Cyr v. Mayor of Savannah

Beasley, Judge,

concurring specially.

I fully concur. There is an important aspect of this case, not easily discernible in the opinion, which controls the outcome.

Plaintiffs allege that they did not stop because the stop sign was obscured, and that this was the proximate cause of their injuries. They do not allege that they failed to stop because their vision of the cross street’s approach to the intersection was obscured so that they did not see oncoming traffic and that this caused the collision. Although they allege that they slowed and, not seeing other traffic, proceeded and were struck, their theory does not embrace this inability to see other traffic as the proximate cause.

A municipality may be liable for damages resulting from defects in the roads when it is negligent in maintaining the roads. OCGA § 32-4-93. “Defects” include objects adjacent to, and suspended over, the streets, the presence of which renders use of the streets more hazardous. Richards v. Mayor of Americus, 158 Ga. App. 693 (282 SE2d 122) (1981). The case of Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 836-837 (165 SE2d 141) (1968) refers to “physical obstructions,” the presence of which may constitute a failure to keep the street “in a condition reasonably safe for travel,” which is the exercise of a corporate or proprietary power and thus a ministerial function.

The stop sign regulated traffic. Plaintiffs’ theory is that if it had been visible, they would have obeyed its regulatory command. The failure to be given notice of the requirement to stop at the intersection is what plaintiffs complain of. It was to them as though absent. The sign’s presence and maintenance is a governmental function, however, an exercise of the police power. OCGA § 32-6-50; Town of Fort Oglethorpe, supra at 837. The presence or absence of traffic control devices, and the maintenance of them after installation,' is a governmental function. Englander v. City of East Point, 135 Ga. App. *263487 (218 SE2d 161) (1975). This would of necessity include their visibility.

Decided September 6, 1988. Andrew W. Estes, for appellants. Patrick T. O’Connor, James B. Blackburn, for appellees.

Since it is the obstruction of the traffic control device, and not obstruction of the sign of oncoming traffic, which plaintiffs contend caused them to advance and collide, they are barred from recovery for even negligent exercise of this governmental function. They cannot cross the bridge of liability by merely asserting that the city had a ministerial duty while complaining that the cause of injury was the negligent exercise of a governmental power. Arthur v. City of Albany, 98 Ga. App. 746 (106 SE2d 347) (1958).