City of Milton v. Chang

Facts

On November 27, 2016, Joshua Chang, a 19-year-old college student, was killed in a single-car accident on Batesville Road, a public roadway maintained by the City of Milton. Chang was driving home at night when his vehicle veered off the paved roadway, traveled across the unpaved shoulder, and struck a large, unmarked concrete planter that was located within the right-of-way. The impact caused Chang’s car to flip, land on top of the planter, and result in fatal injuries.

Investigators found no evidence of speeding, intoxication, or distraction. A crash reconstruction expert concluded that Chang had likely swerved to avoid an obstacle in the roadway, causing his vehicle to rotate sideways before striking the planter. The expert also determined that the planter’s rigid structure and placement within the right-of-way significantly increased the crash’s severity.

The planter had existed in the right-of-way for over a decade, originally placed by a property owner before the City of Milton was incorporated. Evidence showed that:

• The planter had remained in its location despite multiple city road inspections and resurfacing work in 2012.
• The planter was not marked, illuminated, or protected by any signage warning drivers of its presence.
• The City had received at least one prior complaint about the planter’s obstruction of the right-of-way, but no action was taken.
• Internal City emails showed that officials were aware of the planter before Chang’s crash. The City’s code enforcement officer admitted, “Oops… how did we never notice this?”

Chang’s parents sued the City of Milton, alleging that it had failed to maintain Batesville Road in a reasonably safe condition under O.C.G.A. § 32-4-93(a). They argued that:

1. The planter was a hazardous obstruction within the right-of-way, making it part of the road under Georgia law.
2. The City’s duty to inspect, remove, or mitigate known hazards in the right-of-way was a ministerial function, and therefore, the City did not have sovereign immunity.
3. The City’s failure to act despite knowledge of the planter constituted negligence and the maintenance of a nuisance.

The City asserted sovereign immunity, arguing that:

1. It had no legal duty to remove the planter because it was outside the paved roadway.
2. The right-of-way was not part of the road, meaning there was no duty to maintain or remove hazards.
3. Any waiver of immunity was limited to the extent of the City’s insurance coverage under O.C.G.A. § 36-33-1.

The jury found the City of Milton liable, awarding the Chang family $35 million in damages, later reduced by 7% for comparative fault. The trial court denied the City’s motions for judgment notwithstanding the verdict (JNOV) and a new trial. 

The City appealed, challenging the trial court’s ruling on sovereign immunity, the definition of a road, and the extent of the waiver of immunity. The Chang family cross-appealed, arguing the trial court erred by failing to award pre-judgment interest and failing to enter judgment nunc pro tunc to the date of the jury’s verdict.

Issues & Holdings

1. Sovereign Immunity and Ministerial Duty

Did the trial court err in denying JNOV by holding that the City had a ministerial duty to remove the planter and thus was not protected by sovereign immunity?

Holding: No. The Court of Appeals affirmed the trial court’s ruling, holding that the City had a ministerial duty to maintain safe road condition, and that this extended to the area where the planter was located.

2. Waiver of Sovereign Immunity Based on Insurance

Was the City’s waiver of sovereign immunity limited to the amount of insurance it had?

Holding: No. The Court of Appeals ruled that insurance-based waivers and ministerial duty waivers are separate doctrines, rejecting the City’s position.

3. Nuisance Liability

Did the plaintiffs present sufficient evidence to establish that the City maintained a nuisance?

Holding: The Court concluded it did not need to address this issue in light of its holding that the City was liable for negligence in violating a ministerial duty.

4. Admission of Testimony on Ordinances

Did the trial court err by allowing witnesses to testify about their interpretations of City ordinances?

Holding: No. Even if the testimony was improper, the Court of Appeals found the error to be harmless.

5. Pre-Judgment Interest and Nunc Pro Tunc Judgment

Did the trial court err in failing to award pre-judgment interest and enter judgment nunc pro tunc?

Holding: Yes. The Court of Appeals vacated and remanded for the trial court to award pre-judgment interest and correct the judgment date.

Reasoning

1. Sovereign Immunity and Ministerial Duty

Sovereign immunity generally shields municipalities from liability, but it does not apply where the municipality has violated a ministerial duty (as distinguished from a governmental function).  Under O.C.G.A. § 32-4-93(a), municipalities must maintain roads in a reasonably safe condition for travel. 

The Court of Appeals held that:

• The duty to inspect, repair, and maintain safe road conditions is a ministerial duty under Georgia law.
• Failure to remove an obstruction within the right-of-way falls under the City’s non-discretionary duty to keep roads clear.
• The City’s failure to act, despite acknowledging the planter’s existence, removed any claim of governmental discretion.

Nevertheless, the City argued that the planter was not part of the road, asserting that the right-of-way was separate from the roadway itself, entitling it immunity. The Court of Appeals rejected this argument, citing O.C.G.A. § 32-1-3(25), which defines a road as including:

• Roads and other areas open to the public acquired as a right of way
• Surface, shoulders and sides

Additionally, the City’s own municipal code provided that a right-of-way includes the shoulder.

The Court of Appeals held that the shoulder and right-of-way adjacent to a roadway are part of the road, making the City responsible for clearing hazards in those areas.

And here, there was ample evidence that the City had notice of the planter’s existence based on the fact it had existence since at least 2006, and based on repair work done to the road in 2012.

2. Waiver of Sovereign Immunity Based on Insurance

The City argued that any waiver of sovereign immunity should be limited to the extent of its insurance coverage under O.C.G.A. § 36-33-1. The Court of Appeals rejected this argument, distinguishing between:

1. Insurance-based waivers of immunity, which only apply where a municipality has purchased coverage.
2. Ministerial duty-based waivers, which apply independently of insurance.

Because the City’s duty to maintain roads was a ministerial function, the waiver of immunity was not dependent on the existence of insurance coverage. 

3. Nuisance Liability

The City argued that it was not liable under a nuisance theory, but the Court did not reach this issue based on its conclusion that the City was liable for violating a ministerial duty. 

4. Admission of Testimony on City Ordinances

The City objected to testimony from its employees about their interpretations of City ordinances, arguing that statutory interpretation is a legal question for the court, not a factual question for the jury. The Court of Appeals concluded that any error in admitting the testimony was harmless because:

• The jury was instructed on the City’s statutory duty to maintain roads.
• There was overwhelming independent evidence that the planter was within the right-of-way and should have been removed.

5. Pre-Judgment Interest and Nunc Pro Tunc Judgment

The Changs were entitled to pre-judgment interest under OCGA § 51-12-14 because the City rejected a $10 million settlement offer, and the jury ultimately awarded $35 million. 

Similarly, the Changs sought a nunc pro tunc judgment to reflect the actual date of the jury verdict, arguing that a delay in the trial court’s judgment entry was a clerical error. The Court of Appeals agreed.

Conclusion

This decision is important for anyone who handles government liability claims. The case distinguishes between a waiver of sovereign immunity based on the purchase of insurance versus a wavier based on a city’s ministerial duties. The case also reinforces the responsibility that cities have to maintain safe roads, and that this can extend to areas adjacent to the traveled road that are part of the city’s right of way.

Citation: City of Milton v. Chang, Nos. A24A0802, A24A0803 (Ga. Ct. App. September 16, 2024)