Tamas v. Columbus

• Decision Date: 10 September 1979
• Docket Number: No. 35047,35047
• Citation: 244 Ga. 200,259 S.E.2d 457
• Parties: TAMAS v. COLUMBUS, Georgia.
• Court: Georgia Supreme Court

Page 457

259 S.E.2d 457

244 Ga. 200

TAMAS v. COLUMBUS, Georgia.

No. 35047.

Supreme Court of Georgia.

Argued July 9, 1979.

Decided Sept. 10, 1979.

Garcia & Hirsch, David L. Hirsch, Joey M. Loudermilk, Columbus, for appellant.

E. Hardwick Polleys, Jr., Columbus, for appellee.

MARSHALL, Justice.

This is a wrongful-death action being prosecuted by the mother of a child who drowned in a creek in Columbus, Georgia. The City of Columbus is named as defendant. In the complaint, there are requests for injunctive relief. The allegations of the complaint are essentially as follows:

On June 6, 1978, Natasha T. Tamas, the seven-year-old daughter of the plaintiff, was traveling across a bridge, which runs over the creek on Amber Drive in Columbus. Amber Drive extends beyond the edges of the bridge in a downward sloping fashion so that the asphalt from the road forms a slanting path for drainage from the road into the creek. There exists a cliff, established by the base of a tree, at the bottom of the asphalt from said roadway on the northwest portion of the bridge. The creek does not have any fencing barriers, obstructions, or curbing to prevent parties from falling from the road or the areas immediately adjacent thereto; nor are there any signs or warning devices to warn travelers of the dangerous propensities of the creek. As the plaintiff's daughter was traveling across the bridge, she ventured down the steep slope to the creek below. She thereafter slipped on the banks of the creek and fell into the creek. As a result, she incurred fatal injuries by drowning.

The plaintiff alleges in the complaint that the sole and proximate cause of her daughter's drowning was the defendant city's negligence in failing to maintain the road in a safe condition, thereby creating a continuing nuisance.

Upon consideration of the pleadings and other matters outside of the pleadings, the trial court entered judgment in the city's favor. ¹ The plaintiff appeals. Held :

"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.

It was on this premise that liability was predicated in Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834, 165 S.E.2d 141 (1968), where the city Maintained a defective traffic light, thereby creating a nuisance. See also Coppedge v. Columbus, 134 Ga.App. 5, 213 S.E.2d 144 (1975); Hutcheson v. City of Jesup, 132 Ga.App. 84, 207 S.E.2d 547 (1974).

However, in Englander v. City of East Point, 135 Ga.App. 487, 218 S.E.2d 161 (1975), the court held, "Deciding whether to erect or not to erect a traffic control sign . . . is an exercise of a governmental function by a municipality and it is not liable for any negligent performance of this function. Town of Ft. Oglethorpe v. Phillips, 224 Ga. 834, 165 S.E.2d 141; Arthur v. City of Albany, 98 Ga.App. 746, 106 S.E.2d 347; Lundy v. City Council of Augusta, 51 Ga.App. 655, 181 S.E. 237." In Englander, the Court of Appeals affirmed the trial court's dismissal of a complaint against a municipality because of its Failure to place signs or barricades...