KENDRA RYLES AS ADMINISTRATOR OF THE ESTATE OF TAVARIUS RIDGEWAY v. CITY OF ATLANTA

• Court: Court of Appeals of Georgia
• Decided: June 18, 2025
• Docket: A25A0485
• Status: Published

Opinion

SECOND DIVISION RICKMAN, P. J., GOBEIL and DAVIS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

June 18, 2025

In the Court of Appeals of Georgia A25A0485. RYLES et al. v. CITY OF ATLANTA.

RICKMAN, Presiding Judge.

Kendra Ryles, as Administrator of the Estate of Tavarius Ridgeway, and Zahra

Imani Ridgeway, as surviving minor child of Tavarius Ridgeway (collectively,

“Ryles”), appeal the trial court’s order granting the City of Atlanta’s motion to

dismiss. Ryles contends that the trial court erred in ruling that sovereign immunity

barred her negligence claim and in ruling that Ryles could not base a nuisance claim

on the City’s failure to place crosswalks on the streets. For the reasons that follow, we

affirm.

On appeal, we review the grant of any motion to dismiss de novo, and a motion to dismiss should not be granted unless the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof. We construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff’s favor.

(Citation and punctuation omitted.) City of Norcross v. Johnson, 363 Ga. App. 78, 78

(870 SE2d 564) (2022). So viewed, the complaint alleged that Donald Lee Hollowell

Parkway (the “Parkway”) is a four-lane state road located within the City. On

November 24, 2022, Tavarius Ridgeway was attempting to cross the Parkway on foot

when he was hit and killed by a hit-and-run driver. There is no pedestrian crossing on

the Parkway near where Tavarius attempted to cross.

Ryles subsequently filed this wrongful death action against the City, the Georgia

Department of Transportation (“GDOT”), the driver of the car, Alonzo Demontez

Dorsey, and other entities. Ryles alleged that the City and GDOT shared authority

and control over the design and maintenance of the Parkway as well as the

responsibility for its safety for use by the motoring public and pedestrians. Ryles

further alleged that the City and GDOT were aware that the Parkway was dangerous

for pedestrians but failed to include sufficient crosswalks and other safety devices

designed to protect pedestrians, including in the area where Tavarius was struck by

2 the car.1 As a result, Ryles asserted, the City was liable for the negligent design,

inspection, and maintenance of the Parkway and for failing to take appropriate action

to eliminate a public nuisance that resulted in Tavarius’s fatal injuries.

The City filed a motion to dismiss on the grounds that (1) sovereign immunity

barred Ryles’s negligence claim, (2) it cannot be held liable under OCGA § 32-4-932

for the condition of the Parkway, and (3) there is no waiver of sovereign immunity for

nuisance claims based on a municipality’s failure to make a road safer. Ryles opposed

the motion and submitted an affidavit from a highway engineering expert who

reiterated the complaint’s allegations that the Parkway is a dangerous street in need

of additional crosswalks and other safety devices designed to protect pedestrians and

that the City had control over and was liable for the negligent design and maintenance

1 The complaint alleged that the City and GDOT were previously involved in litigation related to another pedestrian who was struck and killed on the Parkway near where Tavarius was hit. See Wallace v. City of Atlanta, 368 Ga. App. 260 (889 SE2d 438) (2023). 2 “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.” OCGA § 32-4-93 (a). 3 of the Parkway. The trial court granted the City’s motion, ruling in favor of the City

on all three asserted grounds, and dismissed all claims against it. This appeal followed.

1. Ryles contends that the trial court erred in granting the City’s motion to

dismiss based on sovereign immunity because the City waived that immunity by

negligently performing its ministerial function of maintaining its street in a reasonably

safe condition for travel.

Under Georgia law, claims against municipalities are barred by sovereign

immunity unless that immunity is waived by the General Assembly. Ga. Const. of

1983, Art. IX, Sec. II, Par. IX; OCGA § 36-33-1 (a) (with limited exceptions, “it is the

public policy of the State of Georgia that there is no waiver of the sovereign immunity

of municipal corporations of the state and such municipal corporations shall be

immune from liability for damages”). Although municipalities are not liable for failure

to perform or for errors in performing their governmental functions, they are liable for

failure to perform or improper or unskillful performance of their ministerial functions.

OCGA § 36-33-1 (b); City of Atlanta v. Mitcham, 296 Ga. 576, 578 (1) (769 SE2d 320)

(2015); Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 199-200 (1) (834

SE2d 593) (2019).

4 “The determination of whether a function is governmental or ministerial in

character for purposes of municipal sovereign immunity focuses broadly on the

nature, purpose, and intended beneficiaries of the function performed by the

municipal corporation.” Mitcham, 296 Ga. at 581-582 (2). Traditionally,

“[g]overnmental functions . . . have been defined as those of a purely public nature,

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

municipality.” Mitcham, 296 Ga. at 578 (2). In comparison, ministerial functions “are

recognized as those involving the exercise of some private franchise, or some franchise

conferred upon the municipal corporation by law which it may exercise for the private

profit or convenience of the corporation or for the convenience of its citizens alone,

in which the general public has no interest.” (Citation and punctuation omitted.) Id.

Here, Ryles alleged that the City owed a duty to Tavarius “to provide a

sufficient number of signalized pedestrian crossings on [the Parkway] so as to provide

safe passage across the street by any pedestrian.” Ryles further alleged that the City

breached that duty and that its negligence proximately caused Tavarius’s death.

As recognized by the trial court, the appellate courts in Georgia have held that

deciding whether to erect or not to erect a traffic control device or to maintain it after

5 installation is an exercise of a governmental function by a municipality, and the

municipality is not liable for any negligent performance of this function. See Town of

Fort Oglethorpe v. Phillips, 224 Ga. 834, 836 (165 SE2d 141) (1968); Arthur v. City of

Albany, 98 Ga. App. 746, 747-748 (2) (106 SE2d 347) (1958). This general rule has

been applied to a city’s failure to repair a defective traffic light, Phillips, 224 Ga. at

836, failure to maintain and properly place a stop sign, Albertson v. City of Jesup, 312

Ga. App. 246, 249 (1) (718 SE2d 4) (2011), failure to place signs or barricades to warn

that a street is a dead end, Englander v. City of East Point, 135 Ga. App. 487, 487 (218

SE2d 161) (1975), and failure to replace a fallen stop sign, Arthur, 98 Ga. App. at 747-

748 (2).

Ryles acknowledges this authority but argues that conduct that may typically

constitute a governmental function may still be classified as a ministerial function

where the conduct is related to the maintenance of streets and sidewalks to keep them

safe for travel. In support of this argument, Ryles points to well-settled law that a

municipality has a duty to maintain city streets and sidewalks in a reasonably safe

condition for travel. See Mayor & Aldermen of the City of Savannah v. Herrera, 343 Ga.

App. 424, 428 (1) (808 SE2d 416) (2017); Roquemore v. City of Forsyth, 274 Ga. App.

6 420, 422 (617 SE2d 644) (2005). A city’s liability in this regard is limited, however,

by OCGA § 32-4-93 (a), which, stated positively, means that “municipalities generally

have a ministerial duty to keep their streets in repair, and they are liable for injuries

resulting from defects [in the public roads] after actual notice, or after the defect has

existed for a sufficient length of time for notice to be inferred.” (Citation and

punctuation omitted.) Herrera, 343 Ga. App. at 428 (1).

The question then becomes what constitutes a defect in the public roads under

OCGA § 32-4-93 (a) and, in particular, whether the lack of crosswalks or other safety

devices designed to protect pedestrians is considered a defect under the statute. This

Court has interpreted the reference to “defects” in the Code section to refer to “the

physical condition of the street itself,” including “defects brought about by the forces

of nature and by persons and which render the street unsafe” and “objects adjacent

to and suspended over the street.” McKinley v. City of Cartersville, 232 Ga. App. 659,

660 (1) (503 SE2d 559) (1998). Consistent with that interpretation, this Court

concluded in City of Milton v. Chang, 373 Ga. App. 667 (906 SE2d 784) (2024), that

it was for the jury to determine whether a concrete planter located on the shoulder of

the road and within the city’s right-of-way, which posed a hazard for vehicles leaving

7 the travel lanes, was a defect in the road. Id. at 673 (1) (a) (i) (a). The issue of what

constitutes a “defect” was also left to the jury in Herrera, 343 Ga. App. at 430 (1)

(jury must determine whether tree located on city’s right-of-way obstructed the view

of oncoming traffic such that it was a “defect” within the meaning of OCGA §

32-4-93); Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528, 530 (2) (307 SE2d

47) (1983) (question of fact remained as to whether power pole located six inches

outside the curb line was a defect in the street that would subject the city to potential

liability for injuries suffered by the plaintiff after his arm, which was propped in an

open bus window, became wedged between the bus and the pole); and Barnum v.

Martin, 135 Ga. App. 712, 716-717 (3) (219 SE2d 341) (1975), disapproved of on other

grounds by Dept. of Pub. Safety v. Ragsdale, 308 Ga. 210, 214, n.7 (839 SE2d 541)

(2020) (evidence would support jury’s finding that street at the site of the accident

containing “a sharp curve with reverse super-elevation” that tended to force cars off

the road was a defect under a predecessor to OCGA § 32-4-93 (Code § 69-303)).3

3 Former Code § 69-303 provided: “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 actual notice thereof, or such defect has [not] existed for a sufficient length of time for notice to be inferred.” Hammock v. City Council of Augusta, 83 Ga. App. 217, 218 (1) (63 SE2d 290) (1951). 8 When addressing a city’s potential liability for injuries alleged to have been

caused by the failure to install a traffic control device, this Court has taken a different

stance, holding that a “defect” does not include the lack of a barrier on top of a

retaining wall on the shoulder of a road, City of Alpharetta v. Hamby, 352 Ga. App. 511,

515 (1) (b) (i) (835 SE2d 366) (2019), the failure to install a streetlight, Glover v. Ga.

Power Co., 347 Ga. App. 372, 378 (1) (819 SE2d 660) (2018), the failure to erect a stop

sign, McKinley, 232 Ga. App. at 660 (1), or the lack of a sign or barricade, Englander,

135 Ga. App. at 488. Although this Court has not previously addressed whether a lack

of crosswalks can be considered a defect in the public roads under OCGA § 32-4-93

(a), we conclude that the City’s alleged failure to install “a sufficient number of

signalized pedestrian crossings” on the Parkway is more like the failures outlined in

the cases in this paragraph and therefore does not constitute a defect in the road for

purposes of the statute. As a result, the trial court did not err in granting the City’s

motion to dismiss Ryles’s negligence claim.

2. Ryles contends that the trial court erred in ruling that she could not base a

claim for nuisance on the City’s failure to place crosswalks on the Parkway.

9 Our Supreme Court has recognized that “[w]hile a municipality enjoys

sovereign immunity from liability for negligent acts done in the exercise of a

governmental function, it may be liable for damages it causes to a third party from the

creation or maintenance of a nuisance.” Hibbs v. City of Riverdale, 267 Ga. 337, 337

(478 SE2d 121) (1996); see also Phillips, 224 Ga. at 838 (“a municipal corporation

cannot under the guise of performing a governmental function create a nuisance

dangerous to life or health”). “The difficulty arises in determining what conduct or

act on the part of a municipality will result in the creation or maintenance of a

nuisance, as opposed to an action in negligence.” Hibbs, 267 Ga. at 338.

To assist in making this determination, our Supreme Court has provided some

guidance. In City of Bowman v. Gunnells, 243 Ga. 809 (256 SE2d 782) (1979), the

Court established guidelines for determining whether a municipality will be liable for

creating or maintaining a nuisance: the defect or degree of misfeasance must exceed

the concept of mere negligence; the act complained of must be of some duration and

the maintenance of the act or defect must be continuous or regularly repetitious; and

the municipality must have failed to act within a reasonable time after knowledge of

10 the defect or dangerous condition. Id. at 811 (2). And in connection with its

consideration of jury instructions on the subject, the Court explained:

To be held liable for maintenance of a nuisance, the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and, if the municipality did not perform an act creating the dangerous condition . . . the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.

(Citations omitted.) Mayor of Savannah v. Palmerio, 242 Ga. 419, 426-427 (3) (i) (249

SE2d 224) (1978).

Georgia appellate courts have drawn a distinction between the negligent

maintenance of something erected by the municipality in its discretion in such a

manner as to create a dangerous nuisance and a discretionary nonfeasance. See Gatto

v. City of Statesboro, 312 Ga. 164, 172 (2) (860 SE2d 713) (2021). Examples of cases

falling in the first category include Phillips, 224 Ga. 834,where our Supreme Court

held that a plaintiff had set forth a cause of action for “the operation and maintenance

of a nuisance” when a municipality continued operation of a traffic light that would

11 flash either red or green on all four sides of the intersection simultaneously, resulting

in numerous accidents of which the municipality was fully aware. Id. at 838. And in

City of Fairburn v. Cook, 188 Ga. App. 58 (372 SE2d 245) (1988), disapproved of on

other grounds by Dept. of Pub. Safety v. Ragsdale, 308 Ga. 210, 214, n.7 (839 SE2d 541)

(2020), this Court upheld the trial court’s denial of the city’s motion for directed

verdict on an injured motorist’s claim that the city had created and maintained a

nuisance when it installed traffic signals in a manner so as to be obscured by a

preexisting railroad bridge. Id. at 65 (6); see also Carter v. Mayor & Alderman of the

City of Savannah, 200 Ga. App. 263, 266 (1) (407 SE2d 421) (1991) (physical

precedent only) (genuine issues of material fact remained as to whether city

maintained a nuisance by failing to properly maintain a stop sign that had been

removed from an intersection); Mayor & Aldermen of City of Savannah v. AMF, Inc.,

164 Ga. App. 122, 122-123 (295 SE2d 572) (1982) (evidence sufficient to create a jury

issue on nuisance claim against the city where protruding limb of tree in the right-of-

way of the street, which city was responsible for maintaining, damaged trailer).

Cases falling in the second category include Tamas v. Columbus, 244 Ga. 200

(259 SE2d 457) (1979), a wrongful death action brought by the mother of a child who

12 was traveling across a bridge and attempted to walk down the steep slope to the creek

below when she slipped, fell into the creek, and ultimately drowned. Id. at 200-201.

Addressing the plaintiff’s claim that the proximate cause of her daughter’s drowning

was the city’s negligence in failing to maintain the road in a safe condition, thereby

creating a nuisance, our Supreme Court found the city’s failure to provide “any

fencing barriers, obstructions, or curbing to prevent parties from falling from the road

or the areas immediately adjacent thereto” or “any signs or warning devices to warn

travelers of the dangerous propensities of the creek” to be an “example of

discretionary nonfeasance on the part of the defendant city,” and held that the city

was not liable to the plaintiff. Id. at 201-202. More recently, this Court addressed a

plaintiff’s claim that the City of Alpharetta had “permitted the existence and

maintenance of a nuisance” by failing to prohibit left turns at the intersection where

the plaintiff was injured, despite the city’s knowledge of the hazardous condition this

created, and held that the trial court erred in denying the city’s motion to dismiss the

plaintiff’s nuisance claim because the plaintiff had only alleged that the city allowed

a nuisance to exist, not that the city had taken any action that created a dangerous

condition. City of Alpharetta v. Vlass, 360 Ga. App. 432, 436-437 (1) (861 SE2d 249)

13 (2021).The decision in Vlass is consistent with prior decisions of this Court. See

McLaughlin v. City of Roswell, 161 Ga. App. 759, 760 (289 SE2d 18) (1982) (finding no

merit to argument that the city created a nuisance by failing to identify school safety

crossings across a public roadway in front of a school, relying on predecessor to

OCGA § 36-33-2);4 Hancock v. City of Dalton, 131 Ga. App. 178, 181 (205 SE2d 470)

(1974) (city’s failure to maintain traffic signals at a railroad crossing did not constitute

a nuisance); Bowen v. Little, 139 Ga. App. 176, 176-177 (228 SE2d 159) (1976)

(affirming dismissal of the city from an action alleging nuisance based on the city’s

failure to install a traffic light at an allegedly dangerous intersection).

Here, we are presented with a case of non-action by the City, similar to the

situation in Vlass, not a case where the City installed pedestrian crosswalks and failed

to maintain them. Based on existing precedent, which does not support the extension

of a nuisance principle to this type of situation, we affirm the trial court’s dismissal of

Ryles’s nuisance claim.

Judgment affirmed. Gobeil and Davis, JJ., concur.

4 The predecessor statute at issue provided, “Where municipal corporations are not required by statute to perform an act, they may not be held liable for exercising their discretion in failing to perform the same.” McLaughlin, 161 Ga. App. at 760. 14