McKinley v. City of Cartersville

• Decision Date: 26 May 1998
• Docket Number: No. A98A0426.,A98A0426.
• Citation: McKinley v. City of Cartersville, 503 S.E.2d 559, 232 Ga.App. 659 (Ga. App. 1998)
• Parties: McKINLEY v. CITY OF CARTERSVILLE.
• Court: Georgia Court of Appeals

503 S.E.2d 559

232 Ga. App. 659

McKINLEY v. CITY OF CARTERSVILLE.

No. A98A0426.

Court of Appeals of Georgia.

May 26, 1998.

Henderson & Associates, Daniel L. Henderson, Marietta, Chad A. McGowan, Atlanta, for appellant.

Jenkins & Nelson, G. Carey Nelson III, Peter R. Olson, Cartersville, for appellee.

BIRDSONG, Presiding Judge.

Annie McKinley sued the City of Cartersville for disabling injuries she received in a car accident which she contends occurred because unknown persons had turned the stop sign on Carter Street, on which she was driving westbound, at the intersection of Carter and Gilmer Streets, so that she could not see that stop sign, and her vehicle was hit by a car which was traveling southbound on the intersecting street, Gilmer Street, on which no stop sign had ever been erected.

McKinley shows that in October 1992, twenty-one months before her accident, the city commissioned a traffic accident study of this intersection, which gave it actual knowledge that a stop sign on Gilmer street was the cause of nine "right-angle" accidents in two years. The city's report concluded and recommended: "This intersection ranks ... # 1 for accidents on City streets, which are not State routes.... It is recommended that a 4-way stop be established at this intersection [and that] stop lines be placed on all 4 approaches." Notwithstanding this specially commissioned report and its conclusions and recommendations, the city did not erect four-way stop signs at the intersections for more than two years later—after appellant McKinley's accident occurred.

McKinley filed claims for both negligence and maintenance of a nuisance. The trial court granted summary judgment to the City on the negligence claims (impliedly as to both the turned sign on Carter Street and the absence of a stop sign on Gilmer Street); the maintenance (erection) of a traffic device is a governmental rather than a ministerial function and the City had no knowledge that the stop sign on the street on which appellant was traveling (Carter Street) had been turned by unknown persons. The trial court further granted summary judgment to the City on appellant's nuisance claim as to the City's failure to erect a stop sign on Gilmer street so as to make the intersection a four-way stop; the court reasoned that while normally the appellant's evidence would be sufficient to create an issue of fact as to the extremely dangerous condition of the intersection which was known to the City, nevertheless "common sense dictates that this Court examine the [evidence] in light of all the evidence. It is readily apparent from... the record that this particular collision did not occur as a result of the absence of four-way stop signs. Had the turned stop sign been in its correct position, and had the plaintiff obeyed said stop sign, this accident would have never happened." Appellant appeals. Held: 1. Appellant concedes the City had no notice of the turned stop sign on Carter Street; she thus expressly declines to appeal the portion of the trial court's order dealing with the turned stop sign on Carter Street. However, despite the trial court's finding that this accident would never have occurred if unknown persons had not turned the stop sign on that street, she contends that issues of fact remain.

However, appellant cannot maintain a cause of action for negligence against the City for failure to erect a stop sign on Gilmer Street. OCGA § 32-4-93(a) provides: "A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has...