McPherson v. City of Fort Oglethorpe

• Decision Date: 24 June 1991
• Docket Number: No. A91A0388,A91A0388
• Parties: McPHERSON et al. v. CITY OF FORT OGLETHORPE.
• Court: Georgia Court of Appeals

Page 99

407 S.E.2d 99

200 Ga.App. 129

McPHERSON et al. v. CITY OF FORT OGLETHORPE.

No. A91A0388.

Court of Appeals of Georgia.

June 24, 1991.

Mitchell, Coppedge, Wester, Bisson & Miller, Warren N. Coppedge, Jr., Dalton, for appellants.

Gleason & Davis, John W. Davis, Jr., Rossville, Drew, Eckl & Farnham, Theodore Freeman, Nena K. Puckett, Atlanta, for appellee.

COOPER, Judge.

Plaintiffs appeal from the grant of summary judgment to one of several co-defendants in a negligence and nuisance action.

In 1979, the City of Fort Oglethorpe (the "City") applied for a permit to erect a traffic signal device at the intersection of Van Cleve Street and State Route 2, a seven-lane undivided highway which is a part of the State highway system. The application contained the following language: "In the event that the State Department of Transportation issues a permit for the erection of a traffic signal ... the [City] agrees to install and operate traffic signal equipment which conforms with equipment, installation and operating standards approved by the State Department of Transportation and further agrees to install and operate said signal equipment as specified in the permit and in conformance with standard and subject to provisions set forth herein." The application also contained an indemnification clause which stated: "The [City] agrees to place necessary barricades, warning signs, signals, lights, and if necessary, watchmen, for the protection of the traveling public, and agrees by the issuance of a permit based on this application to keep and hold [DOT] harmless from any and all damages caused by the erection, operation, maintenance, use, failure or removal of said signal." The permit was issued by the State Department of Transportation and the traffic signal was installed. The accident which is the subject matter of the lawsuit occurred when two pedestrians were struck by a car as they attempted to cross State Route 2. Both pedestrians were injured, and one of them subsequently died as a result of her injuries. The decedent's administratrix brought an action, individually and on behalf of the decedent's estate, against the driver, the City, the State Department of Transportation and several agents of the Department of Transportation, alleging that the traffic signal at the intersection where the accident occurred was negligently operated and maintained by the City, and that the operation and maintenance of the traffic signal constituted a nuisance. Specifically, plaintiffs argue that the timing sequence on the traffic signal did not give sufficient time for pedestrians to cross State Route 2. The trial court granted summary judgment to the City. The action is still pending against the remaining co-defendants.

1. Plaintiffs contend that the trial court erred in granting summary judgment to the City on plaintiff's claim of negligence. OCGA § 32-4-93(b) provides: "A municipality is relieved of any and all liability resulting from or occasioned by defective construction of those portions of the state highway system ... lying within its corporate limits or resulting from the failure of the department or the county to maintain such roads as required by law unless the municipality constructed or agreed to perform the necessary maintenance of such road." It is undisputed that State Route 2 at its intersection with Van Cleve Street is part of the State highway system. It is also undisputed that DOT engineered,...