injured on a sidewalk in a square because of the alleged negligence of the city in the city's maintenance thereof, and the court properly sustained the general demurrer (now motion to dismiss) to the petition. Harvey v. Mayor of Savannah, 59 Ga. App. 12, 199 S.E. 653 (1938).
Operation of public recreational swimming facilities, primarily for public benefit rather than for revenue production, is a governmental function, so cities are shielded from negligence claims by the doctrine of governmental immunity. Robinson v. City of Decatur, 253 Ga. 779, 325 S.E.2d 752 (1985), cert. denied and appeal dismissed, 484 U.S. 998, 108 S. Ct. 685, 98 L. Ed. 2d 638 (1988); Gooden v. City of Atlanta, 242 Ga. App. 786, 531 S.E.2d 364 (2000).
Auditorium as governmental function.
- Municipality is not liable to one injured by the negligence of the municipality's employees in the operation of a city auditorium, when, at the time of the injury, the municipality, through the municipality's governing officials had permitted the use of the auditorium for public purposes and discussion of matters connected with rehabilitation loans to be made by the federal government, in that the city was engaged in the exercise of a purely governmental function in the maintenance and operation of the auditorium. The fact that the auditorium might be used for profit on other occasions would not render the city liable to one injured at the time the auditorium was being used strictly for governmental purposes. Roberts v. Mayor of Savannah, 54 Ga. App. 375, 188 S.E. 39 (1936).
When it is alleged that in operating a city auditorium the municipal corporation derived profit by renting or leasing the auditorium from time to time for private purposes, in the absence of an allegation that the city had charter authority to rent or lease such public building primarily as a source of revenue, no liability attaches to the city when one is injured because of the negligence of the city's agents while at work in repairing such building. City of Atlanta v. Garner, 56 Ga. App. 435, 192 S.E. 841 (1937); Granat v. Mayor of Savannah, 59 Ga. App. 276, 200 S.E. 311 (1938).
Golf course.
- City has governmental immunity from tort liability in the operation of a golf course. City of Atlanta v. Mapel, 121 Ga. App. 567, 174 S.E.2d 599 (1970).
Paving of a walkway along the outer edge of a city park, but within the park, by the municipality in connection with the installation of automobile parking meters so as to leave a water meter projecting above the surface of the paved walkway in a manner dangerous to pedestrians using the walkway amounts to a governmental function in connection with the construction and maintenance of a city park. The fact that the area is also used in connection with parking meters providing revenue for the city does not make the function ministerial, this function also being governmental. Stubbs v. City of Macon, 78 Ga. App. 237, 50 S.E.2d 866 (1948).
Playground equipment.
- Operation and maintenance of playground equipment so designed as to be dangerous to life or health is a nuisance for which an action against a municipality may be maintained. Porter v. City of Gainesville, 147 Ga. App. 274, 248 S.E.2d 501 (1978).
Public bathing beach.
- Municipality is not liable for the negligent performance, or for the failure to perform the municipality's duty in the maintenance of a public bathing beach and appurtenances thereto, for whatever duty exists to maintain the beach and the beach's appurtenances is in virtue of the municipality's governmental powers and no municipal liability would attach on account of the municipality's negligent or unskillful performance of these duties. Tarver v. Savannah Beach, 96 Ga. App. 491, 100 S.E.2d 616 (1957).
Dog show in city auditorium.
- Maintenance by the city of a dog show in the city auditorium, as would be the maintenance by the city of a menagerie in one of the city's public parks, or the maintenance of any other show for the pleasure and entertainment of the public and not for pecuniary gain or profit, is the performance of a governmental power. Granat v. Mayor of Savannah, 59 Ga. App. 276, 200 S.E. 311 (1938).
Sufficiency of petition.
- In a suit against a municipality for wrongful death of plaintiff's husband while hauling lumber for construction of dog kennels in aid of a dog show which was being put on by his employer in the city's auditorium, petition failed to allege under what conditions the dog show was being put on, whether the show was being put on or maintained by the authority of the city in the performance of the city's governmental function, or whether the city in transporting lumber was engaged in a purely ministerial duty; thus, the petition failed to set out a cause of action. Granat v. Mayor of Savannah, 59 Ga. App. 276, 200 S.E. 311 (1938).
Roads and Bridges
General rule of law is that municipal corporation is bound to keep the municipality's streets and sidewalks in reasonably safe condition for travel in ordinary modes, by night as well as by day; and if the municipality fails to do so the municipality is liable in damages for injuries sustained in consequence. City of Rome v. Brinkley, 54 Ga. App. 391, 187 S.E. 911 (1936); Mayor of Buford v. Medley, 58 Ga. App. 48, 197 S.E. 494 (1938); McKay v. City of Atlanta, 80 Ga. App. 797, 57 S.E.2d 432 (1950).
Duty to keep sidewalks safe.
- Law places upon municipality duty of keeping sidewalks safe for travel in ordinary manner. Bailey v. Wohl Shoe Co., 128 Ga. App. 372, 196 S.E.2d 677 (1973).
If city has notice of dangerous defect in sidewalk, it is the city's duty to exercise ordinary care in remedying the sidewalk or in placing safeguard about the sidewalk. City of Rome v. Brinkley, 54 Ga. App. 391, 187 S.E. 911 (1936).
Actual notice unnecessary when defect of long duration.
- When a defect in a street has existed for such a length of time that the city in the exercise of ordinary diligence ought to have discovered and remedied the defect, actual notice is unnecessary. Mayor of Buford v. Medley, 58 Ga. App. 48, 197 S.E. 494 (1938).
City is liable in damages for injuries sustained by the city's failure to act, and this is true regardless of the cause of the defect, if the city knew or should have known of the defect in time to repair the defect or give warning of the defect's existence. This notice may be presumed if the defect has existed for such length of time that by reasonable diligence in the performance of their duties the proper municipal authorities could have discovered the defect, and in such event proof of actual notice is unnecessary. McKay v. City of Atlanta, 80 Ga. App. 797, 57 S.E.2d 432 (1950).
Even though the defendant city would not be liable for failure to erect signs and a barricade at an intersection (the exercise of a governmental function as charged by the court), nevertheless, it would be liable for defects in the city's streets existing for a sufficient period of time so that in the exercise of ordinary care the municipal corporation should have reasonably become aware of the defect's existence. Columbus v. Preston, 155 Ga. App. 379, 270 S.E.2d 909 (1980).
Adoption by municipality of plan to grade streets a quasi-judicial act.
- Adoption by a municipal corporation of a plan for grading the streets and sidewalks of a city is a quasi-judicial act, and if the plan adopted is erroneous, the city cannot be held liable to a private person who is injured thereby. If the execution of this plan - the construction of the pavement - is unskillful or negligent, the city is liable for the construction as a ministerial duty. Rogers v. City of Atlanta, 61 Ga. App. 444, 6 S.E.2d 144 (1939).
Laying out and construction of streets a governmental function.
- While it is the duty of a city to keep the city's streets and sidewalks in a safe condition for travel in the ordinary modes, by night as well as by day, the laying out and construction of city streets is a governmental function, and a city will not be liable for an injury upon the theory merely that the city had constructed and was maintaining a dangerous intersection at a place where one street entered at right angles without extending beyond another street. Lundy v. City Council, 51 Ga. App. 655, 181 S.E. 237 (1935).
Governmental immunity not in issue when defect in public road alleged.
- When a bus passenger is injured when the passenger's arm, which is propped in an open bus window, is wedged between the bus window frame and a power pole installed by an electric company under a franchise agreement with a city, and the city asserts that the city granted the franchise in exercise of the city's legislative powers for which the city cannot be held liable under O.C.G.A. § 36-33-1, the city's claim of governmental immunity is not the issue; the issue instead is the liability of the city under O.C.G.A. § 32-4-93 for the alleged defect in a public road in the city's municipal street system. Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528, 307 S.E.2d 47 (1983).
Deciding whether to erect traffic control sign or to maintain the sign after installation is an exercise of a governmental function by a municipality and it is not liable for any negligent performance of this function. Christensen v. Floyd County, 158 Ga. App. 274, 279 S.E.2d 723 (1981).
Operation and maintenance of traffic lights and other traffic control devices is a governmental function conducted on behalf of the public safety and for the negligent performance of which municipal corporations are not liable. Such functions are not related to maintenance of the streets as such, and liability of a municipality for the negligent failure to maintain a stop sign after the sign is once erected cannot be predicated on the theory that it is a part of street maintenance. Arthur v. City of Albany, 98 Ga. App. 746, 106 S.E.2d 347 (1958); Cyr v. Mayor of Savannah, 188 Ga. App. 261, 372 S.E.2d 659 (1988).
Operation of a traffic light conducted on behalf of the public safety is a governmental function for the negligent performance of which the city is not liable. City of Rome v. Potts, 45 Ga. App. 406, 165 S.E. 131 (1932).
Stop sign.
- Driver's allegations of negligence against a city for negligent maintenance of a stop sign, which was allegedly obscured by foliage, were subject to summary judgment based on the city's sovereign immunity pursuant to O.C.G.A. § 36-33-1(b). The driver's nuisance claim was barred because the driver failed to show the city's awareness of a problem with the stop sign. Albertson v. City of Jesup, 312 Ga. App. 246, 718 S.E.2d 4 (2011), cert. denied, No. S12C0398, 2012 Ga. LEXIS 245 (Ga. 2012).
Placement of utility pole near roadway.
- City and electrical membership corporation carried the city's and corporation's burden of showing that a driver's own negligence was the sole proximate cause of the driver's collision with a utility pole located more than nine feet from the roadway; therefore, summary judgment for the city and corporation was proper. Kecskes v. City of Mt. Zion, 300 Ga. App. 348, 685 S.E.2d 329 (2009).
Setting speed limit.
- Governing body of municipality, which set the speed limit challenged by an accident victim, could not be held liable for any error in judgment that body may have made in so doing. Reid v. City of Hogansville, 202 Ga. App. 131, 413 S.E.2d 457 (1991).
Cleaning of streets and removal of garbage therefrom and from residences abutting on streets and sidewalks are governmental functions in the performance of which the municipality incurs no liability for the acts of the municipality's officers and employees. City of Brunswick v. Volpain, 67 Ga. App. 654, 21 S.E.2d 442 (1942).
Removal of debris from streets
- City is in exercise of governmental function in removing "sweepings" from streets for the reason that such act is conducive to the good health of the community and the public at large. Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934).
Operation of toll bridge is ministerial function. Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934).
Fire hose lying on street part of performance of governmental function.
- When city's fire department was engaged in extinguishing a fire when plaintiff motorcyclist was injured by running into a fire hose lying on the street, the employees and agents of the defendant city were engaged in a governmental function to the extent that the defendant is not liable in damages for the fire department's negligent acts. Clay v. City of Rome, 74 Ga. App. 754, 41 S.E.2d 337 (1947).
Inconsistent charter provision of no use as defense.
- Insofar as charter provisions relieved a city from liability for negligence in the maintenance of the city's streets, such provision was inconsistent with general law of force and effect in the state, and the inhibition contained in the state Constitution against the passage of special laws in conflict with existing general law precluded raising of such charter provisions as a defense to personal injury action against the city. City of Macon v. Harrison, 98 Ga. App. 769, 106 S.E.2d 833 (1958).
Relief of abutting property owner from liability.
- Placing of responsibility upon municipalities relieves an abutting property owner of liability unless the owner caused or actively participated in causing the obstruction or defect in the street or sidewalk. Reed v. Batson-Cook Co., 122 Ga. App. 803, 178 S.E.2d 728 (1970).
Tree limb crashing on pedestrian.
- City was not entitled to summary judgment on the pedestrian's claims for injuries suffered when a tree limb crashed on the pedestrian as the pedestrian walked on a city street because maintenance of the streets was a ministerial duty, O.C.G.A. § 36-33-1(b), required by O.C.G.A. § 32-4-93(a), and there was evidence that the tree was visibly decayed or dying. City of Fitzgerald v. Caruthers, 332 Ga. App. 731, 774 S.E.2d 777 (2015).
City could be liable for dock collapse, but had no notice of any defect.
- Although a city could be liable under O.C.G.A. § 32-4-93(a) for failure to maintain a dock that collapsed, injuring the plaintiffs, because the dock fell within the definition of "public road" in O.C.G.A. § 32-1-3, there was no evidence that the city had notice of any defect in the dock, and the plaintiffs' expert affidavit did not identify any defect. Therefore, the city was properly granted summary judgment on immunity grounds. Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 834 S.E.2d 593 (2019).
Defect is question for jury.
- Whether a defect or hole in a city street was such as to give a right of action to a person injured thereby is ordinarily a question for the jury, since it is a complicated question of fact involving the depth of the hole or defect, the hole's appearance to travelers on the street, and the danger which might have been anticipated and guarded against by the city in the exercise of reasonable forethought. Mayor of Buford v. Medley, 58 Ga. App. 48, 197 S.E. 494 (1938).
Whether by the existence of a defect in a street or sidewalk such street or sidewalk was not in a reasonably safe condition, and whether the city knew or ought to have known of the defect in time to repair the defect, or give warning of the defect's existence, are ordinarily questions for determination by a jury. McKay v. City of Atlanta, 80 Ga. App. 797, 57 S.E.2d 432 (1950).
Sewers
Collection and disposition of sewerage is a governmental function, and there is accordingly no cause of action for the improper erection and maintenance of a sewer on the theory of negligence alone, because damage resulting from the exercise of a governmental function in a negligent manner would constitute damnum absque injuria. Ingram v. City of Acworth, 90 Ga. App. 719, 84 S.E.2d 99 (1954).
Sewers as governmental function.
- Duties of municipal authorities in adopting a general plan of drainage, and in determining when, where, and of what size, and at what level drains or sewers shall be built, are of a quasi-judicial nature, involving the exercise of deliberate judgment and wide discretion; and the municipality is not liable for an error of judgment on the part of the authorities in locating or planning such improvements. City of Atlanta v. Trussell, 21 Ga. App. 340, 94 S.E. 649 (1917); Harrison Co. v. City of Atlanta, 26 Ga. App. 727, 107 S.E. 83 (1921); Rogers v. City of Atlanta, 61 Ga. App. 444, 6 S.E.2d 144 (1939).
Construction, installation, and maintenance of a sewer-drainage system (including that for surface water) is a governmental function. Foster v. Crowder, 117 Ga. App. 568, 161 S.E.2d 364 (1968); Turk v. City of Rome, 133 Ga. App. 886, 212 S.E.2d 459, aff'd, 235 Ga. 223, 219 S.E.2d 97 (1975); Pair Dev. Co. v. City of Atlanta, 144 Ga. App. 239, 240 S.E.2d 897 (1977); City of E. Point v. Terhune, 144 Ga. App. 865, 242 S.E.2d 728 (1978).
Construction and maintenance of sewers is a ministerial duty. Mayor of Savannah v. Spears, 66 Ga. 304 (1881); Smith v. City of Atlanta, 75 Ga. 110 (1885); City of Atlanta v. Trussell, 21 Ga. App. 340, 94 S.E. 649 (1917).
Nuisance theory liability.
- Power to construct a system of sewers and drains does not authorize the municipal corporation to create a nuisance. In such a case the city cannot escape liability on the ground that the city is engaged in the performance of a governmental function. Cannon v. City of Macon, 81 Ga. App. 310, 58 S.E.2d 563 (1950), later appeal, 89 Ga. App. 484, 79 S.E.2d 816 (1954); Ingram v. City of Acworth, 90 Ga. App. 719, 84 S.E.2d 99 (1954).
Even though the construction, installation, and maintenance of a sewer-drainage system, including that for surface water, is a governmental function, a municipal corporation can nevertheless be held liable with respect to these activities on the theory of nuisance and on the theory of taking or damaging for public purposes without just and adequate compensation being first paid. Turk v. City of Rome, 133 Ga. App. 886, 212 S.E.2d 459, aff'd, 235 Ga. 223, 219 S.E.2d 97 (1975).
Trial court erred by granting summary judgment to a city on a property owner's nuisance claim because evidence existed that the property had been subjected to repeated flooding and that the city had notice of the problem, creating a jury issue as to whether the city had created a nuisance by failing to install a back flow preventer as the city had done for other properties. J. N. Legacy Group v. City of Dallas, 322 Ga. App. 475, 745 S.E.2d 721 (2013).
Sufficiency of petition.
- When the gist of the action was negligence and not nuisance, and the only act of negligence alleged in the petition was that the opening in the sewerage system of the city was too small, and the petition did not allege any negligent construction or negligent failure to keep in repair or maintain the sewer or the sewer's inlet, or negligence in allowing the sewer to become obstructed, this was merely alleging an error in the planning of a drainage system and that this act caused the injury. No actionable negligence was alleged, and the municipality was not liable for the judgment on the part of the authorities in locating or planning a general plan of drainage sewers for the city. Rogers v. City of Atlanta, 61 Ga. App. 444, 6 S.E.2d 144 (1939).
Transportation
Airport as park.
- Airport of the City of Savannah, under the statutes (both local and general) authorizing the airport's establishment and maintenance, was a governmental institution in the nature of a "park," and the city was not liable in damages to a party sustaining personal injuries by reason of a dangerous defect in the pavement of a roadway inside the "park," notwithstanding receipt by the city of some incidental revenue from lessees or licensees of certain privileges therein, it not appearing that the airport was operated primarily as a source of revenue. Mayor of Savannah v. Lyons, 54 Ga. App. 661, 189 S.E. 63 (1936).
Operation of a municipal airport when portions are leased for "substantial revenue" is a ministerial or proprietary function of the city. Hence, a municipality is not immune from liability resulting from the municipality's negligence in the maintenance and operation thereof. Caroway v. City of Atlanta, 85 Ga. App. 792, 70 S.E.2d 126 (1952); Taylor v. King, 104 Ga. App. 589, 122 S.E.2d 265 (1961). For comment on Caroway v. City of Atlanta, see 5 Ga. St. B. J. 474 (1969).
Use of motor vehicles.
- Governmental immunity from liability extends to the use of motor vehicles in connection with the performance or accomplishment of the governmental function. Foster v. Crowder, 117 Ga. App. 568, 161 S.E.2d 364 (1968).
Bus system.
- In operating a system of buses for the transportation of passengers for hire, a city functions in a corporate, as distinguished from a governmental capacity, and may be held liable for injuries sustained through the negligent operation of a bus. Columbus v. Hadley, 130 Ga. App. 599, 203 S.E.2d 872 (1974).
City is liable as a common carrier with respect to passengers, and is required to exercise a high degree of care for passenger safety, not only while being transported, but also when entering the vehicle, or alighting therefrom. Columbus v. Hadley, 130 Ga. App. 599, 203 S.E.2d 872 (1974).
Need to prove negligence caused injury to passengers.
- Recovery against the city will be denied if the evidence is insufficient to prove negligence on the part of a bus driver. Columbus v. Hadley, 130 Ga. App. 599, 203 S.E.2d 872 (1974).
Municipality is not an insurer of the safety of the municipality's passengers, and ordinarily is not liable for damages resulting from sudden stops, or jerks or jolts of the vehicle, nor for unusual conditions on streets or sidewalks, unless municipal negligence is established. As to persons other than passengers, such as pedestrians, or motorists, ordinary care is required in the operation of buses. Columbus v. Hadley, 130 Ga. App. 599, 203 S.E.2d 872 (1974).
Liability to police officer for defective motorcycle.
- Defendant municipality is not liable for the negligence of the municipality's chief of police in failing to furnish a police officer with a good motorcycle since at the time of the injury the municipality was in the exercise of a governmental function. Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934).
Other Duties
Preservation of public health is a governmental function and involves the removal of those causes which are calculated to produce disease. Mitchell v. City of St. Marys, 155 Ga. App. 642, 271 S.E.2d 895 (1980).
Violation by city of own ordinance.
- Court did not err in charging that the violation by a city of the city's own ordinance calling for safety shut-off devices on gas appliances would constitute negligence per se since the city was engaged in supplying gas and had undertaken to convert customers' appliances to the use of propane. City of Albany v. Burt, 88 Ga. App. 144, 76 S.E.2d 413 (1953).
Wall abutting on or nearby a public street may be torn down by the municipality if the wall is dangerous to the public, but if this be done summarily, it is at the peril of the city. If the wall is not in fact dangerous, the city will be liable. McWilliams v. City of Rome, 142 Ga. 848, 83 S.E. 945 (1914).
Collection and transportation of garbage by a city employee is a governmental function. Boone v. City of Columbus, 87 Ga. App. 701, 75 S.E.2d 338 (1953).
Removal of garbage from residences, the transportation thereof to a point of disposal and the disposal, when performed by a municipality, or an agency thereof, is a governmental function in the performance of which a city incurs no liability for the negligent acts of the city's officers and employees. Ethridge v. City of Lavonia, 101 Ga. App. 190, 112 S.E.2d 822 (1960). For comment, see 23 Ga. B. J. 129 (1960).
Generally, removal of garbage and trash and other health and sanitation measures protecting the health and welfare of the public are considered governmental functions, but cleaning up the street in a "cleanup campaign" might include both health and sanitation, as well as maintaining streets and sidewalks to keep the streets and sidewalks safe for travel, which is a ministerial function. City of Atlanta v. Whatley, 161 Ga. App. 705, 289 S.E.2d 541 (1982).
When city admitted that the city was remunerated for sanitation and trash pick-up and could have used a portion of the revenues derived from such a source to finance in part other city operations, the pick-up activity may have become a quasi-public business, a ministerial function, by becoming a "source of revenue" instead of "a purely incidental profit." City of Atlanta v. Whatley, 161 Ga. App. 705, 289 S.E.2d 541 (1982).
Garbage as nuisance.
- Although municipal authorities may have plenary power in the matter of collection, removal, and disposition of garbage, yet the municipal authorities cannot lawfully create, in connection therewith, a nuisance dangerous to health or life; and when such a nuisance is created, and the effect is specially injurious to an individual by reason of the nuisance's proximity to an individual's home, the individual has a cause of action for damages. City of Atlanta v. Due, 42 Ga. App. 797, 157 S.E. 256 (1931).
Housing authority created under statutory authorization was business enterprise, and hence municipality was liable in tort to tenant. Knowles v. Housing Auth., 212 Ga. 729, 95 S.E.2d 659 (1956). For comment, see 20 Ga. B. J. 258 (1957).
Wrongful refusal of bail.
- City was not liable in damages because mayor, as judge of city's court for the trial of ordinance violations, wrongfully refused to allow bail to an alleged offender, and wrongfully directed a police officer to commit the offender to jail, where the offender was imprisoned until released by a habeas corpus proceeding, nor did the appearance of the mayor or an attorney for the municipality in resistance of the habeas corpus constitute a ratification by the municipality of these alleged illegal acts by the municipality's officers so as to render the municipality liable therefore. Brown v. City of Union Point, 52 Ga. App. 212, 183 S.E. 78 (1935).
City cemetery.
- When none but those who pay for easements in city-owned cemetery are permitted to use the cemetery as such (that is, those who buy lots therein), the sphere of the cemetery's operation is so contracted as to exclude the general public from the use of the cemetery for cemetery purposes, and thus, even if a few paupers are buried there without paying therefor, the city is engaged in the performance of a ministerial function and not a governmental function, and is liable for negligence in connection therewith. City of Atlanta v. Rich, 64 Ga. App. 193, 12 S.E.2d 436 (1940), distinguished, Mayor of Savannah v. Radford, 261 Ga. 129, 401 S.E.2d 709 (1991).
Wastepaper box.
- Maintenance by a municipality of a large wastepaper wooden box as a receptacle for trash and wastepaper and the removal of the box's contents is an act by a municipality in the performance of the municipality's governmental functions. Mayor of Savannah v. Jones, 149 Ga. 139, 99 S.E. 294 (1919).
Uninsulated live wire.
- In suit by telephone cable repairer, against telephone company and city, for injuries sustained by coming into contact with uninsulated live wire of city, strung in close proximity to pole of defendant telephone company, while repairing cable on that pole, the petition set out no cause of action where it appeared that the plaintiff could have avoided injury by the exercise of ordinary care. Elder v. City of Quitman, 56 Ga. App. 460, 193 S.E. 82 (1937).
Manufacture and installation of sanitary toilets by a municipality for the municipality's citizens is an act tending to promote the health and general welfare of the municipality's citizens, and is in its nature a governmental function. Watkins v. City of Toccoa, 55 Ga. App. 8, 189 S.E. 270 (1936).
When an airport security officer employed by the city had the powers of a police officer and fire fighter and was involved in an automobile accident while performing those duties, the city is immune from liability. City of Macon v. Powell, 133 Ga. App. 907, 213 S.E.2d 63 (1975).
Fire department.
- Operation and maintenance of fire departments and apparatus therein is a governmental function of the municipality and, therefore, the municipality is not liable for negligence of the municipality's officers or agents incident to such function. Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934); Banks v. City of Albany, 83 Ga. App. 640, 64 S.E.2d 93 (1951).
Injuries to fire fighter.
- When a municipal corporation maintains a firehouse and on the second floor of the building maintains sleeping quarters for attending fire fighters, and when the municipality maintains in the building a pole extending from the fire fighter's quarters to the first floor which is used in responding to fire alarms, the municipality is engaged in the exercise of a governmental power in maintaining such pole and the floor on which the pole rests, and is not liable in damages to a fire fighter for injuries while using the pole for the purpose for which the pole was intended, on account of negligence in the maintenance of the pole and floor. Miller v. City of Macon, 152 Ga. 648, 110 S.E. 873 (1922).
Fact that a police officer was patrolling property operated by the municipality for private gain and profit would not affect the character of the police officer's act and the consequent liability of the city. Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934).
Municipality not liable for negligence of leader of work gang when prisoner injured as a result. City of Atlanta v. Hurley, 83 Ga. App. 879, 65 S.E.2d 44 (1951). For comment, see 3 Mercer L. Rev. 218 (1951) and 14 Ga. B. J. 80 (1951).
Erection and maintenance of a city prison by a municipal corporation is a governmental function. Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934).
In erecting and maintaining a city prison for a police station, a municipal corporation is exercising a purely governmental function and is, therefore, not liable in damages to a person arrested and imprisoned therein by the municipality's police officers for injuries sustained by the person while so confined by reason of the improper construction or negligent maintenance of such prison or station. McDay v. City of Atlanta, 204 Ga. App. 621, 420 S.E.2d 75, cert. denied, 204 Ga. App. 922, 420 S.E.2d 75 (1992).
Maintenance of a jail by a municipality is a governmental function, and the municipality is not liable for injury to a prisoner resulting entirely from the negligent maintenance and keeping of the prison. Archer v. City of Austell, 68 Ga. App. 493, 23 S.E.2d 512 (1942).
Jail conditions.- Because a city was immune from suit in performing the governmental function of maintaining the city jail, it could not be concluded as a matter of law, in a federal civil rights action against the city and the city's police officers, alleging that the physical conditions in the jail deprived the defendant of due process, that "adequate state remedies" existed. Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).
Operation of a system of waterworks is not such a governmental function that a city is not liable for injuries resulting through negligence in the maintenance thereof. Huey v. City of Atlanta, 8 Ga. App. 597, 70 S.E. 71 (1911).
City maintenance of drainage culverts.
- In a father's suit alleging that a city was negligent in maintenance of a drainage culvert in which the father's son drowned, the father's argument that the city waived the city's sovereign immunity under O.C.G.A. § 36-33-1(a) was treated as abandoned on the city's motion for summary judgment because the father did not address the city's sovereign immunity claim in the brief in opposition to the motion. Walden v. City of Hawkinsville, F.3d (M.D. Ga. Sept. 21, 2005).
City immune for operation of a fountain.
- City was entitled to sovereign immunity under O.C.G.A. § 32-4-93 in a pedestrian's claim against the city for negligent maintenance of a fountain, which the pedestrian argued resulted in ice forming on a sidewalk where the pedestrian slipped and fell. The pedestrian failed to point to specific evidence of the city's actual or constructive notice of any defect in the fountain. Naraine v. City of Atlanta, 306 Ga. App. 561, 703 S.E.2d 31 (2010).
Operation of parking meters on the streets of a municipality with charter powers sufficiently broad to invest it with the general supervision and control over its street is a governmental function. Stubbs v. City of Macon, 78 Ga. App. 237, 50 S.E.2d 866 (1948).
Operation of electric power plant a ministerial function.
- Under O.C.G.A. § 36-33-1, a municipal corporation is liable for improper performance of the municipality's ministerial duties, but not for errors in exercising the municipality's judicial or governmental powers, and the operation of an electric power plant for profit is a ministerial function. City of Douglas v. Johnson, 157 Ga. App. 618, 278 S.E.2d 160 (1981).
Licensing power.
- When a municipal or other governmental body grants a license it is an adjudication that the applicant has satisfactorily complied with the prescribed standards for the award of that license. Similarly the denial of a license is based on an adjudication that the applicant has not satisfied those qualifications and requirements. On the other hand, the prescription of standards which must be met to obtain a license is legislation, since these standards are authoritative guides for future conduct derived from an assessment of the needs of the community. A governmental agency entrusted with the licensing power, therefore, functions as a legislature when the agency prescribes these standards, but the same agency acts as a judicial body when the agency makes a determination that a specific applicant has or has not satisfied the requirements. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).
Requirements of due process applicable to licensing power.
- Since licensing consists in the determination of factual issues and the application of legal criteria to the licensing - a judicial act - the fundamental requirements of due process are applicable to it. 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).
City immune for clerk's action of issuing a business license.
- Suit by parents against a city alleging that the city negligently issued a day care business license to a day care, which left their child in a hot car, resulting in the child's death, was barred by sovereign immunity because the issuance of a license was a government function. Calloway v. City of Warner Robins, 336 Ga. App. 714, 783 S.E.2d 175 (2016).
Waiver in 1983 pursuant to state constitution.
- Despite the language limiting O.C.G.A. § 36-33-1(a)'s effect to litigation pending after July 1, 1986, a municipality's defense of sovereign immunity is automatically waived to the extent of any applicable general liability insurance coverage carried by the municipality for actions filed as of the effective date in 1983 of Ga. Const., 1983, Art. I, Sec. II, Para. IX. Brockman v. Burnette, 184 Ga. App. 66, 360 S.E.2d 655 (1987).
When plaintiff failed to furnish an insurance policy which was allegedly purchased by the city, it could not have been determined whether the policy covered an occurrence for which the defense of sovereign immunity was available, and whether the city waived the city's immunity for any tort which may have been committed by one of the city's officers. Hancock v. Hobbs, 967 F.2d 462 (11th Cir. 1992).
Indemnification agreement with railroad.
- When the city entered into agreements with the railroad to utilize a right-of-way for water and sewer lines, and an accident later subjected the railroad to damages, and claims by third parties, because nothing in O.C.G.A. § 36-33-1 could be construed to permit a municipality to waive its sovereign immunity by contracting to indemnify a third party, the indemnification agreement between the city and the railroad was void as an ultra vires contract. Under O.C.G.A. § 36-33-1(a), it was the purchase of insurance that effectuated the waiver of sovereign immunity; thus, it was irrelevant that the invalid indemnification agreement covered occurrences to which sovereign immunity both did and did not apply. CSX Transp., Inc. v. City of Garden City, 277 Ga. 248, 588 S.E.2d 688 (2003).
In an action by a rail corporation for indemnification resulting from a collision between a train and a truck operated by a city's construction contractor, the rail corporation could not use an insurance provision in a contract with the city permitting use of the railroad's right-of-way to bootstrap an unpleaded tort claim when, under O.C.G.A. § 36-33-1, the city had waived the city's sovereign immunity to the extent that the city had purchased liability insurance so that the indemnification provision had no effect and the railroads had abandoned the railroad's contract claim. CSX Transp., Inc. v. City of Garden City, F.3d (11th Cir. Dec. 10, 2007)(Unpublished).
Indemnification contracts.- City was entitled to summary judgment on plaintiffs' contract claim against the city since the indemnification contract between the city and the plaintiffs was ultra vires. CSX Transp., Inc. v. City of Garden City, 196 F. Supp. 2d 1288 (S.D. Ga. 2002).
Surety sued a city after the cash bond the surety posted was forfeited. As the traffic court was operating in the court's judicial capacity when the court ordered the forfeiture of the bond, the court's actions were immune from liability under O.C.G.A. § 36-33-1(b). Watts v. City of Dillard, 294 Ga. App. 861, 670 S.E.2d 442 (2008).
OPINIONS OF THE ATTORNEY GENERALGenerally, counties have a broader immunity from suits than do municipalities. 1975 Op. Att'y Gen. No. 75-32.
Keeping of prisoners by a city is ordinarily a governmental function, and for simple negligence in such a function a city is not liable. 1973 Op. Att'y Gen. No. U73-25.
Municipality's potential liability for acts of a probationer working on a community service project will have to be determined from the facts in each case, which will show whether the injury is the result of a nuisance as defined in former Code 1933, § 72-101 (see now O.C.G.A. § 41-1-1), or negligence as stated in former Code 1933, § 69-301 (see now O.C.G.A. § 36-33-1). 1975 Op. Att'y Gen. No. 75-32.
School athletic activities.- Local school district is not liable in tort under the law of Georgia for injuries sustained by a pupil engaged in school athletic activities. 1957 Op. Att'y Gen. p. 100.
Board not liable for accident while transporting pupil to athletic event.- Use of a school bus for transporting a school band and school pupils of an independent school system to athletic contests participated in by the schools of the district would be a governmental operation and a city board of education is not liable for an injury received by a pupil in a school bus accident. 1945-47 Op. Att'y Gen. p. 220.
RESEARCH REFERENCES
C.J.S.
- 63 C.J.S., Municipal Corporations, § 882.
ALR.
- Suit against railroad owned by or in which interest is held by United States or state, 8 A.L.R. 995.
Liability of town or municipality for libel or slander, 9 A.L.R. 351.
Liability of water or power company for interruption of pressure during progress of fire, 27 A.L.R. 1273.
Statutory requirement of adequate service and facilities by public utility as affecting liability for loss of private property through inadequate supply of water to extinguish fire, 27 A.L.R. 1279.
Liability of municipal corporation for tort of officer or employee of water department, 28 A.L.R. 822; 54 A.L.R. 1497.
Liability of municipal corporations for injuries due to conditions in parks, 29 A.L.R. 863; 42 A.L.R. 263; 99 A.L.R. 686; 142 A.L.R. 1340.
Commission and other modern forms of municipal government as affecting liability of municipality for torts, 30 A.L.R. 473.
Liability of municipality for tort in construction or operation of municipally owned railroad or street railway, 31 A.L.R. 1306.
Liability in respect of taxes derived from territory improperly annexed to municipal or political division, 35 A.L.R. 477.
Validity of contract exempting municipality from liability for negligence, 41 A.L.R. 1358.
Liability of municipality as affected by license issued by municipal officer, 42 A.L.R. 1208.
Liability of municipality for damages or compensation for abating as a nuisance what is not in fact such, 46 A.L.R. 362.
Liability of municipality in respect of municipal bathhouses, bathing beaches, and swimming pools, 51 A.L.R. 370; 57 A.L.R. 406.
Liability of municipality in consequence of its inability, refusal, or failure to collect the cost of local improvements from the property benefited, 51 A.L.R. 973; 172 A.L.R. 1030.
Liability of municipal corporations and their licensees for the torts of independent contractors, 52 A.L.R. 1012.
Liability of municipality in damages for wrongful revocation of permit or license, 55 A.L.R. 434.
Rule of municipal immunity from liability for torts pertaining to governmental functions as affected by constitutional guaranty of remedy for all injuries and wrongs, 57 A.L.R. 419.
Rule of municipal immunity from liability for torts pertaining to exercise of governmental functions as available to municipal lessee or concessioner, 57 A.L.R. 560.
Liability of county or municipality for tortious injury in or about building which is used for both governmental and proprietary functions, 64 A.L.R. 1545.
Liability of municipality where sewer originally of ample size has become inadequate by growth or development of territory, 70 A.L.R. 1347.
Liability of municipality for injury due to defective catch-basin covers, and the like, maintained in street in connection with drainage or sewer system, 71 A.L.R. 753.
Res ipsa loquitur as applicable in action against municipality for injuries from dangerous condition in parks, streets, or highways, 74 A.L.R. 1226.
Rule of municipal immunity from liability for acts in performance of governmental functions as applicable in case of personal injury or death as result of a nuisance, 75 A.L.R. 1196; 56 A.L.R.2d 1415.
Fire department as pertaining to the governmental or the proprietary branch of municipality, 84 A.L.R. 514.
Constitutionality or validity of statute or ordinance requiring a bond to discharge liability for damage as a condition of use of, or operations on, real property, 86 A.L.R. 803.
Applicability to federal courts of state constitutional or statutory provisions regarding liability of county or other political subdivision to suit, 86 A.L.R. 1019.
Power of legislature to impose, or municipality to assume, liability for acts of officials or employees pertaining to governmental functions, 89 A.L.R. 394.
Right to and remedy in respect of damages due to negligent or delayed prosecution of condemnation proceedings, 92 A.L.R. 379.
Liability of municipality for injury by or incident to fireworks display, 93 A.L.R. 1356.
Liability of municipal corporation for its own misfeasance or nonfeasance, as distinguished from misfeasance or nonfeasance of officer or employee, 102 A.L.R. 656.
Power of city, town, or county or its officials to compromise claim, 105 A.L.R. 170; 15 A.L.R.2d 1359.
Liability of municipality because of misappropriation, diversion, or withholding of funds collected by or paid to it on account of special assessment against property for improvements, 107 A.L.R. 1354.
When statute of limitation commences to run against an action based on breach of duty by recording officer, 110 A.L.R. 1067.
Use of municipal automobile as a corporate or as a governmental function, 110 A.L.R. 1117; 156 A.L.R. 714.
Liability of municipality for damage to person or property due to hydrant, 113 A.L.R. 661.
Municipal corporation or other governmental unit as within term "corporation," "person," or other term employed in death statute descriptive of parties against whom the action may be maintained, 115 A.L.R. 1287.
Liability of public officer in respect of public money paid out in reliance upon unconstitutional statute, 118 A.L.R. 787.
Liability of municipality for enforcement of an unconstitutional or void ordinance, 118 A.L.R. 1054.
Municipal immunity from liability for torts, 120 A.L.R. 1376; 60 A.L.R.2d 1198.
Constitutionality of statute which relieves municipality from liability for torts, 124 A.L.R. 350.
Lease by municipality of property intended for use and benefit of public as affecting its duty and responsibility in respect of the manner and conditions of operation and maintenance of the property by the lessee, 129 A.L.R. 1163.
Tort liability of municipality or other governmental subdivision in connection with poor relief activities, 134 A.L.R. 762.
Liability for injury to person or damage to property as result of "blackout," 136 A.L.R. 1327; 147 A.L.R. 1442; 148 A.L.R. 1401; 150 A.L.R. 1448; 153 A.L.R. 1433; 154 A.L.R. 1459; 155 A.L.R. 1458; 158 A.L.R. 1463.
Immunity of municipality from liability for torts in exercise of governmental functions as applicable to torts outside municipal limits, 140 A.L.R. 1058.
Collection and disposal of garbage and rubbish as governmental or private function as regards municipal immunity from liability for tort, 156 A.L.R. 714.
Abrogation of state's immunity from liability or suit as affecting immunity of municipality or other governmental unit, 161 A.L.R. 367.
Remedy available against invalid judgment in favor of United States, state, or other governmental unit immune to suit, 163 A.L.R. 244.
Liability of municipality for fire loss due to its failure to provide or maintain adequate water supply or pressure, 163 A.L.R. 348.
Municipal liability for injury to voter in consequence of condition of polling place, 164 A.L.R. 472.
Effect of statute permitting state to be sued upon the question of its liability for negligence or tort, 169 A.L.R. 105.
Liability of municipal corporation for damage to property resulting from inadequacy of drains and sewers due to defects in plan, 173 A.L.R. 1031.
Tortious breach of contract as within consent to suit against United States or state on contract, 1 A.L.R.2d 864.
Liability of municipality or other governmental subdivision in connection with flood-protection measures, 5 A.L.R.2d 57.
Municipality's duty and liability with respect to excavation made by abutting owner to connect his property with service mains in street, 13 A.L.R.2d 922.
Liability of municipality for damage caused by fall of tree or limb, 14 A.L.R.2d 186.
Liability of municipality for injury or damage from explosion or burning of substance stored by third person under municipal permit, 17 A.L.R.2d 683.
Recovery of interest on claim against a governmental unit in absence of provision in contract or express statutory provision, 24 A.L.R.2d 928.
Immunity from liability for damages in tort of state or governmental unit or agency in operating hospital, 25 A.L.R.2d 203; 18 A.L.R.4th 858.
Tort liability of governmental unit for injury or damage resulting from insecticide and vermin eradication operations, 25 A.L.R.2d 1057.
Operation of garage for maintenance and repair of municipal vehicles as governmental function, 26 A.L.R.2d 944.
Tort liability of municipality or other governmental unit in connection with destruction of weeds and the like, 34 A.L.R.2d 1210.
Liability of municipality in damages for its refusal to grant permit, license, or franchise, 37 A.L.R.2d 694.
State's immunity from tort liability as dependent on governmental or proprietary nature of function, 40 A.L.R.2d 927.
Maintenance of auditorium, community recreational center building, or the like, by municipal corporation as governmental or proprietary function for purposes of tort liability, 47 A.L.R.2d 544.
Liability of municipality for injuries resulting from fall or slipping on debris or litter on outdoor stairway, 47 A.L.R.2d 1086.
Death action against municipal corporation as subject to statute of limitations governing wrongful death actions or that governing actions against a municipality for injury to person or property, 53 A.L.R.2d 1068.
Municipal operation of bathing beach or swimming pool as governmental or proprietary function, for purposes of tort liability, 55 A.L.R.2d 1434.
Municipal operation of sewage disposal plant as governmental or proprietary function, for purposes of tort liability, 57 A.L.R.2d 1336.
Municipality's liability for damage resulting from obstruction or clogging of drains or sewers, 59 A.L.R.2d 281.
Municipality's liability arising from negligence or other wrongful act in carrying out construction or repair of sewers and drains, 61 A.L.R.2d 874.
Suability, and liability, for torts, of public housing authority, 61 A.L.R.2d 1246.
Liability of municipality for torts in connection with airport, 66 A.L.R.2d 634.
Civil liability of school officials for malicious prosecution, 66 A.L.R.2d 749.
Liability or indemnity insurance carried by governmental unit as affecting immunity from tort liability, 68 A.L.R.2d 1437.
Waiver of, or estoppel to rely upon, contractual limitation of time for bringing action against municipality or other political subdivision, 81 A.L.R.2d 1039.
Liability of municipality for injuries resulting from falling or slipping on defective outdoor stairway or steps, 92 A.L.R.2d 469.
Snow removal operations as within doctrine of governmental immunity from tort liability, 92 A.L.R.2d 796.
Right of contractor with federal, state, or local public body to latter's immunity from tort liability, 9 A.L.R.3d 382.
Modern status of doctrine of sovereign immunity as applied to public schools and institutions of higher learning, 33 A.L.R.3d 703.
Liability of municipality on quasi contract for value of property or work furnished without compliance with bidding requirements, 33 A.L.R.3d 1164.
Tort liability of public schools and institutions of higher learning for accident occurring during school athletic events, 35 A.L.R.3d 725.
Tort liability of public schools and institutions of higher learning for accidents associated with chemistry experiments, shopwork, and manual or vocational training, 35 A.L.R.3d 758.
Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.
Liability of municipality or other governmental unit for failure to provide police protection, 46 A.L.R.3d 1084.
Attorney's mistake or neglect as excuse for failing to file timely notice of tort claim against state or local governmental unit, 55 A.L.R.3d 930.
Liability of governmental entity for issuance of permit for construction which caused or accelerated flooding, 62 A.L.R.3d 514.
Municipal corporation's safety rules or regulations as admissible in evidence in action by private party against municipal corporation or its officers or employees for negligent operation of vehicle, 82 A.L.R.3d 1285.
State or municipal liability for invasion of privacy, 87 A.L.R.3d 145.
Governmental tort liability for social service agency's negligence in placement, or supervision after placement, of children, 90 A.L.R.3d 1214.
Governmental liability from operation of zoo, 92 A.L.R.3d 832.
Recovery of exemplary or punitive damages from municipal corporation, 1 A.L.R.4th 448.
Liability of governmental unit or its officers for injury to innocent occupant of moving vehicle, or for damage to such vehicle, as result of police chase, 4 A.L.R.4th 865.
Liability of urban redevelopment authority or other state or municipal agency or entity for injuries occurring in vacant or abandoned property owned by governmental entity, 7 A.L.R.4th 1129.
Liability of governmental officer or entity for failure to warn or notify of release of potentially dangerous individual from custody, 12 A.L.R.4th 722.
Liability for wrongful autopsy, 18 A.L.R.4th 858.
Liability of governmental entity to builder or developer for negligent issuance of building permit subsequently suspended or revoked, 41 A.L.R.4th 99.
Right of insured, precluded from recovering against owner or operator of uninsured motor vehicle because of governmental immunity, to recover uninsured motorist benefits, 55 A.L.R.4th 806.
Municipal liability for negligent performance of building inspector's duties, 24 A.L.R.5th 200.
Liability of school or school personnel for injury to student resulting from cheerleader activities, 25 A.L.R.5th 784.