OCGA § 32-4-93(a) Limits Road-Defect Liability but Does Not Waive Municipal Immunity; OCGA § 36-33-1(b) Waiver Applies Only to Ministerial Street-Safety Duties Within Lanes of Ordinary Travel

1. Introduction

In CITY OF MILTON v. CHANG, et al. (Mar. 12, 2026), the Supreme Court of Georgia took up a recurring and often-confused problem in municipal tort litigation: how to determine whether a city may be sued for negligence arising from an alleged “defect” associated with a city street. The case arose from a tragic single-vehicle crash in which Joshua Chang’s car left Batesville Road in the City of Milton, traveled off the paved roadway, and ultimately struck a substantial concrete planter positioned more than six feet off the road, causing fatal injuries.

Chang’s parents sued the City, pursuing both (1) negligence based on an alleged road “defect” and (2) nuisance. A jury returned a verdict for plaintiffs, awarding $35 million (reduced by comparative fault). On appeal, the key question became not merely whether the planter could be deemed a “defect,” but whether the City’s municipal immunity was waived at all—and, if so, by which statute and under what duty.

The Court granted review to clarify the interplay between two statutes frequently cited together in road-condition cases:

  • OCGA § 36-33-1(b): waives municipal immunity for negligence in performing ministerial duties.
  • OCGA § 32-4-93(a): sets conditions under which a municipality is “relieved” of liability for “defects in the public roads” (focusing on negligence and notice).

The Court also addressed the scope of the long-recognized ministerial duty to keep streets and sidewalks “safe for travel”—specifically, whether that duty extends beyond the “lanes of travel” to areas that might be traversed only during accidents or emergencies.

2. Summary of the Opinion

The Supreme Court vacated the Court of Appeals’ decision and remanded. It announced three core holdings:

  1. OCGA § 32-4-93(a) does not waive municipal immunity. It codifies limits on a substantive road-defect negligence claim (e.g., negligence and notice), but it is not itself an immunity waiver.
  2. A road-defect negligence claim may proceed under OCGA § 36-33-1(b) only if it implicates a municipal “ministerial duty.” The waiver inquiry is distinct from whether the plaintiff proved the elements of a road-defect claim under OCGA § 32-4-93(a).
  3. The ministerial duty to keep streets and sidewalks safe for travel is limited to “ordinary travel” in the areas intended for travel—i.e., the lanes of travel. The duty does not extend to keeping areas outside the lanes of travel safe for traversal in case of an accident or emergency (though other duties or waivers may exist).

Applying these principles, the Court concluded that the plaintiffs’ road-defect negligence claim—predicated on a planter located roughly six feet off the paved road—did not implicate the narrow, precedent-defined ministerial duty and therefore was not covered by the OCGA § 36-33-1(b) immunity waiver. The Court expressly did not decide whether other waivers (including OCGA § 36-33-1(a)’s insurance-based waiver) might apply, and it did not reach the nuisance issues.

3. Analysis

3.1. Precedents Cited (and Their Role in the Court’s Reasoning)

A. Constitutional and waiver framework

  • Guy v. Hous. Auth. of City of Augusta, 321 Ga. 873 (2025): The Court relied on this decision for the proposition that the Georgia Constitution preserves common-law municipal immunity and confirms that only the General Assembly may waive it. This framed the analysis: the Court demanded an explicit waiver source before the claim could proceed.
  • CSX Transp., Inc. v. City of Garden City, 277 Ga. 248 (2003): Cited to underscore the exclusivity of legislative authority to waive municipal immunity—reinforcing that a statute addressing “liability” does not automatically operate as an immunity waiver unless it clearly does so.
  • Starship Enter. of Atlanta v. Gwinnett County, 319 Ga. 293 (2024): Used to emphasize that sovereign (and municipal) immunity is a “threshold jurisdictional issue.” This supported the Court’s critique that the Court of Appeals improperly jumped from evidence-of-defect to waiver-of-immunity.

B. OCGA § 36-33-1(b) and the governmental/ministerial split

  • Cornelisen v. City of Atlanta, 146 Ga. 416 (1917): Anchored the historical understanding that OCGA § 36-33-1(b) codified Georgia’s longstanding doctrine distinguishing municipal nonliability for governmental functions from liability for negligent ministerial duties.
  • Collins v. Mayor of Macon, 69 Ga. 542 (1882): Cited via the Code history to show the deep roots of the ministerial/governmental dichotomy in Georgia municipal law.
  • Gatto v. City of Statesboro, 312 Ga. 164 (2021): Provided modern reinforcement of the analytic framework and highlighted the acknowledged “incongruity” of labeling street maintenance as “ministerial” under the public/private test.
  • City of Atlanta v. Mitcham, 296 Ga. 576 (2015): Critical for the proposition that OCGA § 36-33-1(b)’s “shall be liable” language operates as an immunity waiver when a claim truly involves negligent performance of a ministerial duty.
  • Mayor & Council of Dalton v. Wilson, 118 Ga. 100 (1903): Used to confirm that the “duty to keep city streets and sidewalks safe for travel” has long been treated as a ministerial duty.

C. Defining the street/sidewalk duty—its content and its limits

The Court’s narrowing of the duty to “ordinary travel” in “lanes of travel” was built from a survey of older decisions describing the duty’s purpose and factual setting:

  • Love v. City of Atlanta, 95 Ga. 129 (1894): Quoted to show the conceptual tension: street repair looks like a public governmental duty, yet precedent classifies it as ministerial.
  • City of Atlanta v. Hampton, 139 Ga. 389 (1913); Idlett v. City of Atlanta, 123 Ga. 821 (1905); City of Atlanta v. Perdue, 53 Ga. 607 (1875); City of Milledgeville v. Cooley, 55 Ga. 17 (1875); Bellamy v. City of Atlanta, 75 Ga. 167 (1885): These decisions repeatedly characterize the duty as keeping streets and sidewalks reasonably safe so persons may travel “in the ordinary methods/modes of travel.”
  • City of Atlanta v. Milam, 95 Ga. 135 (1894); City Council of Augusta v. Tharpe, 113 Ga. 153 (1901): Used to show that the duty covers all parts of sidewalks “intended for travel,” and may include hazards adjoining the traveled way that render ordinary use unsafe. But the majority distinguished Tharpe as involving ordinary travel (crossing to a sidewalk), not off-road traversal after an accident.
  • Parker v. Mayor & Council of Macon, 39 Ga. 725 (1869): Cited as an illustration (in a nuisance context) of municipal obligations to protect travelers from hazards at the edge of streets.

D. The dissent’s key reliance cases

  • Wilson v. City of Atlanta, 60 Ga. 473 (1878); City of Atlanta v. Wilson, 59 Ga. 544 (1877): The dissent read these as recognizing that the duty includes making streets reasonably safe “including such accidents as might, without fault on the part of the traveler, befall him,” and thus would cover off-lane hazards. The majority treated that language as non-controlling in context (a causation discussion) and emphasized that the claim there concerned protecting the travel lane (e.g., railings), not making off-road areas safe to traverse after leaving the lane.
  • Schoicket v. State, 312 Ga. 825 (2021): Used by the majority for the principle that holdings are limited to their factual context and issues necessarily decided, supporting the majority’s narrow reading of Wilson.

3.2. Legal Reasoning

A. The Court separated “immunity waiver” from “substantive liability elements”

A central corrective move in the opinion is methodological: the Court insisted that courts must not conflate (1) whether a plaintiff can prove a road-defect negligence claim with (2) whether municipal immunity has been waived to permit that claim to be litigated against the city.

The Court of Appeals, in City of Milton v. Chang, 373 Ga. App. 667 (2024), began with the right question (is immunity waived?) but then effectively answered it by applying OCGA § 32-4-93(a)’s “defect/negligence/notice” framework—treating those elements as if they themselves established waiver. The Supreme Court held that approach to be error because OCGA § 32-4-93(a) does not speak in waiver terms and historically functioned as a limitation on the claim’s elements, not a jurisdictional gateway through immunity.

B. OCGA § 32-4-93(a): a liability-limiting statute, not a waiver

The Court relied on text and statutory history. Textually, OCGA § 32-4-93(a) says a municipality is “relieved of any and all liability” under specified conditions—language that presupposes liability could exist (from some source) but does not create or authorize suit against an immune municipality.

Historically, the Court traced the predecessor provision (Ga. Code of 1895 § 749) to Mayor of Montezuma v. Wilson, 82 Ga. 206 (1888), which addressed the evidentiary/notice basis for negligence, not immunity waiver. The Court reasoned that recodification and amendment did not transform this substantive limitation into a waiver.

C. OCGA § 36-33-1(b): waiver exists, but only for the defined ministerial duty

Having located waiver potential in OCGA § 36-33-1(b), the Court then confronted the crucial boundary question: what counts as the “ministerial duty” in street/sidewalk cases?

The Court acknowledged the doctrinal oddity—street safety appears “governmental” under the usual public/private test—but treated that classification as entrenched by stare decisis. Because the duty’s ministerial label is precedent-driven rather than conceptually derived, the Court confined itself to what prior cases actually held about the duty’s scope.

D. The new limiting rule: “ordinary travel” in “lanes of travel”

The Court distilled precedent into this operational rule: the ministerial duty extends to keeping streets and sidewalks safe for ordinary travel on parts intended for such travel—“the lanes of travel.” It can include adjacent hazards that endanger ordinary use of those lanes, but it does not extend to ensuring that areas outside the lanes of travel are safe to traverse in the event a vehicle departs the roadway during an accident or emergency.

On the record, Chang’s vehicle left the paved road, traveled a significant distance off-road, and struck a planter positioned roughly six feet from the roadway. The Court treated that location as outside the “ordinary travel” area for which the ministerial duty’s waiver is available. Therefore, OCGA § 36-33-1(b) did not waive immunity for the negligence claim as litigated.

E. The Court’s narrow disposition

The Court emphasized what it did not decide: it did not determine whether OCGA § 36-33-1(a) (insurance-based waiver) might allow litigation up to policy limits; it did not decide the underlying negligence duty of care in tort terms; and it did not reach nuisance issues.

3.3. Impact

A. Doctrinal and procedural impact: a clarified two-step approach

The opinion creates a clearer sequencing rule for Georgia municipal road-condition cases:

  1. Step 1 (jurisdiction): identify an actual waiver of municipal immunity (e.g., OCGA § 36-33-1(b) for ministerial duties, or OCGA § 36-33-1(a) for insurance-based waiver).
  2. Step 2 (merits): only after waiver exists, evaluate the substantive negligence claim—where OCGA § 32-4-93(a) may limit liability by requiring negligence and notice (actual or constructive), among other elements.

This reduces the risk that plaintiffs (and courts) treat OCGA § 32-4-93(a) as a “waiver-by-elements” provision.

B. Substantive impact: narrowed ministerial-duty pathway in off-road crash cases

The most consequential practical effect is the “lanes of travel” limitation on the OCGA § 36-33-1(b) waiver in this category. Plaintiffs injured by objects on shoulders, rights-of-way, or other off-lane areas may now face a threshold immunity barrier unless they can:

  • tie the hazard to the safety of ordinary travel within the travel lanes (including certain adjacent hazards that render lane travel unsafe), or
  • establish a different waiver source (notably the insurance-based waiver under OCGA § 36-33-1(a)), or
  • pursue alternative theories (e.g., nuisance), subject to whatever immunity rules govern those claims (which the Court did not decide here).

C. Litigation strategy impact: pleadings and proof will shift

Expect future plaintiffs to focus more heavily on:

  • Framing the location and function of the area where the injury occurred as part of “ordinary travel” (e.g., whether a shoulder is designed for foreseeable ordinary use, not merely emergencies);
  • Insurance-waiver development (policy coverage, limits, and whether the occurrence is covered “for which the defense of sovereign immunity is available” under OCGA § 36-33-1(a));
  • Nuisance doctrine, which may become a more prominent battleground given the narrowed ministerial-duty waiver.

The dissent underscores that the “ordinary travel” concept is contestable; its view suggests future cases may litigate what “ordinary” means for shoulders, verge areas, or pedestrian crossings.

4. Complex Concepts Simplified

  • Municipal (sovereign) immunity: A default rule that a city cannot be sued for damages unless a constitutional or statutory provision clearly allows it.
  • Waiver vs. liability elements: A plaintiff must first show the city is suable (waiver). Only then does it matter whether the plaintiff can prove negligence elements like defect, notice, causation, and damages.
  • Ministerial duty (in this context): A category of city responsibility that, under OCGA § 36-33-1(b), can expose the city to suit for negligent performance. Georgia precedent treats “keeping streets/sidewalks safe for travel” as ministerial, even though it resembles a public governmental function.
  • OCGA § 32-4-93(a): A statute that limits when a municipality will be liable for road defects (especially focusing on negligence and notice). This decision holds it does not itself open the courthouse door by waiving immunity.
  • “Lanes of travel” / “ordinary travel”: The majority’s boundary for the ministerial street-safety duty: the duty protects typical travel on parts of the street/sidewalk intended for that travel, not off-lane traversal after a departure from the roadway during an accident or emergency.

5. Conclusion

CITY OF MILTON v. CHANG, et al. establishes an important clarification in Georgia municipal tort law: OCGA § 32-4-93(a) is not an immunity waiver, and courts must not treat satisfaction of that statute’s defect/notice framework as a substitute for identifying a true waiver. Instead, plaintiffs must locate waiver in a proper waiver provision—most prominently OCGA § 36-33-1(b)—and then show their claim implicates an actual ministerial duty.

On scope, the Court crystallizes a limiting principle with immediate consequences for roadway-adjacent hazard cases: the ministerial duty (and thus OCGA § 36-33-1(b)’s waiver) is confined to ordinary travel within the lanes intended for travel, not off-lane areas encountered only because of accidents or emergencies. While leaving room for other waiver routes (notably insurance) and for nuisance litigation, the decision will likely narrow the set of road-condition negligence claims that can proceed against municipalities absent a separate waiver—and it will shift future disputes toward the meaning of “ordinary travel” and the characterization of borderline roadway areas like shoulders and rights-of-way.