In a prior post, I discussed the case of City of Milton v. Chang, an opinion issued by the Georgia Court of Appeals. On March 12, 2026, the Georgia Supreme Court vacated and remanded the case because the City’s immunity extended to the road-defect negligence asserted by the plaintiff. Though the Court left open other avenues for recovery, its ruling on the scope of immunity for road defects is a major development in municipal immunity.
City of Milton v. Chang, — Ga. –, 2026 WL 695364 (Mar. 12, 2026).
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.
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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 municipality’s ministerial duties.
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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. . . . If the plaintiff asserts that OCGA § 36-33-1(b) waives municipal immunity for that claim, the proper inquiry asks whether the negligent conduct for which the plaintiff seeks to hold 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.
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In short, the only rule we can reasonably 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.
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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. . . . 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 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. . . . 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.
