CITY OF MILTON v. CHANG

• Court: Supreme Court of Georgia
• Decided: March 12, 2026
• Docket: S25G0476
• Status: Published

Opinion

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

In the Supreme Court of Georgia

Decided: March 12, 2026

S25G0476. CITY OF MILTON v. CHANG, et al.

PINSON, Justice.

We granted review of this case to address how to apply certain

statutes having to do with municipal liability when someone sues a

city for negligence that causes injuries on city streets. One of those

statutes, OCGA § 36-33-1(b), waives the immunity of municipalities

for negligence in performing “ministerial duties.” The other one,

OCGA § 32-4-93(a), limits municipal liability for negligence claims

against a municipality for “defects in the public roads.” For the

reasons set out below, we conclude as follows. First, OCGA § 32-4-

93(a) itself does not waive municipal immunity for “road-defect”

negligence claims against a municipality, so any such waiver must

come from another source. Second, that kind of claim may rely on

OCGA § 36-33-1(b)’s immunity waiver if a municipality’s ministerial duty to keep its streets and sidewalks safe for travel is implicated

by the specific claim at issue. And third, based on our precedent,

that ministerial duty is limited to keeping streets and sidewalks safe

for ordinary travel on the parts of the street or sidewalk intended

for such travel — that is, in the lanes of travel. This duty does not

extend to keeping property outside the lanes of travel safe for

traversal in case of an accident or emergency. That does not mean

that a city has no duty of care or liability in connection with its

property under such circumstances — only that any waiver of

municipal immunity for a negligence claim involving those

circumstances must come from some other source. The judgment of

the Court of Appeals is vacated and remanded for proceedings

consistent with this opinion.

1. Background One night in November 2016, college student Joshua Chang

was driving to his parents’ home. As he was traveling along

Batesville Road in the City of Milton, he turned his wheel hard, and

his car left the paved road, slid more than 60 feet, flipped, and

2 landed on a substantial concrete “planter” that was sitting in

between two driveways, more than six feet off the road. Chang died

from his injuries.

Chang’s parents sued the City of Milton, claiming that the City

was negligent in failing to remove the planter, an alleged “defect” in

the public roads, and that the planter was a nuisance for which the

City was liable. After a trial, the jury found the City liable under

both theories and awarded damages of $35 million, reduced by seven

percent to reflect Chang’s comparative fault.

The City appealed, arguing that the plaintiffs’ claims were

barred by sovereign immunity (either wholly, or at least beyond the

City’s $2 million insurance policy limit) and that they had not

presented sufficient evidence to support their nuisance claim. The

Court of Appeals affirmed. City of Milton v. Chang, 373 Ga. App. 667

(2024). As to sovereign immunity, the court explained that cities are

protected by sovereign immunity unless that immunity is waived by

the legislature or the Constitution, and under OCGA § 36-33-1(b),

this immunity is waived if a city is negligent in performing a

3 ministerial duty. Id. at 670–71. Noting that cities have a ministerial

duty to “maintain city streets in a reasonably safe condition for

travel,” the court went on to assess whether sovereign immunity was

waived by applying a different statute, OCGA § 32-4-93(a), which

says that “[a] municipality is relieved of any and all liability

resulting from or occasioned by defects in the public roads of its

municipal street system” so long as the municipality “has not been

negligent in constructing or maintaining the same or when it has no

actual notice thereof or when such defect has not existed for a

sufficient length of time for notice thereof to be inferred.” Id. at 671.

The court reasoned that the concrete planter that Chang crashed

into was “in the public road” because it was “on the shoulder, in the

right-of-way on a City-owned road.” Id. at 671–72 (citing OCGA §

32-4-93(a)). And based on the evidence presented, “it was for the jury

to determine if the planter constituted a defect.” Id. at 673. Finally,

the court concluded that there was sufficient evidence from which

the jury could conclude that the City had notice of the planter. Id. at

675. In the court’s view, all of that meant that sovereign immunity

4 was waived under OCGA § 36-33-1. And given that conclusion, there

was no need to address the separate waiver of sovereign immunity

up to the limits of the City’s insurance policy, or the City’s argument

that the plaintiffs failed to establish a nuisance.

This Court granted review to consider the interplay between

OCGA § 36-33-1 and OCGA § 32-4-93(a), as well as the scope of a

municipality’s long-established ministerial duty to keep its streets

and sidewalks safe for travel.

2. Legal Framework The Georgia Constitution declares that “[t]he General

Assembly may waive the immunity of counties, municipalities, and

school districts by law.” Ga. Const. of 1983, Art. IX, Sec. II, Par. IX.

This provision does not confer immunity on these entities, but

instead “preserve[s] whatever sovereign immunity existed for

[municipalities] at common law and make[s] clear that the General

Assembly may waive it.” Guy v. Hous. Auth. of City of Augusta, 321

Ga. 873, 876 (2025).

In turn, the General Assembly has provided limited waivers of

5 this municipal immunity. Relevant here, the legislature has

“declare[d]” in OCGA § 36-33-1(a) that “it is the public policy of the

State of Georgia that there is no waiver of” this immunity and that

“such municipal corporations shall be immune from liability for

damages.” This statute goes on, however, to identify certain

exceptions where municipal immunity has been waived. Subsection

(a) of the statute explains that a municipal corporation waives this

immunity if it buys liability insurance and that policy “covers an

occurrence for which the defense of sovereign immunity is available,

and then only to the extent of the limits of such insurance policy.”1

And subsection (b) says that municipal corporations are not liable

for “failure to perform or for errors in performing their legislative or

judicial powers,” but that they “shall be liable” for “neglect to

perform or improper or unskillful performance of their ministerial

duties.” This latter provision codifies “the common-law doctrine,

frequently applied in this state before and since adoption of the Code

1 This subsection also identifies waivers of immunity with respect to motor vehicles of local governments by reference to OCGA §§ 33-24-51 and 36- 92-2. Those waivers are not relevant here. 6 [of 1895], of nonliability for conduct of officers, agents, and servants

of municipal corporations in respect to duties devolving upon them

in virtue of the sovereign or governmental functions of the

municipality.” Cornelisen v. City of Atlanta, 146 Ga. 416, 417 (1917).

See also Ga. Code of 1895 § 748 (citing Collins v. Mayor of Macon,

69 Ga. 542 (1882)); Gatto v. City of Statesboro, 312 Ga. 164, 166

(2021). Further, we have said that this provision’s declaration that

municipal corporations “shall be liable” for the negligent

performance of their ministerial duties waives municipal immunity

for a claim that a municipality negligently performed a ministerial

duty. See City of Atlanta v. Mitcham, 296 Ga. 576, 577–78 (2015).

And for more than a century, we have treated as one such

ministerial duty the duty at issue in this case: that is, the duty to

keep city streets and sidewalks safe for travel. See, e.g., Mayor &

Council of Dalton v. Wilson, 118 Ga. 100, 104 (1903) (relying on the

“well-established rule in this State that a municipal corporation is

bound to keep its streets and sidewalks in a reasonably safe

condition, and that the failure to perform this duty constitutes a

7 breach of a ministerial duty”).

Under a separate title of our Code, OCGA § 32-4-93(a) limits

the liability of municipalities with respect to “defects in the public

roads of its municipal street system.” 2 In contrast to OCGA § 36-33-

1(b), this statute does not create any waiver of municipal immunity.

To begin with, the language of this provision looks nothing like the

express language of OCGA § 36-33-1 that subjects municipalities to

liability in specific instances. See also Ga. Const. of 1983, Art. IX,

Sec. II, Par. IX; CSX Transp., Inc. v. City of Garden City, 277 Ga.

248, 249 (2003) (“[O]nly the legislature has the authority to enact a

law that specifically waives a municipality’s sovereign immunity.”).

Instead, OCGA § 32-4-93(a) speaks only of limiting municipal

liability, not imposing it: the statute says that a municipality is

“relieved of any and all liability resulting from or occasioned by

2 Code section 32-4-93(a) reads in full:

A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred. 8 defects in the public roads of its municipal street system” when it

either has not been “negligent in constructing or maintaining” said

roads, or when it lacks sufficient notice, either actual or

constructive. OCGA § 32-4-93(a).

Moreover, although this language leaves a distinct impression

of a specific kind of negligence claim that may be brought against a

municipality (because a municipality is not “relieved” of liability if

it has been negligent and had the required notice), the statutory

history makes clear that the provision merely identifies limits on

such a claim rather than waiving immunity for it. The language of

the current statute’s predecessor, found in the Code of 1895, came

from one of our early decisions holding that a city was not negligent

as a matter of law under the circumstances of that case — that is, a

decision addressing the elements of the substantive claim of

liability, not a threshold question of “waiver” or “nonliability.” See

Ga. Code of 1895 § 749 (citing Mayor of Montezuma v. Wilson, 82 Ga.

206, 208–09 (1888) (reversing as contrary to the evidence verdict for

plaintiff on negligence claim for injuries from falling through a

9 sidewalk bridge into a ditch because the city had no notice of the

defect that caused the injury)). Compare Cornelisen, 146 Ga. at 417;

Collins, 69 Ga. at 546–48. That provision has since been amended

and moved to a new title, but nothing about those changes suggests

that the provision has transformed into a waiver of immunity.

Compare Ga. Code of 1895 § 749 (“If a municipal corporation has not

been negligent in constructing or repairing the same, it is not liable

for injuries resulting from defects in its streets when it has no notice

thereof, unless such defect has existed for a sufficient length of time

for notice to be inferred.”) with OCGA § 32-4-93(a) (“A municipality

is relieved of any and all liability resulting from or occasioned by

defects in the public roads of its municipal street system when it has

not been negligent in constructing or maintaining the same or when

it has no actual notice thereof or when such defect has not existed

for a sufficient length of time for notice thereof to be inferred.”). And

indeed, despite the long history of this provision and the negligence

claim it limits, none of this Court’s decisions has ever treated this

provision or its predecessors as a waiver of municipal immunity. We

10 see no basis for doing so now.

Having concluded that OCGA § 32-4-93 does not waive

municipal immunity, we can say the following about the relationship

between that statute and OCGA § 36-33-1(b). Code section 36-33-

1(b) waives municipal immunity with respect to ministerial duties,

including the long-established duty to keep city streets and

sidewalks safe for travel. (More on the scope of that duty, the other

question in this case, in a bit.) Code section 32-4-93(a), on the other

hand, codifies limits on a specific kind of “road defect” negligence

claim against municipalities. But, as we have just confirmed, this

statute does not also waive municipal immunity for such claims. So,

to determine whether municipal immunity is waived for a given

road-defect claim, we do not look to OCGA § 32-4-93(a), but to

statutes that could provide such a waiver, including OCGA § 36-33-

1(b).

This is where the Court of Appeals departed from the proper

analysis. The court started in the right place, with the threshold

question whether the City’s immunity was waived for the plaintiffs’

11 road-defect claim. Chang, 373 Ga. App. at 671. See Starship Enter.

of Atlanta v. Gwinnett County, 319 Ga. 293, 297 (2024) (“Sovereign

immunity … is a threshold jurisdictional issue.”). But rather than

asking whether OCGA § 36-33-1(b) (or another statute that speaks

to municipal immunity) supplied such a waiver, the court skipped to

OCGA § 32-4-93(a) and asked only whether the trial evidence

supported findings that the planter was a “defect” in the road of

which the City had sufficient notice. And then, concluding that the

evidence supported those findings, it held that the City’s immunity

was waived. Chang, 373 Ga. App. at 670–71. In other words, the

court conflated the threshold waiver inquiry with an analysis of

whether sufficient evidence established the substantive elements of

the plaintiffs’ road-defect claim. In doing so, the court skipped the

proper threshold immunity inquiry. That inquiry, at least when a

plaintiff with a road-defect negligence claim relies on OCGA § 36-

33-1(b) as a waiver of municipal immunity, asks whether the

negligent conduct for which the plaintiff seeks to hold the

municipality liable involves the negligent performance of the

12 municipality’s ministerial duties. See OCGA § 36-33-1(b); Gatto, 312

Ga. at 167; City of Savannah v. Jones, 149 Ga. 139, 141–42 (1919).

And that inquiry is not answered by determining whether the

substantive elements of a road-defect claim are satisfied. The Court

of Appeals erred in holding otherwise.

Putting all of this together: When a plaintiff seeks to hold a

municipality liable for negligence for injuries caused by a defect in

public roads, one threshold question is whether municipal immunity

bars the suit. See Starship Enter. of Atlanta, 319 Ga. at 297. If the

plaintiff asserts that OCGA § 36-33-1(b) waives municipal

immunity for that claim, the proper inquiry asks whether the

municipality liable involves the performance of the municipality’s

ministerial duties. If so, the claim may proceed. If not, the plaintiff

must find another way past municipal immunity, if one exists.3

3 One such way, of course, is the preceding subsection of OCGA § 36-33-

1, which waives municipal immunity up to the limits of a municipality’s insurance policy that “covers an occurrence for which the defense of sovereign immunity is available.” Id. § 36-33-1(a). 13 3. Municipal Immunity Having clarified the roles of OCGA § 36-33-1(b) and

OCGA § 32-4-93(a), we can now address the threshold question

whether OCGA § 36-33-1(b)’s waiver of municipal immunity covers

the plaintiffs’ negligence claim here. The plaintiffs contend that this

waiver applies to that claim because we have long treated the

general duty to keep city streets and sidewalks safe for travel as a

ministerial duty, and negligently failing to remove the planter from

its location off the side of the road where Chang crashed breached

that duty. To resolve that argument, we must determine the scope

of this ministerial duty.

(a) To address the scope of the ministerial duty at issue, it is

important to understand that duty’s fit within the relevant legal

landscape.

Start with the line that we have said OCGA § 36-33-1(b) draws

between governmental functions (to which municipal immunity

applies) and ministerial duties (for which municipalities are subject

14 to liability). See Gatto, 312 Ga. at 166; Mitcham, 296 Ga. at 577–78.4

That line is supposed to reflect a municipal corporation’s “dual

character, the one public and the other private.” Mitcham, 296 Ga.

at 579 (quoting Wilson, 118 Ga. at 102).5 Speaking generally, a

municipal corporation exercises a “governmental function” when it

acts in its public character “as an agency of the State to enable it the

better to govern that portion of its people residing within the

municipality” and exercises its powers “for public governmental

4 Although the statute recognizes municipal immunity for “errors in performing their legislative or judicial powers,” we have long described this side of the line as “governmental functions” in addressing whether a particular municipal function is entitled to immunity under this statute, see, e.g., Gatto, 312 Ga. at 167, and that language has remained the same through each of our codes over time, from the Code of 1895 up through and including the current one. See Ga. Code of 1895 § 748 (“Municipal corporations are not liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they are liable.”); Ga. Code of 1910 § 897 (same); Ga. Code of 1933 § 69-301 (“Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or for improper or unskillful performance of their ministerial duties, they shall be liable.”); Ga. L. 1986 p. 1312 § 1 (enacting OCGA § 36-33-1(b) in its current form, which is the same as in the Code of 1933 but without the first three commas). 5 The question whether a municipality’s function is ministerial or

governmental for purposes of applying OCGA § 36-33-1(b) is not the same as the similar-sounding “discretionary or ministerial” distinction that matters in the context of official immunity. See Mitcham, 296 Ga. at 581–82. 15 purposes.” Id. (quoting Wilson, 118 Ga. at 102). And a municipal

corporation exercises a “ministerial” function when it acts “[i]n its

corporate and private character” and exercises some “franchise,”

“privilege[ ],” or “power[ ]” “for its own private advantage” rather

than for a public purpose. Id. at 578–79 (quoting Wilson, 118 Ga. at

102).

For the most part, our courts have placed various municipal

functions in these categories according to this public/private

distinction. Into the category of governmental functions, our courts

have placed functions of a “purely public nature, intended for the

benefit of the public at large, without pretense of private gain to the

municipality.” Id. at 578. Those functions have included, for

example, maintaining and operating a traffic light system, Town of

Fort Oglethorpe v. Phillips, 224 Ga. 834, 835–36 (1968); operating a

jail, Mitcham, 296 Ga. at 580 (citing Hurley v. City of Atlanta, 208

Ga. 457, 457–459 (1951)); operating a fire department, Miller v. City

of Macon, 152 Ga. 648, 648 (1922); keeping a sewerage drainage

system in sanitary condition, City Council of Augusta v. Cleveland,

16 148 Ga. 734, 735 (1919); sanitation related to public health, City of

Savannah v. Jordan, 142 Ga. 409, 413 (1914); and maintaining

public parks and recreational facilities, Cornelisen, 146 Ga. at 419–

20. Into the ministerial-duty category, on the other hand, our courts

have placed functions “involving the exercise of some private

franchise, or some franchise conferred upon the municipal

corporation by law which it may exercise for the private profit or

convenience of the corporation or for the convenience of its citizens

alone, in which the general public has no interest.” Mitcham, 296

Ga. at 578 (quotation marks omitted). Those functions have included

things like operating a city-owned rock quarry, City Council of

Augusta v. Owens, 111 Ga. 464, 477 (1900), and operating a for-

profit toll bridge, City Council of Augusta v. Hudson, 94 Ga. 135,

136–38 (1894). See also Cornelisen, 146 Ga. at 418–19 (citing

Savannah v. Cullens, 38 Ga. 334 (1868), City of Augusta v. Mackey,

113 Ga. 64 (1901), Sedlmeyr v. Fitzgerald, 140 Ga. 614 (1913))

(categorizing the operation of a city-owned market, waterworks, and

electric-light plant as ministerial functions).

17 We say that these decisions have hewed to the public/private

distinction “for the most part” because the duty at issue in this case

— roughly put, keeping city streets and sidewalks safe for travel —

appears to be an obvious outlier. We have long treated that duty as

ministerial. See, e.g., Love v. City of Atlanta, 95 Ga. 129, 132 (1894).

But that label is pretty hard to justify under the longstanding test

as we have stated and applied it. Keeping public, city-owned streets

and sidewalks safe for the public to travel on plainly benefits the

public at large, including members of the public who do not live in

the city. To perform that function, a municipality exercises

governmental powers granted by the General Assembly, not any

kind of private “franchise.” See Mitcham, 296 Ga. at 578 (quotation

marks omitted). And this is certainly not the kind of function, like

running a for-profit toll bridge or rock quarry, intended to secure a

“private profit” or a municipality’s “own private advantage.” Id.

(quotation marks omitted). Indeed, for these reasons, we have noted

on more than one occasion the “incongru[ity]” of classifying this duty

as ministerial rather than governmental. Gatto, 312 Ga. at 168 n.4.

18 See also Love, 95 Ga. at 132 (duty to keep public streets in repair

“might properly have been originally classified among the cases of

nonliability” because “[t]he duty of keeping its streets in repair is a

public duty in which the general public is interested,” “[t]he State

commits to it the discharge of those governmental duties incident to

the sovereign power, by which it is required to maintain for the use

of the general public and for the public convenience a system of roads

throughout the State,” and “the assignment of this particular duty

to municipal corporations within their limits may fairly be said to be

a delegation of what appears to us to be one of the functions of the

government”).

This is not to say that the classification of this duty as

ministerial must be reconsidered. (No party has asked us to do so,

and anyway, stare decisis would be a substantial impediment.) But

the “incongruity” of classifying this would-be governmental function

as ministerial necessarily affects how we go about determining the

scope of this duty. See Gatto, 312 Ga. at 167 n.4. As we have just

explained, the assessment of whether a particular function is

19 governmental or ministerial ordinarily focuses on the “nature,

purpose, and intended beneficiaries of the function performed by the

municipal corporation,” that is, the “public or private” question.

Mitcham, 296 Ga. at 582. Yet asking that question will not help us

figure out the boundaries of the duty here because only our

precedent, not the true nature of the duty, has put this duty into the

ministerial category. So our determination of the scope of this duty

is necessarily limited to that precedent. In other words, rather than

applying the ordinary “governmental or ministerial” test to the

conduct at issue here, we have nothing else to do but review the

precedent addressing this particular duty and ask whether this

conduct and claim fits within the bounds of the ministerial duty

outlined by that precedent.

(b) So we turn to that precedent now, keeping in mind the

precise question of scope this case presents: to what extent, if at all,

does a city’s ministerial duty to keep its streets and sidewalks safe

for travel extend to addressing potential hazards or obstructions

which — like the planter in this case — are not located in the

20 relevant street or sidewalk? Sifting through this body of precedent,

the relevant contours of the duty become apparent. As relevant to

the question of scope before us, these decisions focus on keeping

streets and sidewalks safe for ordinary travel on the parts of the

street or sidewalk intended for such travel — that is, in the lanes of

travel.

This understanding comes first from how this duty is described

in our various decisions. In City of Atlanta v. Hampton, for example,

we explained that “[i]t is very common, in stating the rule, to say

that it is the duty of a municipal corporation to keep its streets and

sidewalks in a reasonably safe condition, so that persons can pass

along them in the ordinary methods of travel in safety.” 139 Ga. 389,

392 (1913). And as to sidewalks, we clarified further that the “duty

of a city to keep a sidewalk reasonably safe for public use” is “not

confined to keeping in a safe condition a special part only of a

sidewalk which happens to be most generally used” but “extends to

all of the sidewalk intended for travel by the public as a

thoroughfare.” Id. (citing City of Atlanta v. Milam, 95 Ga. 135 (1894)

21 (syllabus by the Court); City Council of Augusta v. Tharpe, 113 Ga.

153, 156 (1901)) (emphasis added). 6 Although the language varies

slightly from decision to decision, the focus on keeping the travel

lanes of the streets and sidewalks safe for ordinary travel remains

constant. For example, in Idlett v. City of Atlanta, we described it as

“the duty of a city to keep its streets and sidewalks in a reasonably

safe condition, so that persons can pass along them in the ordinary

method of travel in safety.” 123 Ga. 821, 823 (1905). In City Council

of Augusta v. Tharpe, we held that a challenged jury charge

contained a “correct proposition of law” when it instructed that “[t]he

duty of the city is to keep a sidewalk reasonably safe for public use”

and “[t]hat extends to all of the sidewalk intended for travel by the

public as a thoroughfare, and is not confined to keeping in a safe

condition a separate part only of the sidewalk which happens to be

most generally used.” 113 Ga. at 155 (emphasis added). In City of

6 Although the case before us has to do with a city street, not a sidewalk,

the ministerial duty we seek to understand is often stated as to both and applies to both, and the principles gleaned from the “sidewalk cases” — which, given the age of most the precedent, are more numerous — are helpful to understanding the principles as to city streets. 22 Atlanta v. Perdue, we said “[t]he general rule of law is, that a

municipal corporation is bound to keep its streets and sidewalks in

a safe condition for travel in the ordinary modes, by night, as well as

by day.” 53 Ga. 607, 608 (1875) (emphasis added) And so on. See

Milam, 95 Ga. at 137 (“[T]here can be no doubt, under the rules of

law now settled by repeated adjudications in this and other

jurisdictions, that the city authorities must keep in a reasonably

safe condition all parts of its sidewalks which are intended to be

used by the public.”); Bellamy v. City of Atlanta, 75 Ga. 167, 169

(1885) (“It is the duty of the city to keep its streets and sidewalks in

a reasonably safe condition, so that persons can pass thereon in

safety by day or night.” (emphasis added)); City of Milledgeville v.

Cooley, 55 Ga. 17, 18 (1875) (“It is a general rule of law that a

municipal corporation is bound to keep its streets and sidewalks in

a safe condition for travel, in the ordinary modes, by night as well

as by day.”). Taken together, these decisions describe a duty to keep

streets and sidewalks reasonably safe for ordinary travel on the

parts of the street or sidewalk intended for such travel.

23 This articulation of the duty finds further support in the

factual context of these decisions. Our decisions squarely addressing

this duty involved plaintiffs injured during ordinary travel on a part

of the street or sidewalk intended for such travel. Pedestrians who

stepped on a broken water-meter cap, Hampton 139 Ga. at 390; fell

in a hole, Idlett 125 Ga. at 824–25, Bellamy, 75 Ga. at 168; ran into

barbed wire stretched along a sidewalk when crossing the street,

Tharpe, 113 Ga. at 155; fell “violently” over an “iron projection” that

projected four feet onto the sidewalk, Milam, 95 Ga. at 43 (syllabus

by the Court); fell into an open cellar, City of Augusta v. Hafers, 61

Ga. 48, 50 (1878); fell into a “gully,” Cooley, 55 Ga. at 18; and fell

into an “excavation,” Perdue, 53 Ga. at 607–08, were all traveling on

the sidewalk or in a public street in the ordinary course when they

encountered the obstruction or hazard that caused their injuries.

There is an important qualifier. The ministerial duty to keep

city streets and sidewalks safe for travel does not stop short of

imposing liability merely because the obstruction or hazard itself is

located or extends beyond the travel lanes. We know this from

24 decisions like Tharpe, a case involving a plaintiff who crossed a city

street and ran into a stretch of sharp wire running “along the edge

of the sidewalk.” 113 Ga. at 153. The city challenged an instruction

to the jury that “it was incumbent on the city to keep that portion of

the sidewalk immediately along the curbing, whether used

longitudinally or laterally, reasonably safe for public use.” Id. at 155.

We rejected the challenge, explaining that the duty “extends to all

of the sidewalk intended for travel by the public as a thoroughfare,”

and citing treatises for the rule that a municipality was liable for

obstructions that “adjoin the traveled way which will render its use

unsafe and dangerous.” Id. at 155–56 (citing Dwight Arven Jones, A

Treatise on the Negligence of Municipal Corporations § 77 at 144, §

78 at 147 (1892)). Cf. Parker v. Mayor & Council of Macon, 39 Ga.

725, 729 (1869) (in a nuisance case, explaining that the “duty ... to

keep the streets, lanes, alleys and sidewalks in such condition that

persons passing over or along them may do so with safety and

convenience” included protecting pedestrians from a crumbling wall

on the edge of a street that could fall on a person passing it on the

25 street).

That said, Tharpe does not, as the plaintiffs and the dissent

contend, extend this ministerial duty to keeping property outside

lanes of travel safe for traversal in case of an accident or emergency.

The plaintiff in Tharpe was crossing from a public street onto a

public sidewalk that was “part of a public street” when he ran into

the wire. Tharpe, 113 Ga. at 153–54, 156. Although the particular

place the plaintiff crossed the public street was not a “regular street

crossing” (which we take to mean a dedicated crosswalk of some

kind), we noted that it was still a part of the street he had a legal

“right” to cross, and one where another child had been injured

before. See Tharpe, 113 Ga. at 153–54, 158. And crossing the street

to get to a sidewalk on the other side is ordinary travel. 7 So by

7 As our decisions show, “ordinary” travel may look different for sidewalks and streets; the ministerial duty is to keep sidewalks safe for travel in the ways that people typically travel on sidewalks (e.g., walking), and city streets safe for travel in the ways the people typically travel on streets (e.g., driving a vehicle). See, e.g., Hampton, 139 Ga. at 391 (“The rule of duty incumbent upon a municipality as to both streets used by vehicles and sidewalks used by pedestrians is to use ordinary care to keep them in a reasonably safe condition for travel in the ordinary modes, both by day and by night.”). Moreover, what “ordinary travel” looks like in each context may

26 crossing the street where he did on his way to the public sidewalk,

the plaintiff in Tharpe was engaging in ordinary travel on parts of

the street and sidewalk intended for such travel by a pedestrian —

not traversing property outside those lanes of travel because of an

accident or emergency. 8 In short, the only rule we can reasonably

change with the times. For instance, although we might say as a general matter today that people ordinarily walk on sidewalks and drive vehicles on streets, our older decisions commonly noted how typical it was for pedestrians to use streets too, especially for crossing (and not just using marked crosswalks). See, e.g., Tharpe, 113 Ga. at 158 (rejecting jury instruction requested by the city seeking to limit its duty with regard to pedestrians crossing “from the street to the sidewalk or the reverse” because “[t]he traveler has the right to use the street by passing across it at a point where there is no crosswalk,” and does not “assume any greater risks” from “unauthorized obstructions” in doing so); Cooley, 55 Ga. at 18–19 (affirming verdict for plaintiff finding city negligent in case where pedestrian was “walking along [a] street in the night time” and fell “into a deep ditch or gully across … the public street[ ]” and broke his arm). 8 The dissent is thus mistaken when it characterizes Tharpe as a case

about “injuries sustained outside the lane of travel,” or the wire in Tharpe as dangerous only to someone who “left the lane of travel and ‘attempted to cross the street’ outside the crosswalk designated for that purpose.” As we made clear in Tharpe, at the time that case was decided more than a century ago, a pedestrian could legally cross the relevant Augusta street outside of a “regular street crossing,” see Tharpe, 113 Ga. at 154, 158 (“The traveler has the right to use the street by passing across it at a point where there is no crosswalk.”), and nothing in our precedent suggests that crossing a street to get to a sidewalk on the other side would have been understood as anything other than ordinary travel. So the plaintiff was not “le[aving] the lane of travel” and then encountering the dangerous wire, as the dissent would have it; he was engaging in ordinary travel within a part of the street system intended for such travel. 27 draw from Tharpe is that a municipality’s ministerial duty to keep

its streets or sidewalks safe for travel includes keeping people

engaging in ordinary travel on the parts of the street or sidewalk

intended for such travel safe from adjacent obstructions. 9

The plaintiffs and the dissent contend that Wilson v. City of

Atlanta, 60 Ga. 473, 477 (1878), supplies the necessary precedent in

support of their view. Wilson was injured when his horses spooked

and pulled his buggy off the side of an embankment that was built

9 The dissent claims that Tharpe “held” that the ministerial duty at issue

here “extends to all parts of the municipal street and sidewalk system on which members of the public have the right to travel.” But Tharpe did not say that, and that characterization of the duty misconceives that duty’s nature and limits. Tharpe upheld an instruction that charged the jury that the duty “extends to all of the sidewalk intended for travel by the public as a thoroughfare, and is not confined to keeping in a safe condition a separate part only of the sidewalk which happens to be most generally used.” Tharpe, 113 Ga. at 156 (emphasis added and quotation marks omitted). This instruction reflects the key focus that our body of precedent identifies for the duty: to keep city streets and sidewalks safe for ordinary travel. See, e.g., Hampton, 139 Ga. at 392; Idlett, 123 Ga. at 823; Perdue, 53 Ga. at 608; Cooley, 55 Ga. at 18. If a part of the sidewalk is used by pedestrians to get from one place to another — as a “thoroughfare,” as the instruction in Tharpe puts it — that part of the sidewalk must be kept reasonably safe for such ordinary travel to comply with the ministerial duty. And if the public has a “right” to use the whole of a sidewalk in that way, the duty protects ordinary travel over the whole of the sidewalk. But the duty is to keep the sidewalk safe for ordinary travel, not for any and all purposes. To the extent that the dissent reads Tharpe or our precedent to say otherwise, it is mistaken.

28 up in the middle of the city street. Wilson sued the city for

negligence, and after a trial, the jury found in Wilson’s favor, but the

trial court granted a new trial on the ground that the verdict was

“strongly and decidedly against the weight of the evidence.” Id. at

473. In reviewing that decision, which we affirmed, we stated that

“[t]he street should be reasonably safe for ordinary travel, including

such accidents as might, without fault on the part of the traveler,

befall him.” Id. at 477. Seizing on this broad statement, the plaintiffs

reason that accidents may require a traveler to leave the lane of

travel, so the ministerial duty to keep city streets safe for travel

must extend to keeping property outside the lanes of travel safe for

traversal in case of accidents and emergencies.

That conclusion may well be reasonable as a matter of policy,

but again, the scope of this particular ministerial duty is constrained

by our precedent. And Wilson’s statement about accidents (for which

we cited nothing) is not binding precedent expanding the scope of

the ministerial duty here. It is “axiomatic” that a holding is “limited

to the factual context of the case being decided and the issues that

29 context necessarily raises,” Schoicket v. State, 312 Ga. 825, 832

(2021), and in Wilson, we made that statement about accidents in

the context of disapproving a ruling about causation, not

determining the proper scope of a municipality’s ministerial duty.

That ruling, one of the trial court’s stated bases for granting the new

trial, was that “no matter what was the negligence of defendant in

respect to the streets,” a plaintiff “cannot recover damages” as a

general matter “where a swingle-tree becomes detached, and horses

are frightened and run away, and run over an embankment.”10

Wilson, 60 Ga. at 477. In rejecting this ruling as “too broad,” we

described a hypothetical embankment that was narrower and taller

and explained that “there could be a recovery, notwithstanding the

running away of the horses,” if “the faulty plan or structure of the

grading was the real cause of the damage.” Id. at 477 (emphasis

added). In other words, spooked horses and a broken swingle-tree

10 A “swingle-tree,” also known as a “single-tree,” “whiffle-tree” or “whipple-tree,” is a cross-piece used to connect a team of horses to a vehicle or implement. See Swingle-tree, Chamber’s Twentieth Century Dictionary (1903); Single-tree, Noah Webster, An American Dictionary of English Language (1897). 30 did not as a matter of law cut off the city’s negligence as a potential

cause of the resulting injuries. That is a holding addressing

causation, not the proper scope of a city’s ministerial duty (a term

our opinion does not mention even once). Thus, that decision cannot

be reasonably understood as binding precedent that expands the

scope of the ministerial duty at issue here.

And even if Wilson could be so understood, it still does not

support plaintiffs’ expanded view of that duty, because Wilson did

not advance the plaintiffs’ theory of liability in that case. Wilson was

riding in a horse-drawn buggy on a part of the street that ran along

the top of a 35-foot-wide embankment that was elevated 10 feet

above the normal street level and ran for 600 feet down the middle

of that street, and his horses spooked and dragged the buggy down

the embankment. See Wilson, 60 Ga. at 474, 477–78; City of Atlanta

v. Wilson, 59 Ga. 544, 545 (1877). Wilson’s claim was not that the

embankment itself should have been designed differently, or not

constructed at all, but that the city was negligent in failing to “erect

any railing or other means of protection along the embankment, for

31 the safety of vehicles.” Wilson, 59 Ga. at 544. In other words, Wilson

claimed that the City failed to keep the street safe for ordinary travel

in the lane of travel because it failed to erect a barrier that would

prevent him from leaving the lane of travel, not because it left

property off the street unsafe for traversal in case of an accident or

emergency.

Without any binding precedent that supports that expanded

view of the ministerial duty here, the claim in this case cannot be fit

within the scope of that duty. It is undisputed that Chang’s car left

the lane of travel, “slid more than 60 feet,” and crashed into the

planter where it sat “about six feet off” the road. Chang, 373 Ga.

App. at 668. There is no evidence in the record that the grassy area

where the planter sat, about six feet to the side of the paved road,

was on a part of the city street intended for ordinary travel by the

public; the City’s representative testified that the public had a

“right” to use that area (which she described as a “shoulder”), but

she then explained only that it could be used by someone driving a

vehicle “in the ... event of a[n] emergency or a need to get off the

32 roadway.” Thus, unlike the plaintiffs in any of our decisions

addressing claims within the scope of this ministerial duty, Chang

neither encountered nor suffered injury from an obstruction while

engaging in ordinary travel on a part of the street intended for such

travel. See, e.g., Hampton 139 Ga. at 390; Idlett, 125 Ga. at 824–25;

Bellamy, 75 Ga. at 168; Tharpe, 113 Ga. at 155–56; Milam, 95 Ga.

at 43; Hafers, 61 Ga. at 50; Cooley, 55 Ga. at 18; Perdue, 53 Ga. at

607–08. Put another way, the ministerial duty of a municipality to

keep city streets safe for ordinary travel does not include keeping

property outside of the lanes of travel safe for traversal in case of

accident or emergency, and so that ministerial duty was not

implicated by the plaintiff’s claim as it was litigated in this case.

4. Conclusion In light of the above, we must conclude that municipal

immunity for the plaintiffs’ road-defect negligence claim here is not

waived by OCGA § 36-33-1(b). But that is all we decide. We do not

decide whether any other potential waiver of that immunity, like

OCGA § 36-33-1(a)’s insurance-based waiver, applies. Nor do we

33 decide anything about the elements of the underlying negligence

claim, including the scope of the City’s duty of care with respect to

its right of way. (In other words, our conclusion that the claim does

not fall within the scope of this particular ministerial duty says

nothing about the City’s general duty of care relevant to this claim.)

And finally, we do not reach any issues with respect to the nuisance

claim in this case (which was a separate basis for the jury’s verdict),

including whether municipal immunity extends to that claim.

Judgment vacated and case remanded. All the Justices concur, except Ellington and Colvin, JJ., who dissent, and Peterson, C.J., and Land, J., disqualified.

34 COLVIN, Justice, dissenting.

I respectfully dissent from the majority opinion because I

believe that OCGA § 36-66-1(b) waived the City of Milton’s

municipal immunity with respect to Chang’s negligence claim.

To begin, I agree with the majority opinion’s description of the

facts in Division 1 and its explanation of the applicable legal

framework as expressed in Divisions 2 and 3(a). I therefore agree

that when determining whether OCGA § 36-33-1(b) waived the

City’s municipal immunity with respect to Chang’s negligence claim,

the proper inquiry is whether that claim was predicated on the

City’s “neglect to perform ... [its] ministerial duties.” OCGA

§ 36-33-1(b). See Maj. Op. at 13. And I further agree that, under this

Court’s precedent, a municipality’s duty to keep its streets and

sidewalks reasonably safe for ordinary travel is a ministerial one,

and that, because the categorization of this duty as ministerial is

somewhat incongruous with the principles we generally apply when

making such classifications, our determination of the scope of this

duty is limited to a review of our precedent. See Maj. Op. at 18–20.

35 But I read some of that precedent differently than the majority

opinion, and so I disagree with its analysis in Division 3(b) and the

conclusion that follows in Division 4, as explained further below.

1. The majority opinion contends that the scope of a

municipality’s ministerial duty to keep its streets and sidewalks

reasonably safe for ordinary travel is limited to the lanes of travel,

see Maj. Op. at 2, 21–24, which “includes keeping people engaging

in ordinary travel on the parts of the street or sidewalk intended for

such travel safe from adjacent obstructions.” Maj. Op. at 28.

Certainly, this formulation captures much of our precedent, as the

majority opinion correctly identifies, but I believe it fails to square

with at least two of our prior cases: Wilson v. City of Atlanta, 60 Ga.

473 (1878), and City Council of Augusta v. Tharpe, 113 Ga. 152

(1901). Following these cases, I would hold that a municipality’s

duty to keep its streets and sidewalks safe extends to “all parts of

its” municipal street system “which are intended to be used by the

public” and “over which the public ha[s] a right to pass.” Tharpe, 113

Ga. at 156 (quoting City of Atlanta v. Milam, 95 Ga. 135, 137 (1894)).

36 In Wilson and in a prior decision in the same case, Atlanta

v. Wilson, 59 Ga. 544 (1877) (“Wilson I”), we described how the

plaintiff was traveling by horse and buggy along a raised

embankment on Harris Street when his horses became frightened

and “sprang ... suddenly forward,” causing his buggy to “pull[ ] to the

side” of the embankment and be thrown down it. Wilson II, 60 Ga.

at 474. See also Wilson I, 59 Ga. at 545. As result of this incident,

the plaintiff was “seriously” injured. Wilson II, 60 Ga. at 474. The

Wilson Court explained that “Harris street was some fifty or sixty

feet wide,” and that the “embankment or grade” “along the center of

it ... [was] about ten feet high and two hundred yards long.” Id. This

structure was “thirty-five feet wide, thus leaving a part of the street

sunk below its level.” Id. The plaintiff contended that “the city was

negligent in constructing the embankment where plaintiff’s horses

ran away with the buggy and hurt him, in not providing it with

necessary railings or other means of protection, and in not keeping

the street in safe condition.” Id. at 475 (emphasis added).

A jury found for the plaintiff and awarded damages, but the

37 city moved for a new trial on several grounds, and the trial court

granted the city’s motion on each of the grounds raised. Id. The

plaintiff then appealed. Id. On appeal, we held that the trial court

was within its discretion to grant a new trial on the ground that the

verdict was against the law and the evidence but that it had erred

in granting the motion on several other grounds. Id. at 475–76. As

relevant here, we held that the trial court erred in ruling that the

plaintiff could not recover if the street was graded and drained in

accordance with a general plan adopted by the city in exercise of its

“law-making power.” Id. at 476. This was error, we explained,

because there was “no evidence in the record of any such general

plan,” and because the plaintiff’s negligence claim was predicated on

an alleged breach of the city’s failure to keep the streets “reasonably

safe for travel.” Id. Accordingly, even “if there had been evidence” of

such a plan, it would have “nothing to do with this case.” Id. And in

reversing the trial court’s ruling on other grounds, we further

explained that the city’s duty to keep its streets reasonably safe

included making them safe for “such accidents as might, without

38 fault on the part of the traveler, befall him.” Id. at 477.

In describing Wilson II, the majority opinion asserts that it was

not binding precedent on the scope of the ministerial duty at issue

here. Maj. Op. at 29. I disagree. When explaining that any evidence

that the embankment was raised in accordance with a general plan

made by the city in exercise of its law-making power would be

irrelevant, we were distinguishing the plaintiff’s negligent

maintenance claim from the type of negligent design claims for

which the city would enjoy governmental immunity. See Wilson II,

60 Ga. at 476. Put differently, we held that the city could be liable

on re-trial because the plaintiff’s claim — in which he was injured

when he left the lane of travel — alleged a breach of the city’s

ministerial duty to keep the streets reasonably safe.

Tharpe also involves a negligence claim for injuries sustained

outside the lane of travel. In Tharpe, a 12-year-old boy (acting

through “his next friend”) sued the City of Augusta for negligence,

alleging that he was injured when, in crossing between the sidewalk

and the street, he struck “a wire ... similar to a barbed wire, which

39 [the city] had ... allowed to remain stretched along the edge of the

sidewalk.” Tharpe, 113 Ga. at 153. The evidence showed that the

wire was “fastened to two telegraph poles four or five feet apart,” at

“about the height of plaintiff’s cheek from the ground” and that it

“was stretched along the curbing and parallel to it.” Id. at 154. The

Tharpe Court explained that “[t]here was no regular street-crossing

where it was situated,” and “[i]n walking along the sidewalk one

would not strike this wire unless he attempted to cross the street.”11

Id. The jury awarded damages to the plaintiff; the trial court denied

the city’s motion for new trial; and it appealed. Id.

On appeal, the City of Augusta argued that it was error for the

trial court to instruct the jury that it is

[t]he duty of the city is to keep a sidewalk reasonably safe for public use. That extends to all of the sidewalk intended for travel by the public as a thoroughfare, and is not confined to keeping in a safe condition a separate part only of the sidewalk which happens to be generally used.

11 Though not relevant to the issues here, modern readers wondering

why a barbed wire had been strung along the curb may benefit from the Court’s explanation that it had “probably [been] placed there to keep horses from backing on the sidewalk.” Id. 40 Id. at 155. The city argued that this instruction was erroneous

because it instructed the jury that the city had a duty “to keep that

portion of the sidewalk immediately along the curbing ... reasonably

safe for public use,” which the city apparently contended it did not.

But the Court rejected this argument and upheld the trial court’s

use of the instruction above. In doing so, it quoted approvingly from

City of Atlanta v. Milam, 95 Ga. 135 (1894), in which this Court

explained that “city authorities must keep in a reasonably safe

condition all parts of its sidewalks which are intended to be used by

the public” and “over which the public have a right to pass.” Id. at

156 (quoting Milam, 95 Ga. at 137). In other words, the Tharpe

Court held that a municipality’s duty extends to all parts of the

municipal street and sidewalk system on which members of the

public have the right to travel, including the area where the plaintiff

in Tharpe was injured, which was outside of each of the lanes of

travel: the site of the plaintiff’s injury was in between the lane for

pedestrian travel on the sidewalk and the lane for horse and vehicle

travel on the street, and it was also some distance removed from the

41 crosswalk designating the lane of travel for pedestrians crossing the

street.

As stated above, the majority opinion contends that a city’s

ministerial duty to keep its streets and sidewalks reasonably safe

for ordinary travel is limited to the areas intended for such travel,

which it refers to as the “lanes of travel.” Maj. Op. at 2, 21. And the

majority opinion contends that Tharpe provides an “important

qualifier” to this rule, by clarifying that this ministerial duty

“includes keeping people engaging in ordinary travel on the parts of

the street or sidewalk intended for such travel safe from adjacent

obstructions.” Maj. Op. at 28. But this “qualifier” does not quite

capture Tharpe’s holding because the wire at issue in Tharpe (which

the majority opinion considers an adjacent obstruction) did not

render the lanes of travel (the street, the sidewalk, or the crosswalk)

unsafe for ordinary travel. As Tharpe made clear, people “walking

along the sidewalk” — that is, people traveling in the lane intended

for ordinary pedestrian travel — “would not strike the wire.” Tharpe,

113 Ga. at 154. The wire posed a danger only to people who left the

42 lane of travel and “attempted to cross the street” outside the

crosswalk designated for that purpose. Id.12

Moreover, in attempting to read Tharpe in harmony with this

Court’s other precedents, the majority opinion equates areas in

which the public has a right to travel with areas intended for

ordinary travel, which are the very areas the majority opinion

contends are within the scope of a city’s ministerial duty. See Maj.

Op. at 28, n.9. But if these two areas are the same, then the majority

should accept that the City of Milton’s ministerial duty encompassed

the site of Chang’s collision: it is undisputed by the parties that the

planter with which Chang collided was in the shoulder of Batesville

Road, and that the shoulder of the road was an area that was

intended to be used by the public and in which the public had a right

to travel. It is inconsistent for the majority opinion to contend that

a city’s ministerial duty includes parts of the street in which the

12The majority opinion argues that the wire was both in the area intended for ordinary travel and an obstruction adjacent to that area. Compare Maj. Op. at 26–27, with Maj. Op. at 27–28. But it cannot be both. Given the Tharpe Court’s description of the wire’s location, I think it is better characterized as outside the relevant lanes of travel. 43 public has a right to travel while also holding that the City of

Milton’s ministerial duty did not include the shoulder of Batesville

road.13

2. As stated above (and as explained in the majority

opinion), OCGA § 36-33-1(b) waives municipal immunity for claims

involving a municipality’s neglect to perform its ministerial duties.

See OCGA § 36-33-1(b); Maj. Op. at 11. The City of Milton had a

ministerial duty to keep its streets reasonably safe for ordinary

travel, and, in my view, our precedent provides that this duty

encompassed all portions of the street “over which the public ha[s] a

right to pass.” Tharpe, 113 Ga. at 156. It is undisputed that the

13 The majority opinion contends that there was “no evidence in the record” that the planter, which was on the shoulder of Batesville Road, “was on a part of the city street intended for ordinary travel by the public.” Maj. Op. at 32 (emphasis added). To make this claim, it discounts statements by the City’s own expert that the shoulder could be used “in the ... event of a[n] emergency or a need to get off the roadway.” Id. at 32–33. In the majority opinion’s view, such travel is not ordinary travel, and so the expert’s statement is not evidence that the shoulder could be used for ordinary travel. I see it differently: deposition testimony that the shoulder could be used in an emergency was evidence about the type of travel which is ordinary for the shoulder, rather than evidence that the shoulder was not used for ordinary travel. Just as “‘ordinary’ travel may look different for sidewalks and streets,” Maj. Op. at 26, n.7, so too may ordinary travel look different on various parts of the street. 44 planter at issue in this case was located in the shoulder of Batesville

Road, an area in which the public had a right to travel. It follows

that Chang’s negligence claim implicated Milton’s ministerial

duties, and so OCGA § 36-33-1(b) waived the City’s municipal

immunity as to Chang’s claim. Because the majority opinion holds

the contrary, I respectfully dissent.

I am authorized to state that Justice Ellington joins in

this dissent.