Bowen v. Little

• Decision Date: 15 June 1976
• Docket Number: No. 52194,No. 3,52194,3
• Citation: 139 Ga.App. 176,228 S.E.2d 159
• Parties: D. L. BOWEN v. Jean M. LITTLE et al
• Court: Georgia Court of Appeals

Page 159

228 S.E.2d 159

139 Ga.App. 176

D. L. BOWEN v. Jean M. LITTLE et al.

No. 52194.

Court of Appeals of Georgia, Division No. 3.

June 15, 1976.

Rehearing Denied June 29, 1976.

Jack J. Helms, Homerville, Walters & Davis, J. Harvey Davis, Ocilla, for appellant.

Mixon & Mixon, Harry Mixon, Ocilla, Reinhardt, Whitley & Sims, Glenn Whitley, Tifton, for appellees.

DEEN, Presiding Judge.

The installation and maintenance of traffic lights is a governmental function. City of Rome v. Potts, 45 Ga.App. 406, 410, 165 S.E. 131; Stanley v. City of Macon, 95 Ga.App. 108(1), 97 S.E.2d 330; Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 836, 165 S.E.2d 141. In the same way, failure to maintain a stop sign (Arthur v. City of Albany, 98 Ga.App. 746, 106 S.E.2d 347) or to put lights adjacent to an underpass (Burd v. City of Atlanta, 52 Ga.App. 681, 184 S.E. 412) or maintain street lights (Williams v. Mayor & Council of Washington, 142 Ga. 281(1), 82 S.E. 656) has been held not actionable. '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.' Code § 69-302.

In the absence of a law or ordinance requiring the defendant City of Ocilla to erect a traffic light at an intersection named in this complaint, as a result of which the plaintiff was allegedly injured, the erection and maintenance of such a signal is discretionary, and it cannot be held liable for mere failure to perform such act. This result has been reached generally when raised in other jurisdictions. Resnik v. Michaels, 52 Ill.App.2d 107, 201 N.E.2d 769(3) held: 'The Village of Park Forest certainly would not be liable for not passing an ordinance providing for traffic signs on Tampa Street at the intersection with Talala, on the ground that it thereby failed to regulate the flow of traffic and failed to protect motorists from the dangers inherent in driving an automobile at that corner.' To the same effect see Slavin v. City of Tucson, 17 Ariz.App. 16, 495 P.2d 141(3): '(T)here is no duty (on the city) to regulate traffic by posting signs or otherwise . . . (however) once the city undertakes to control traffic with signs or warning devices, it cannot create a dangerous condition in doing so . . . and must properly maintain the signs.' It was on this premise that liability was grounded in Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 838, 165 S.E.2d 141, supra, where the city maintained a defective traffic light showing green in all four directions. The court held that while negligence in discharging a governmental function is not actionable, the city may not create a situation dangerous to life and, while so maintaining it, escape liability for resulting damage. The maintenance under such circumstances becomes a nuisance.

This is substantially the holding in Hancock v. City of Dalton, 131 Ga.App. 178, 181, 205 S.E.2d 470 where it was contended that failure of the city to maintain traffic signals at a railroad crossing constituted a nuisance, and the court held that, in the absence of a provision to that effect in the contract between the municipality and...