2020 Georgia Code
Title 36 - Local Government
Chapter 33 - Liability of Municipal Corporations for Acts or Omissions
§ 36-33-2. Liability for Failure to Perform Discretionary Act

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 act.

(Civil Code 1895, § 747; Civil Code 1910, § 896; Code 1933, § 69-302.)

- Immunity of municipalities and officers or employees thereof for damages resulting from inspections or other actions taken or not taken pursuant to fire protection laws, § 25-2-38.1.

Liability of municipalities for defects in public roads, § 32-4-93.

- For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For note, "Adverse Possession of Municipal and County Property Held for Proprietary Purposes: The Unique Georgia Development," see 7 Ga. St. B. J. 482 (1971).

Municipal corporation cannot be held liable for failure to perform duty when duty of performance has not been imposed upon the corporation by law, and which the corporation has no power to perform, for lack of authority to raise revenue for that purpose. Mayor of Montezuma v. Law, 1 Ga. App. 579, 57 S.E. 1025 (1907).

Clear line is drawn between a discretionary nonfeasance and the negligent maintenance of something erected by the city in the city's discretion in such manner as to create a dangerous nuisance, and which amounts to misfeasance. In a case of discretionary nonfeasance on the part of the defendant city, the defendant city is not liable. Tamas v. City of Columbus, 244 Ga. 200, 259 S.E.2d 457 (1979).

- O.C.G.A. § 36-33-2 may not be applicable when a city fails to provide a substitute school crossing guard at an intersection which was normally attended by a crossing guard, even though the city was not required by statute to provide a crossing guard. Whiddon v. O'Neal, 171 Ga. App. 636, 320 S.E.2d 601 (1984).

Whether a city will open a street is discretionary with the city, and the exercise of the city's discretion, one way or the other, gives no right of action to anyone who may have miscalculated the final action of the city. Pittman v. City of Jesup, 232 Ga. 635, 208 S.E.2d 456 (1974).

- City did not create a nuisance by failing to identify school safety crossings across a public roadway in front of a school. McLaughlin v. City of Roswell, 161 Ga. App. 759, 289 S.E.2d 18 (1982).

- In the absence of a law or ordinance requiring the defendant to erect a traffic light at an intersection as a result of which the plaintiff was allegedly injured, the erection and maintenance of such a signal is discretionary, and a city or county cannot be held liable for mere failure to perform such an act. McLaughlin v. City of Roswell, 161 Ga. App. 759, 289 S.E.2d 18 (1982).

Trial court properly granted summary judgment to a city on a parent's negligence claim against the city stemming from a child's serious automobile accident at a known dangerous intersection that was inappropriately signaled because the city was immune from suit as the issue of whether to install a traffic signal at the intersection was a discretionary act, entitling the city to sovereign immunity; further, a successful tax referendum to fund a new traffic light did not create a duty to install a traffic light at the intersection before completing other projects. Riggins v. City of St. Marys, 264 Ga. App. 95, 589 S.E.2d 691 (2003).

- Driver's allegations of negligence against a city for negligent maintenance of a stop sign, which was allegedly obscured by foliage, were subject to summary judgment based on the city's sovereign immunity pursuant to O.C.G.A. § 36-33-1(b). The driver's nuisance claim was barred because the driver failed to show the city's awareness of a problem with the stop sign. Albertson v. City of Jesup, 312 Ga. App. 246, 718 S.E.2d 4 (2011), cert. denied, No. S12C0398, 2012 Ga. LEXIS 245 (Ga. 2012).

- Summary judgment was granted in favor of a city upon a father's claim of negligence under O.C.G.A. § 32-4-93(a) because: (1) there was no showing that the city had a legal duty to expand the culvert pipe in which the father's son drowned, to widen the shoulder of the street, or to erect a guardrail as no statute required the city to take these actions, and the city's construction code did not impose a duty with regard to the culvert; (2) there was no evidence that the city negligently maintained the culvert; and (3) the city had no actual or constructive notice of flooding problems near the culvert or of defects in the culvert. Walden v. City of Hawkinsville, F.3d (M.D. Ga. Sept. 21, 2005).

- Grant of summary judgment in favor of the city in a wrongful-death action was improper because there was evidence that the decedent had to walk in the same direction as the truck that struck the decedent was traveling; thus, there was an inference of causation. That specification of negligence was an act of misfeasance, for which the city might have been held liable, rather than discretionary nonfeasance, for which the city could not have been held liable pursuant to O.C.G.A. § 36-33-2. Butler v. Carlisle, 299 Ga. App. 815, 683 S.E.2d 882 (2009), cert. denied, No. S10C0052, 2010 Ga. LEXIS 155 (Ga. 2010), overruled on other grounds by Mercer Univ. v. Stofer, 830 S.E.2d 169, 2019 Ga. LEXIS 436 (Ga. 2019).

County was under no duty to build bridge across creek which under normal circumstances was safe to ford and therefore not liable for death of car occupants who drowned when creek flooded over ford as car was passing over the ford. Dollar v. Haralson County, 704 F.2d 1540 (11th Cir.), cert. denied, 464 U.S. 963, 104 S. Ct. 399, 78 L. Ed. 2d 341 (1983).

- Trial court erred by granting summary judgment to a city on a property owner's nuisance claim because evidence existed that the property had been subjected to repeated flooding and that the city had notice of the problem, creating a jury issue as to whether the city had created a nuisance by failing to install a back flow preventer as the city had done for other properties. J. N. Legacy Group v. City of Dallas, 322 Ga. App. 475, 745 S.E.2d 721 (2013).

- In a case in which the plaintiff fell over an 18-foot retaining wall, which had no barrier on top, the trial court erred in denying the city's motion for a directed verdict because no statute or ordinance required the city to construct such a barrier. City of Alpharetta v. Hamby, 352 Ga. App. 511, 835 S.E.2d 366 (2019), cert. denied, No. S20C0480, 2020 Ga. LEXIS 371 (Ga. 2020).

- Trial court erred in not granting a city's motion to dismiss the negligence claims against the city because the city was exercising a governmental function when the city demolished an abandoned house which was claimed to be a nuisance; therefore, the city was entitled to sovereign immunity on those claims. City of Atlanta v. Durham, 324 Ga. App. 563, 751 S.E.2d 172 (2013).

Cited in City of Dublin v. Hobbs, 218 Ga. 108, 126 S.E.2d 655 (1962); Phillips v. Town of Fort Oglethorpe, 118 Ga. App. 62, 162 S.E.2d 771 (1968); Hancock v. City of Dalton, 131 Ga. App. 178, 205 S.E.2d 470 (1974); Bowen v. Little, 139 Ga. App. 176, 228 S.E.2d 159 (1976); Mayor of Savannah v. Palmerio, 242 Ga. 419, 249 S.E.2d 224 (1978); Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981); City of Atlanta v. Chambers, 205 Ga. App. 834, 424 S.E.2d 19 (1992).

RESEARCH REFERENCES

Am. Jur. 2d.

- 57 Am. Jur. 2d, Municipal, County, School, and State Tort Liability, § 56 et seq.

- 62 C.J.S., Municipal Corporations, § 28. 63 C.J.S., Municipal Corporations, §§ 882, 887.

- Liability of municipal corporation for tort of officer or employee of water department, 28 A.L.R. 822; 54 A.L.R. 1497.

Commission and other modern forms of municipal government as affecting liability of municipality for torts, 30 A.L.R. 473.

Liability of municipality as affected by license issued by municipal officer, 42 A.L.R. 1208.

Rule of municipal immunity from liability for torts pertaining to exercise of governmental functions as available to municipal lessee or concessioner, 57 A.L.R. 560.

Liability of municipality where sewer originally of ample size has become inadequate by growth or development of territory, 70 A.L.R. 1347.

Liability of municipality for injury due to defective catch-basin covers, and the like, maintained in street in connection with drainage or sewer system, 71 A.L.R. 753.

Applicability to federal courts of state constitutional or statutory provisions regarding liability of county or other political subdivision to suit, 86 A.L.R. 1019.

Power of legislature to impose, or municipality to assume, liability for acts of officials or employees pertaining to governmental functions, 89 A.L.R. 394.

Liability of municipal corporation for its own misfeasance or nonfeasance, as distinguished from misfeasance or nonfeasance of officer or employee, 102 A.L.R. 656.

Liability of municipality because of misappropriation, diversion, or withholding of funds collected by or paid to it on account of special assessment against property for improvements, 107 A.L.R. 1354.

Liability of municipality for damage to person or property due to hydrant, 113 A.L.R. 661.

Responsibility for injury or damage by or to W.P.A. worker or other workman employed as a means of reducing unemployment, 120 A.L.R. 1148.

Municipal immunity from liability for torts, 120 A.L.R. 1376; 60 A.L.R.2d 1198.

Constitutionality of statute which relieves municipality from liability for torts, 124 A.L.R. 350.

Lease by municipality of property intended for use and benefit of public as affecting its duty and responsibility in respect of the manner and conditions of operation and maintenance of the property by the lessee, 129 A.L.R. 1163.

Liability of municipal corporations for injuries due to conditions in parks, 142 A.L.R. 1340.

Remedy available against invalid judgment in favor of United States, state, or other governmental unit immune to suit, 163 A.L.R. 244.

Liability of municipality for fire loss due to its failure to provide or maintain adequate water supply or pressure, 163 A.L.R. 348.

Civil rights and liabilities as affected by failure to comply with regulations as to registration of automobile or motorcycle or licensing of operation, 163 A.L.R. 1375.

Liability of municipality or other governmental subdivision in connection with flood-protection measures, 5 A.L.R.2d 57.

Liability of municipality for damage caused by fall of tree or limb, 14 A.L.R.2d 186.

Tort liability of municipality or other governmental unit in connection with destruction of weeds and the like, 34 A.L.R.2d 1210.

Liability of municipality for injuries resulting from fall or slipping on debris or litter on outdoor stairway, 47 A.L.R.2d 1086.

Municipal immunity from liability for torts, 60 A.L.R.2d 1198.

Municipality's liability arising from negligence or other wrongful act in carrying out construction or repair of sewers and drains, 61 A.L.R.2d 874.

Suability, and liability, for torts, of public housing authority, 61 A.L.R.2d 1246.

Liability of municipality for injuries resulting from falling or slipping on defective outdoor stairway or steps, 92 A.L.R.2d 469.

Municipal liability for personal injury or death under mob violence or antilynching statutes, 26 A.L.R.3d 1142.

Municipal liability for property damage under mob violence statutes, 26 A.L.R.3d 1198.

Liability of municipality or other governmental body on implied or quasi contract for value of property or work, 33 A.L.R.3d 1164.

Liability of public officer or body for harm done by prisoner permitted to escape, 44 A.L.R.3d 899.

Liability of municipality or other governmental unit for failure to provide police protection, 46 A.L.R.3d 1084.

Liability of governmental entity for issuance of permit for construction which caused or accelerated flooding, 62 A.L.R.3d 514.

Governmental liability from operation of zoo, 92 A.L.R.3d 832.