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Action for damages. Albany City Court. Before Judge Jones. July 3, 1958.
The petition asserting liability against the city for the alleged negligent failure to maintain a stop sign at a street intersection, which allegedly resulted in injury and death to the plaintiff's husband, failed to state a cause of action and the trial court did not err in sustaining the general demurrers and in dismissing it.
Mrs. Arthur sued the City of Albany and Darold Dean Johnson for damages on account of the death of her husband. The petition was in three counts, each of which alleged substantially that the plaintiff's husband was killed as the result of an automobile collision between an automobile driven by him and an automobile driven by the said Johnson at the intersection of Residence Avenue and N. Davis Street in the City of Albany. The asserted liability of the defendant Johnson is not in question in the case before this court. Insofar as the defendant city is concerned, it is sufficient to say that all counts of the petition alleged that the defendant had maintained stop signs on Davis Street at the intersection of Residence Avenue and that the municipality had permitted the stop sign on the southeast corner of said intersection facing the traffic going north on Davis Street to remain down so that it did not serve as a warning to the drivers of automobiles approaching the intersection from the south on Davis Street; that the stop sign had been down on the ground for a continuous period of at least four days, and that the defendant municipality had done nothing to remedy this dangerous situation; that at the time of the collision, the defendant Johnson had no knowledge that he was driving on a stop street and that he should stop before entering the intersection of Residence Avenue, and that, as the plaintiff's husband drove his automobile into the intersection traveling east along Residence Avenue, the defendant Johnson entered the intersection on her husband's right traveling north on Davis Street and collided with her husband's automobile, inflicting the injuries from which her husband died.
In count 1, it was alleged that the failure to replace the stop sign constituted a nuisance especially injurious to the plaintiff's husband; and, in count 2, the liability of the municipality was asserted on the basis that the failure to replace the stop sign amounted to the failure to keep its streets safe for motorists and pedestrians; and, in count 3, liability was asserted on the theory that the failure to replace the stop sign after notice that it was down was the negligent performance of a ministerial or corporate duty of a municipality for which the municipality was liable.
The defendant municipality filed numerous general and special demurrers to the petition. The trial court sustained the general demurrers and dismissed the petition as to the defendant City of Albany. To that judgment the plaintiff excepted and assigns error in this court.
1. The trial court did not err in sustaining the general demurrers. Count 1 of the petition was insufficient to set forth a cause of action on account of the maintenance of a nuisance. The allegations of the petition fail to show that the condition created by the absence of the stop sign was injurious to the plaintiff by reason of its relationship to her home or property located in the neighborhood, or that it was expressly injurious to the plaintiff as a member of the public as constituting an obstruction to the streets or sidewalks. Stanley v. City of Macon, 95 Ga. App. 108, 112 (2b) (97 S. E. 2d 330).
2. The 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. Code 69-301; City of Rome v. Potts, 45 Ga. App. 406, 410 (165 S. E. 131). Such functions are not related to the maintenance of the streets as such, and liability of a municipality for the negligent failure to maintain a stop sign after it is once erected cannot be predicated on the theory that it is a part of street maintenance.
In deciding whether to erect the stop sign in the first place and in erecting it, the municipality exercises its legislative or judicial powers, and in determining whether to maintain the stop sign or traffic control device or to operate it, and in determining whether to replace it once it has been destroyed or removed, are all a part of the same exercise of legislative or judicial power, and the duty of erecting the device cannot be divorced from the duty of maintaining it so as to say that the erection of the stop sign is an exercise of the legislative function, but that its maintenance or re-erection is merely ministerial. Long recognized limitations on municipal liability for the negligent performance of governmental duties will not be abrogated by this kind of judicial legislation. City of Cumming v. Chastain, 97 Ga. App. 13 (102 S. E. 2d 97).
It follows that the petition failed to set forth a cause of action against the municipality in any of its counts, and the trial court did not err in sustaining the general demurrers and in dismissing it. See Stubbs v. City of Macon, 78 Ga. App. 237 (2b) (50 S. E. 2d 866).
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
H. Grady Rawls, Perry & Walters, H. H. Perry, Jr., contra.
Eugene Black, Burt & Burt, for plaintiff in error.
Saturday May 23 01:05 EDT

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