2020 Georgia Code
Title 32 - Highways, Bridges, and Ferries
Chapter 2 - Department of Transportation
Article 1 - General Provisions
§ 32-2-2. Powers and Duties of Department Generally

1. The powers and duties of the department, unless otherwise expressly limited by law, shall include but not be limited to the following:
   1. The department shall plan, designate, improve, manage, control, construct, and maintain a state highway system and shall have control of and responsibility for all construction, maintenance, or any other work upon the state highway system and all other work which may be designated to be done by the department by this title or any other law. However, on those portions of the state highway system lying within the corporate limits of any municipality, the department shall be required to provide only substantial maintenance activities and operations, including but not limited to reconstruction and major resurfacing, reconstruction of bridges, erection and maintenance of official department signs, painting of striping and pavement delineators, furnishing of guardrails and bridge rails, and other major maintenance activities; and, furthermore, the department may by contract authorize and require any rapid transit authority created by the General Assembly to plan, design, and construct, at no cost to the department and subject to the department's review and approval of design and construction, segments of the state highway system necessary to replace those portions of the system which the rapid transit authority and the department agree must be relocated in order to avoid conflicts between the rapid transit authority's facilities and the state highway system;
   2. Except for appropriations to authorize the issuance of general obligation debt for public road work, or to pay such debt, the department shall be the state agency to receive and shall have control and supervision of all funds appropriated for public road work by the state and activities incident thereto from the net proceeds of motor fuel tax, as provided in Article III, Section IX, Paragraph VI(b) of the Constitution of Georgia and any other funds appropriated or provided for by law for such purposes or for performing other functions of the department.If the General Assembly fails to appropriate all of the net proceeds of the motor fuel tax to the department, to the State of Georgia General Obligation Debt Sinking Fund, and to counties for public road work and activities incident thereto, any such unappropriated part of such funds, exclusive of those proceeds required by law to be provided as grants to counties for the construction and maintenance of county roads, shall be made available to the department by the state treasurer, notwithstanding any provisions to the contrary in Part 1 of Article 4 of Chapter 12 of Title 45, the "Budget Act";
   3. The department shall provide for surveys, plans, maps, specifications, and other things necessary in designating, supervising, locating, abandoning, relocating, improving, constructing, or maintaining the state highway system or any part thereof, or any activities incident thereto, or in doing such other work on public roads as the department may be given responsibility for or control of by law;
   4. The department shall reimburse the Department of Law for expenses incurred when the Attorney General of Georgia assigns any assistant attorney general or any deputy assistant attorney general to perform specific legal services in connection with the validation of any bonds as authorized by Code Section 45-15-16 or in connection with contract lawsuits and the acquisition of rights of way for any project on the state highway system constructed or to be constructed by the department and when such services are designated by the Attorney General to include specific items of legal services involving the trial or preparation for trial of individual condemnation cases, contract lawsuits, and related matters on such project or projects, or a group or series of condemnation cases, contract lawsuits, and related matters in connection with a specific project or projects; provided, however, that no such reimbursement shall be made until the Attorney General has submitted a statement of the expenses of such legal services to the department, which statement shall include the name of the assistant attorney general performing such services, the items of legal services performed and the cost thereof, and, further, that no reimbursement shall be made for the expenses of legal services for contract lawsuits unless such services had the advance approval of the commissioner;
   5. The department shall have the authority to negotiate, let, and enter into contracts with the Georgia Highway Authority, the State Road and Tollway Authority, any person, any state agency, or any county or municipality of the state for the construction or maintenance of any public road or any other mode of transportation or for the benefit of or pertaining to the department or its employees in such manner and subject to such express limitations as may be provided by law;
   6. The department shall have the authority to negotiate and enter into reciprocal agreements and contracts with other states or agencies or subdivisions thereof concerning public roads and other modes of transportation and activities incident thereto;
   7. The department and the State Road and Tollway Authority shall be the proper agencies of the state to discharge all duties imposed on the state by any act of Congress allotting federal funds to be expended for public road and other transportation purposes in this state. The department shall have the authority to accept and use federal funds; to enter into any contracts or agreements with the United States or its agencies or subdivisions relating to the planning, financing, construction, improvement, operation, and maintenance of any public road or other mode or system of transportation; and to do all things necessary, proper, or expedient to achieve compliance with the provisions and requirements of all applicable federal-aid acts and programs. Nothing in this title is intended to conflict with any federal law; and, in case of such conflict, such portion as may be in conflict with such federal law is declared of no effect to the extent of the conflict;
   8. The department shall have the authority to exercise the right and power of eminent domain and to purchase, exchange, sell, lease, or otherwise acquire or dispose of any property or any rights or interests therein for public road and other transportation purposes or for any activities incident thereto, subject to such express limitations as are provided by law;
   9. The department and its authorized agents and employees shall have the authority to enter upon any lands in the state for the purpose of making such surveys, soundings, drillings, and examinations as the department may deem necessary or desirable to accomplish the purposes of this title; and such entry shall not be deemed a trespass, nor shall it be deemed an entry which would constitute a taking in a condemnation proceeding, provided that reasonable notice is given the owner or occupant of the property to be entered and that such entry shall be done in a reasonable manner with as little inconvenience as possible to the owner or occupant of the property;
   10. In locating, relocating, constructing, improving, or maintaining any road on the state highway system, the department shall have the authority to control or limit access thereto, including the authority to close off or regulate access from any part of any public road on a county road system or municipal street system to the extent necessary in the public interest;
   11. The department shall have the authority to construct and to perform substantial maintenance of public roads within the boundaries of state parks and on main access roads leading into such parks;
   12. 1. The department shall have the authority to formulate, promulgate, and enforce rules and regulations setting minimum safety standards for bridges on federal-aid public roads and to inspect and close any bridge on any such public road which does not comply with the minimum standards set by the department and which the department determines is unsafe for public travel. No new bridge shall be constructed on any such public road without there first having been obtained a permit for its construction from the department, such permit to be issued only where the proposed bridge will meet the minimum standards set by the department.
       2. The department may inspect and determine the maximum load, weight, and other vehicular dimensions which can be safely transported over each bridge on the state highway system and may post on each such bridge a legible notice showing such maximum safe limits. It shall be unlawful for any person to haul, drive, or bring onto any bridge any vehicle, load, or weight which in any manner exceeds the maximum limits so ascertained and posted on such bridge;
   13. The department shall have the authority to establish, maintain, and operate ferries as part of a public road and to authorize and issue permits for any state agency, any county or municipality, or any private person to establish, maintain, and operate ferries as part of a public road whenever, in the discretion of the department, such ferries are reasonably necessary and in the best interest of the public. All such ferries shall be operated subject to such rules and regulations as the department may adopt to protect the public interest, and the authorization of any such ferry may be revoked whenever, in the discretion of the department, its continued operation is no longer necessary or in the best interest of the public;
   14. The department shall have those duties and powers in regard to programs relating to the Metropolitan Atlanta Rapid Transit Authority established by subsection (i) of Section 8 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), particularly as amended by Section 5 of an Act approved March 16, 1971 (Ga. L. 1971, p. 2092);
   15. Reserved;
   16. Reserved;
   17. 1. Subject to general appropriations for such purposes, the department is authorized to plan for and establish a long-term policy in regard to the establishment, development, and maintenance of aviation and aviation facilities in the state; to promote and encourage the use of aviation facilities of the state for air commerce in the state, between the state and other states, and between the state and foreign countries; to cooperate with, counsel, and advise political subdivisions of the state and other departments, boards, bureaus, commissions, agencies, or establishments, whether federal, state, local, public, or private, for the purpose of promoting and obtaining coordination in the planning for and in the establishment, development, construction, maintenance, and protection of a system of air routes, airports, landing fields, and other aviation facilities in the state.
       2. Subject to general appropriations for such purposes, the department is authorized to construct or to contract with any state agency, political subdivision, authority, or person for the construction of airports and of facilities and appurtenances incident to their operation. The authority and limitations of Article 4 of this chapter pertaining to department contracts and subcontracts for construction of public roads shall likewise apply to such airport construction contracts; provided, however, that such a contract when negotiated with a political subdivision shall not be subject to the limitation of subparagraph (d)(1)(A) of Code Section 32-2-61 pertaining to the average bid price for the 60 day period preceding the making of the contract. Article 1 of Chapter 3 and Chapter 7 of this title shall apply to the acquisition or disposition of land or interests therein for such airport construction.
       3. Subject to general appropriations for such purposes, the department is authorized to establish air markers at appropriate locations throughout the state to facilitate air navigation within the state. Said markers shall consist of painting on appropriately located roofs of buildings the names of towns or cities within which such buildings are located, such names to be painted in sufficient size to be legible under good visibility conditions from a height of at least 3,000 feet. The department is authorized to obtain roof releases from the owners of buildings upon which air markers are to be painted or otherwise to obtain permission from such owners to use such roofs for such purposes and to pay the owners reasonable and nominal rentals therefor if such payment is necessary in order to obtain the appropriate permission for the use of such roofs for such purposes.
       4. Subject to general appropriations for such purposes, the department is authorized to maintain or to control for the maintenance of department owned or department leased airports, their facilities, and appurtenances incident to their operation. The authority and limitations of Article 4 of this chapter pertaining to contracts and subcontracts for maintenance of public roads shall likewise apply to such contracts for the maintenance of such department owned or department leased airports, provided that such a contract when negotiated with a political subdivision shall not be subject to the limitation of subparagraph (d)(1)(A) of Code Section 32-2-61 pertaining to the average bid price for the 60 day period preceding the making of the contract;
   18. 1. Subject to general appropriations and any provisions of Chapter 5 of this title to the contrary notwithstanding, the department is authorized within the limitations provided in subparagraph (B) of this paragraph to provide to municipalities, counties, authorities, and state agencies financial support by contract for clearing, dredging, or maintaining free from obstructions and for the widening, deepening, and improvement of the ports, seaports, or harbors of this state.
       2. 1. Municipalities, counties, authorities, or state agencies may, by formal resolution, apply to the department for financial assistance provided by this paragraph.
          2. The department shall review the proposal and, if satisfied that the proposal is in accordance with the purposes of this paragraph, may enter into a contract for expenditure of funds.
          3. The time of payment and any conditions concerning such funds shall be set forth in the contract.
       3. In addition to subparagraph (A) of this paragraph and subject to general appropriations for such purposes, the department with its own forces or by contract may clear, dredge, or maintain free from obstruction and may widen, deepen, and improve the ports, seaports, or harbors of this state;
   19. Code Sections 32-3-1 and 32-6-115 notwithstanding, the department may by contract grant to any rapid transit authority created by the General Assembly, under such terms and conditions as the department may deem appropriate, the right to occupy or traverse a portion of the right of way of any road on the state highway system by or with its mass transportation facilities. Furthermore, the department may by contract lease to the rapid transit authority, under such terms and conditions as the department may deem appropriate, the right to occupy, operate, maintain, or traverse by or with its mass transportation facilities any parking facility constructed by the department. Notwithstanding Code Section 48-2-17, all net revenue derived from the lease shall be utilized by the department to offset the cost of constructing any parking facility. Regardless of any financial expenditures by the rapid transit authority, no right of use or lease granted under this paragraph shall merge into or become a property interest of the rapid transit authority. Upon the transfer of the title of the mass transportation facilities to private ownership or upon the operation of the rapid transportation facilities for the financial gain of private persons, such rights granted by the department shall automatically terminate and all rapid transportation facilities shall be removed from the rights of way of the state highway system; and
   20. The department, in consultation with the Georgia Technology Authority, shall have the authority to plan for, establish, and implement a long-term policy with regard to the use of the rights of way of the interstate highways and state owned roads for the establishment, development, and maintenance of the deployment of broadband services and other emerging communications technologies throughout the state by public or private providers, or both. The department shall be authorized to promote and encourage the use of such rights of way of the interstate highways and state owned roads for such purposes to the extent feasible and prudent. All net revenues from the use, lease, or other activities in such rights of way in excess of any project costs, that are not subject to the jurisdiction of the Federal Highway Administration or that are not otherwise restricted by any federal laws, rules, or regulations, shall be paid into the general fund of the state treasury subject to any restrictions imposed by the Federal Highway Administration. It is the intention of the General Assembly, subject to the appropriation process, that a portion of the amount so deposited into the general fund of the state treasury be appropriated each year to programs to be administered by the Georgia Technology Authority, the Department of Community Affairs, and other state agencies as provided in Chapter 40 of Title 50 to be used to promote and provide broadband services throughout the state.
2. In addition to the powers specifically delegated to it in this title, the department shall have the authority to perform all acts which are necessary, proper, or incidental to the efficient operation and development of the department and of the state highway system and of other modes and systems of transportation; and this title shall be liberally construed to that end. Any power vested by law in the department but not implemented by specific provisions for the exercise thereof may be executed and carried out by the department in a reasonable manner pursuant to such rules, regulations, and procedures as the department may adopt and subject to such limitations as may be provided by law.

(Ga. L. 1919, p. 242, art. 3, §§ 3, 5; Ga. L. 1919, p. 242, art. 4, §§ 1-3; Ga. L. 1919, p. 242, art. 6, § 3; Ga. L. 1922, p. 176, § 1; Ga. L. 1929, p. 260, § 2; Code 1933, §§ 95-1502, 95-1504, 95-1701, 95-1702, 95-1703, 95-1710, 95-1715, 95-1724; Code 1933, §§ 95A-302, 95A-303, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, §§ 6-9; Ga. L. 1975, p. 98, §§ 1, 2; Ga. L. 1976, p. 416, § 1; Ga. L. 1976, p. 775, § 2; Ga. L. 1979, p. 973, §§ 2, 3; Ga. L. 1980, p. 773, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1983, p. 3, § 56; Ga. L. 1986, p. 10, § 32; Ga. L. 1991, p. 1355, § 1; Ga. L. 1993, p. 1402, § 18; Ga. L. 2000, p. 951, § 2-2; Ga. L. 2001, p. 1251, § 1-1; Ga. L. 2009, p. 848, § 2/SB 85; Ga. L. 2010, p. 863, § 3/SB 296; Ga. L. 2018, p. 629, § 2-1/SB 402.)

The 2018 amendment, effective May 7, 2018, deleted "and" at the end of subparagraph (a)(18)(C), substituted "; and" for the period at the end of paragraph (a)(19), and added paragraph (a)(20).

- Aviation authority, T. 6, C. 5.

Further provisions regarding powers and duties of department as regards aviation, §§ 6-1-1,6-1-2.

Powers and duties of department with regard to construction of bicycle trails and bikeways, § 12-3-115.

Erosion and sediment control plan prepared, § 12-7-7.1.

Motor fuel and road taxes, T. 48, C. 9.

Powers and duties of department regarding welcome centers on federal highways, and installation and operation of vending machines at such centers, § 50-7-12 et seq.

Powers and duties of department with regard to intracoastal waterway, T. 52, C. 3.

- Pursuant to Code Section 28-9-5, in 1985, periods were substituted for semicolons at the end of subparagraphs (a)(12)(A), (a)(17)(A)-(a)(17)(C), (a)(18)(A) and subdivisions (a)(18)(B)(i)-(a)(18)(B)(iii); and "subparagraph (d)(1)(A)" was substituted for "subparagraph (A) of paragraph (1) of subsection (a)" in subparagraphs (a)(17)(B) and (a)(17)(D).

Pursuant to Code Section 28-9-5, in 1987, "property" was substituted for "porperty" in paragraph (a)(9) and, in subparagraph (a)(17)(A), "and aviation" was added following the first "aviation" and "and aviation" was deleted following the second "aviation".

Pursuant to Code Section 28-9-5, in 1994, in subsection (a), "contract lawsuits," was substituted for "contract lawsuits" near the middle of paragraph (a)(4) and "or private," was substituted for "or private" near the end of subparagraph (a)(17)(A).

Pursuant to Code Section 28-9-5, in 2018, "Chapter 40" was substituted for "Chapter 39" near the end of paragraph (a)(20).

- Ga. L. 2018, p. 629, § 1-1/SB 402, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Achieving Connectivity Everywhere (ACE) Act.'"

ANALYSIS

• General Consideration
• Authority of Department
• Bridges
• Ferries

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 672; former Code 1873, § 671; former Code 1882, §§ 684, 690; former Civil Code 1895, §§ 616, 622; former Civil Code 1910, § 748; and former Code 1933, §§ 95-302, 95-1504, 95-1701, 95-1715 and 95-1724, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Georgia DOT is an arm of the state and thus may have immunity under the Eleventh Amendment because any recovery would have been paid out of state funds and the fact that Georgia DOT can allocate the DOT's funds in DOT's own discretion and without intervention by the state legislature does not change the fact that these funds are state funds. Robinson v. Georgia DOT, 966 F.2d 637 (11th Cir.), cert. denied, 506 U.S. 1022, 113 S. Ct. 660, 121 L. Ed. 2d 586 (1992).

Under O.C.G.A. § 32-2-2, the legislature has delegated to DOT the authority to exercise the right and power of eminent domain for public road and transportation purposes. It follows that DOT is an "arm of the State" for eminent domain purposes, and the trial court correctly held that an action brought against DOT under 42 U.S.C. § 1983 could not be maintained for losses occasioned by pre-condemnation publicity. Thompson v. DOT, 209 Ga. App. 353, 433 S.E.2d 623 (1993).

- Georgia DOT, which may receive immunity under the eleventh amendment, did not waive the DOT's immunity when plaintiffs sought relief for inverse condemnation of property that was an ancestral cemetery because DOT had consented to suit in state court; the Georgia Constitution expressly reserves the state's immunity in federal court and a waiver in state court does not constitute a waiver in federal court. Robinson v. Georgia DOT, 966 F.2d 637 (11th Cir.), cert. denied, 506 U.S. 1022, 113 S. Ct. 660, 121 L. Ed. 2d 586 (1992).

- Contractors were not liable for the negligent design of a ramp as the Georgia Department of Transportation (DOT) had responsibility for the design of the ramp, notwithstanding the fact that DOT gave the contractors no drawings, that the contractors made suggestions for changes to the ramp, and that the contractors implemented the DOT's design; there was no evidence that the DOT relinquished control of the design to the contractors or that the contract specified that the design of the ramp was the contractors' responsibility. Fraker v. C.W. Matthews Contr. Co., 272 Ga. App. 807, 614 S.E.2d 94 (2005), aff'd, No. 06-11805, 2007 U.S. App. LEXIS 28793 (11th Cir. 2007).

- Trial court erred by granting a paving company summary judgment in a negligence suit based on the affidavit of the company's president because the business records referred to and relied upon by the paving company's president were not attached to the president's affidavit; thus, the affidavit could not be used to support the company's motion for summary judgment. Brown v. Seaboard Constr. Co., 317 Ga. App. 667, 732 S.E.2d 325 (2012).

- In a case involving a white supremacist organization being denied a permit for the Adopt-A-Highway program administered by the Georgia Department of Transportation (Department), the court dismissed the Department's appeal for lack of jurisdiction because the Department sought review of a decision of a state administrative agency and was required under O.C.G.A. § 5-6-35(a)(1) to bring the Department's appeal by way of an application for discretionary review, but failed to do so. State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016).

Cited in Hall County Historical Soc'y, Inc. v. Georgia DOT, 447 F. Supp. 741 (N.D. Ga. 1978); Hendrix v. Department of Transp., 188 Ga. App. 429, 373 S.E.2d 264 (1988); DOT v. Carr, 254 Ga. App. 781, 564 S.E.2d 14 (2002); Hubbard v. DOT, 256 Ga. App. 342, 568 S.E.2d 559 (2002); Campbell v. State Rd. & Tollway Auth., 276 Ga. 714, 583 S.E.2d 32 (2003).

Enforcement authority granted by O.C.G.A. § 32-2-2 is neither overbroad nor an illegal delegation of legislative functions. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).

- Nothing in O.C.G.A. § 32-1-3(24)(J) or O.C.G.A. § 32-2-2(a)(3) prevents the Georgia Department of Transportation from delegating the responsibility for designing and implementing a traffic control plan to a private contractor. Comanche Constr., Inc. v. DOT, 272 Ga. App. 766, 613 S.E.2d 158 (2005).

- When the charge in question does in fact state that the Department of Transportation has "general responsibility to design, manage and improve the state highway system," it seems to capture the essence of the sections the defendant relies upon, which are in fact very broad, general descriptions of the duties of the DOT. The additional material used by the court is drawn from the more specific statutory description of the respective duties of the DOT and municipalities. Thus, O.C.G.A. § 32-2-2 does indeed mention the general duty of the DOT to "designate, improve, manage, control, construct, and maintain." Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).

- Court of equity will not interfere with the discretionary action of the State Highway Department (now Department of Transportation) in locating, grading, or improving a state-aid highway, within the area of their legally designated powers, unless such action is arbitrary and amounts to an abuse of the court's discretion. State Hwy. Dep't v. Strickland, 213 Ga. 785, 102 S.E.2d 3 (1958).

There is no general duty imposed on the counties to maintain state highways. Christian v. Monroe County, 203 Ga. App. 342, 417 S.E.2d 37 (1992); Hardy v. Candler County, 214 Ga. App. 627, 448 S.E.2d 487 (1994).

- State Highway Department (now Department of Transportation) was authorized to take property for the relocation of the gas company's interstate gas line since it was in the interest of safety and prevented inconvenience to the public using the gas line and since the acquisition was in furtherance of and reasonably for a public state highway use. Benton v. State Hwy. Dep't, 111 Ga. App. 861, 143 S.E.2d 396 (1965) (decided under former Code 1933, §§ 95-1701, 95-1715, and 95-1724).

- State Highway Department (now Department of Transportation) may construct public highways through municipalities or cities of this state without their consent. City of Carrollton v. Walker, 215 Ga. 505, 111 S.E.2d 79 (1959) (decided under former Code 1933, § 95-1504).

- State Highway Board (now State Transportation Board), on the board's own initiative or acting through a county, has the legal right to extend and improve a state-aid road through the streets of a municipality without the consent of the municipality and even against the municipality's will. Perkerson v. Mayor of Greenville, 51 Ga. App. 240, 180 S.E. 22 (1935) (decided under former Code 1933, § 95-1504).

- When the additional portion of the charge objected to here similarly drew from specific applicable statutory language, the court properly noted the general regulatory power of the Department of Transportation to approve the erection of traffic signals. Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).

- O.C.G.A. § 32-2-2(a)(1) does not place exclusive responsibility for all aspects of the state highway system in the Department of Transportation. City of Fairburn v. Cook, 188 Ga. App. 58, 372 S.E.2d 245, cert. denied, 188 Ga. App. 911, 372 S.E.2d 245 (1988).

- When the Department of Transportation fails to maintain those portions of the state highway system lying within a municipality's corporate limits as required by law and when the municipality agreed to perform the necessary maintenance, a municipality can be held liable for such failure under O.C.G.A. § 32-4-93(b). City of Fairburn v. Cook, 188 Ga. App. 58, 372 S.E.2d 245, cert. denied, 188 Ga. App. 911, 372 S.E.2d 245 (1988).

- Management and control of the right of way of the state's system of roads is vested in the Department of Transportation and the department can require the removal of any obstruction placed thereon without express permission. Crider v. Kelley, 232 Ga. 616, 208 S.E.2d 444 (1974).

- In a wrongful death action, the trial court did not err in finding the Georgia Department of Transportation immune from suit from liability to the decedent's estate and survivors for failing to maintain an overgrown area of shrubbery that bordered an intersection, as neither O.C.G.A. § 32-2-2, when read in concert with O.C.G.A. § 32-4-93, nor O.C.G.A. § 50-21-24(8) imposed liability on the Department; hence, maintenance of the area did not constitute a "substantial" or "other major" maintenance activity. Welch v. Ga. DOT, 283 Ga. App. 903, 642 S.E.2d 913 (2007).

- O.C.G.A. § 32-2-2(b) does not constitute specific authority to Department of Transportation to condemn public property. DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).

Bridges

1. Liability of County

- County authorities are not insurers of the safety of county bridges, but must only exercise ordinary care in maintaining and repairing the bridges. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934) (decided under former Civil Code 1910, § 748).

- While the word "bridge," as used in former Civil Code 1910, § 748 did not include the public road leading thereto, or a drain or opening thereunder, the statute did include "all the appurtenances necessary to its proper use, and embraces its abutments and approaches and that which is necessary as an approach, to connect the bridge with the highway, is an essential part of the bridge itself." Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934) (decided under former Civil Code 1910, § 748).

In an action against a county for damages from the falling of truck through an opening where a public bridge had been into a ravine below, the petition was not subject to demurrer (now motion to dismiss), and the verdict for the plaintiff was not contrary to law or without evidence to support the verdict, under the defendant's contention that the injury was not caused by reason of a "defective bridge" within the meaning of the statute, but from the entire removal of the bridge, for which the county was not liable, since the petition and the evidence showed that at the time of the injury at least a part of the bridge, i.e., the sills constituting a portion of its "approaches," still remained, and the rest of the bridge was then being repaired. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934) (decided under former Civil Code 1910, § 748).

2. Liability of Individual Owners

Standard of care required for private toll bridges.

- Owner of a bridge franchise is bound to exercise only such care and diligence in the construction of a bridge and keeping the bridge in proper order which every prudent man would exert in relation to the same property in view of the object and purpose for which the bridge was erected and used by the prudent man. Tift v. Towns, 53 Ga. 47 (1874) (decided under former Code 1873, § 671).

- While the proprietor of a toll bridge is having the bridge repaired, in accordance with the proprietor's duty, the floor being taken up and no toll charged, the proprietor's role as a proprietor of a toll bridge is discontinued; and the proprietor is not liable under this section to one injured by reason of the condition of the bridge. Tift v. Jones, 52 Ga. 538 (1874) (decided under former Code 1873, § 671).

- This section did not contemplate a case where a public road crossed a bridge, and where a few people obtained possession by a transfer of a mechanic's lien and proceeded to charge a toll without authority granted to the people from some proper source. Whelchel v. State ex rel. Wiley, 76 Ga. 644 (1886) (decided under former Code 1882, § 684).

Ferries

Liability for ferry kept for own use.

- One who keeps a ferry for one's own use is not liable except for gross neglect unless one is in the habit of charging a toll. Self v. Dunn & Brown, 42 Ga. 528, 5 Am. R. 544 (1871) (decided under former Code 1863, § 672).

- While the owner of a private ferry may lawfully charge and collect a toll from persons incidentally crossing thereat, should the owner maintain the ferry for use by the public at large or seek public patronage, or pursue the business of keeping up the ferry for the public, the ferry loses the ferry's character as a private ferry. Hudspeth v. Hall, 111 Ga. 510, 36 S.E. 770 (1900) (decided under former Code 1895, § 616).

- Since public ferry operators are common carriers, no allegation of negligence was necessary in suits brought to recover damages for loss of property accepted for shipment. Deen v. Wheeler, 7 Ga. App. 507, 67 S.E. 212 (1910) (decided under former Code 1895, § 622).

- Under this section, the owner of the land on which a public ferry is situated, unless the ownership of the ferry be separated from that of the land, is liable for negligent torts committed by the ferry operator in the performance of the operator's duties as such, whether the owner objects to the use of the ferry or not. Printup v. Patton & Jackson, 91 Ga. 422, 18 S.E. 311 (1893) (decided under former Code 1882, § 690).

- Petition originally basing liability on ownership of the ferry may be amended to include liability as owner of the land and proof of either will sustain the action. Deen v. Wheeler, 7 Ga. App. 507, 67 S.E. 212 (1910) (decided under former Code 1895, § 622).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 95-1715 and 95-1724, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

- Given the Department of Transportation's authority and obligation to control the state highway system, it seems imperative that the department maintain rigid and absolute control over any contemplated tree cutting operations, particularly if those operations are undertaken by private individuals on rights-of-way. 1981 Op. Att'y Gen. No. 81-75.

Authorization to formulate rules related to, and issuance of permits for, cutting of trees and vegetation on rights-of-way does not impinge upon the Department of Transportation's authority and legal obligation to control the state highway system. 1981 Op. Att'y Gen. No. 81-75.

- Department of Transportation may not help fund completion of airport master planning project for county airport because it would constitute a forbidden assumption of county debt. 1973 Op. Att'y Gen. No. 73-126.

- Department of Transportation may enter into transportation construction contracts with all or a portion of the financial backing for the contracts coming from a contractual promise from the State Road and Tollway Authority to borrow and provide money to DOT as and when needed to expend on projects that are the subjects of the construction contracts. 2001 Op. Att'y Gen. No. 2001-10.

- Since the state is obligated to follow federal law with reference to interstate highways, the state's making a contract for supplying to an individual the hay cut from rights of way of interstate highways in return for the individual's cutting it would not be acceptable since the federal government requires maintenance contracts to be made with governmental instrumentalities only. 1973 Op. Att'y Gen. No. U73-71.

- Department of Transportation has authority to issue a revocable license to a company constructing and operating a rapid rail passenger service line to cross the rights-of-way of several state routes so long as consideration is received which represents a substantial benefit to the public. 1995 Op. Att'y Gen. No. 95-45.

- Department of Transportation may lawfully spend motor fuel tax funds for the purchase of litter bags to be distributed free of charge to motorists at Georgia's welcome stations. 1973 Op. Att'y Gen. No. 73-145.

Carriage upon state aircraft must be limited to state officials and employees on official business of the state and those non-employees from whose carriage the state derives some benefit. The only exceptions may be in those areas exempted from Ga. Const. 1983, Art. III, Sec. VI, Para. VI(a), the gratuities provision of the Constitution, by Ga. Const. 1983, Art. III, Sec. VI, Para. VI(b). 1989 Op. Att'y Gen. No. 89-19.

- If the Governor, Lieutenant Governor, or Speaker of the House must travel on personal or political business, such travel must be accomplished by private means unless the Commissioner of Public Safety has determined that travel on state aircraft is necessary for personal security; otherwise, when any public officer uses a state aircraft for a personal or political reason, the use of the aircraft is contrary to the prohibitions of the gratuities clause and state statutes authorizing the use of state aircraft, even were the official to reimburse the state for the direct costs associated with the trip. 2004 Op. Att'y Gen. No. 04-3.

- Powers and duties delegated to the State Highway Department (now Department of Transportation), especially those concerning appropriations and expenditures of state funds, must be strictly construed. 1971 Op. Att'y Gen. No. 71-85 (decided under former Code 1933, §§ 95-1715 and 95-1724).

- Specific powers mentioned in this section do not authorize the State Highway Department (now Department of Transportation) to match federal funds or to purchase rights of way on roads which are not on the official state highway system. 1971 Op. Att'y Gen. No. 71-85 (decided under former Code 1933, §§ 95-1715 and 95-1724).

- State Highway Department (now Department of Transportation) has no legal authority to reimburse a political subdivision for the cost of any rights of way they may buy for a federal-aid highway improvement project on a road not on the official state highway system. 1971 Op. Att'y Gen. No. 71-85 (decided under former Code 1933, §§ 95-1715 and 95-1724).

- Appropriated state funds which become deobligated during a subsequent fiscal year are subject to lapse, and may not be applied to contracts for which motor fuel tax appropriations were previously committed. 1993 Op. Att'y Gen. No. 93-9.

- Department of Transportation may expend federal and state funds on transportation enhancement activities as defined in 23 U.S.C. § 101(a) in those instances where the Code of Public Transportation gives the department the authority to expend such funds, but the Department of Transportation has no authority to expend federal or state money on historic preservation, rehabilitation, and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals) where such buildings, structures, or facilities are not being acquired for transportation purposes. 1993 Op. Att'y Gen. No. 93-3 (decided prior to 1993 amendment of O.C.G.A. § 32-1-3).

- Fair and Open Grants Act of 1993, O.C.G.A. § 28-5-120 et seq., does not apply to disbursements made by the Department of Transportation pursuant to contracts entered into with private entities, nor to intergovernmental contracts with counties for harbor maintenance; but the Act does apply when funds are disbursed by the department on an unrestricted basis to, or for the benefit of, local governments for public road and other transportation purposes. 1994 Op. Att'y Gen. No. 94-1.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 12 et seq.

- 39A C.J.S., Highways, § 73 et seq.

- Duty and liability as to lighting bridge, 47 A.L.R. 355.

Constitutionality and construction of statute relating to location or relocation of highways, 63 A.L.R. 516.

Duty as regards barriers for protection of automobile travel, 86 A.L.R. 1389; 173 A.L.R. 626.

Personal liability of highway officers for damage to or trespass upon land in connection with construction or maintenance of highway, 90 A.L.R. 1481.

Power and duty of highway officers as regards location or routes of roads to be constructed or improved, 91 A.L.R. 242.

Validity and applicability of statutes relating to use of highway by private motor carriers and contract motor carriers for hire, 175 A.L.R. 1333.

Construction of highway through park as violation of use to which park property may be devoted, 60 A.L.R.3d 581.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from ice or snow on surface of highway or street, 97 A.L.R.3d 11.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from failure to repair pothole in surface of highway or street, 98 A.L.R.3d 101.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from defect or obstruction on roadside parkway or parking strip, 98 A.L.R.3d 439.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from design, construction, or failure to warn of narrow bridge, 2 A.L.R.4th 635.

Highways: Governmental duty to provide curve warnings or markings, 57 A.L.R.4th 342.

Governmental tort liability as to highway median barriers, 58 A.L.R.4th 559.