As a general rule, it is very difficult, though not impossible, to sue the government. This difficulty arises from the doctrine of sovereign immunity, which prevents suits against governmental entities, unless an exception is specifically provided. One of those exceptions relates to the obligation of a city to properly maintain its streets and sidewalks, and allows for the recovery of damages by those injured by a citys negligence in this regard.
Sovereign immunity is a common law doctrine with ancient roots that has been recognized in the State of Georgia since at least 1784. As the Supreme Court of Georgia noted in Gilbert v. Richardson, 264 Ga. 744 (1994), the term sovereign, in sovereign immunity, derives from the historical principle that the king can do no wrong and the immunity of the sovereign was historically justified as a recognition that it was a contradiction of the sovereignty of the king to allow him to be sued as of right in his own courts. In that same case, the Supreme Court also noted that a more modern purpose of the doctrine is to preserve the protection of the public purse , or, in other words, to safeguard from private claims the taxpayers funds through which governments operate.
When it comes to city governments, sovereign immunity applies, however the Georgia Constitution permits the legislature to waive the immunity of cities (also referred to as municipalities or municipal corporations), and the Georgia General Assembly has done so, in part, as provided in O.C.G.A. 36-33-1(b), which states that: 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 improper or unskillful performance of their ministerial duties, they shall be liable.
So the question then becomes whether a particular action, or inaction, on the part of a city constitutes a ministerial duty such that the city could be held liable for any negligence. When it comes to the maintenance of city streets and sidewalks, the courts have held, in City of Atlanta v. Atlantic Realty Co., 205 Ga.App. 1 (1992) and other cases, that this is a ministerial duty, and thus a person injured as a result of a citys failure to properly maintain its streets and sidewalks can, in fact, bring a negligence claim against the city. As stated in the case of DeWaters v. City of Atlanta, 169 Ga.App. 41 (1983), [a] municipality is bound to use ordinary care to keep its public streets and sidewalks, which are open for public use, in a safe condition for travel in the ordinary modes, by night as well as by day, and in case of failure to exercise such care, the city is liable for damages resulting therefrom.
One recurring issue in this area, which has resulted in a number of recent lawsuits, including some filed by this firm, are claims that certain defective water meter covers in city sidewalks have led to injuries to pedestrians who have walked on them and fallen into the resulting hole when the cover gave way and collapsed.
Since a city is required to properly maintain its sidewalks so that they are safe for ordinary travel, under certain circumstances a defective water meter cover in the sidewalk can be a basis for a negligence claim against the city, however the window for these types of claims, or similar claims, is relatively narrow and there are many scenarios where recovery may not be possible.
Some of the key things to keep in mind are as follows.
First, the obstruction or defect must be in the sidewalk itself, or some area intended for pedestrian traffic. Even if it is something maintained by the city, if it is not part of a proper walkway, it will not likely give rise to liability. For example, in the case of Moore-Sapp Investors v. Richards, 240 Ga.App. 798 (1999), the city was not liable when a pedestrian fell in a city water meter hole, because the hole was located over nine feet from the sidewalk, on private property that the pedestrian had cut across as a shortcut on his way to the grocery store.
Second, any claim against a city requires what is known as an ante litem notice, which is a written notice, required by statute to contain specific information that must be provided to the city within six months of the event giving rise to the claim. In the absence of a proper ante litem notice, even an otherwise viable claim will be lost, which means that it is vitally important that any claim against a city be noticed as required by the statute. In Simmons v. Mayor of Savannah, 303 Ga.App. 452 (2010), a pedestrian who claimed that she was injured when she tripped over improperly installed water meter boxes, which were located in the grass between the street and the sidewalk, lost her case completely because her ante litem notice to the city contained an incorrect address for the location of the incident. This result was affirmed by the Court of Appeals, in spite of the City receiving actual notice of a claim, investigating the proper location, repairing the water meters in question, and evaluating and twice denying Simmonss claim in writing. Judge Doyle noted in her special concurrence that because of the error in the ante litem notice, she was constrained to join in the judgment of the majority, even though it was an overly harsh and unfair result when the spirit and purpose of the ante litem statute was accomplished [and] it is absurd that this claim would be dismissed because of a typographical error that in no way impacted the Citys ability to conduct its investigation (which had already occurred) or its ability to determine if the claim should be settled without litigation. The moral, of course, is that a proper ante litem notice is critical for any successful claim against a city, and can easily be fatal to a claim if it is flawed or not provided within the short six month time frame.
Finally, it is also important to bear in mind that the types of claims discussed here apply with respect to cities, but not necessarily counties, which generally enjoy greater sovereign immunity protections. For example, in Rutherford v. DeKalb County, 287 Ga.App. 366 (2007), a pedestrian who walked across a water meter cover maintained by the county claimed that she was injured when it collapsed beneath her, and her case was dismissed because, unlike cities, [c]ounties are subdivisions of the state government [and] [a] countys immunity is thus complete unless waived by statute, and includes protection from suits involving claims of negligence, such as the one here.
In summary, while sovereign immunity generally precludes claims against governmental entities, in the case of city governments, the legislature has waived immunity with respect to violations of ministerial duties, such as the duty to properly maintain city streets and sidewalks and the duty of ordinary care to keep the streets and sidewalks safe for ordinary travel. It is crucial, however, that any such claim be properly handled, in order to ensure that all special requirements, including ante litem notice, are fulfilled, and, if the circumstances are such that the city is not liable, that any other responsible parties are identified and included in any claim for damages.
DISCLAIMER: The information herein is for educational purposes only and does not constitute legal advice. For any legal matters, we urge you to take the advice of an attorney familiar with your case.
More Articles
Norcross High School Mock Trial 2023 Team advances to the Georgia State Mock Trial Finals Competition
Forsyth County has adopted the uniform rules of the road for Georgia
