Dangerous Highway Shoulder Claims in Georgia

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A driver who pulls onto a highway shoulder to change a tire, wait out a breakdown, or clear the way for an emergency vehicle stops on part of a public road. When that shoulder drops off sharply at the pavement edge, has washed out, or is too narrow to clear the travel lane, the claim that follows turns first on which government body answers for that stretch of road, because that answer fixes the statute, the notice period, and whether recovery is capped. A shoulder on a state highway that runs through a city raises a rule of its own about the city’s liability.

Which Government Body Is the Defendant

The State’s waiver of immunity in the Georgia Tort Claims Act is a waiver by “the state,” a term the Act defines to include the State’s offices, agencies, departments, and institutions but not counties, municipalities, school districts, or other units of local government (OCGA 50-21-22(5); OCGA 50-21-23(a)).

A city is relieved of liability for defects in its own street system when it was not negligent in building or maintaining them, or when it had no actual notice of the defect, or when the defect had not existed long enough for notice to be inferred (OCGA 32-4-93(a)). That subsection turns on knowledge and time, and maintenance and inspection records, earlier complaints to the city, and dated photographs of the condition are the kinds of evidence that speak to both; records a city or state agency holds are public records open to inspection unless a court order or law exempts them (OCGA 50-18-71(a)(1)). For state and county roads inside its limits, subsection (b) goes further: a city is relieved of liability for “defective construction of those portions of the state highway system or county road 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” (OCGA 32-4-93(b)).

A county answers only where a statute makes it liable, and claims against a county must be presented within 12 months after they accrue, with a separate 12 months from the removal of a disability for a minor or a person under a disability (OCGA 36-1-4; OCGA 36-11-1).

For example, imagine a drop-off on the shoulder of a state highway inside a city’s limits. Unless the city built that stretch or agreed to maintain it, subsection (b) relieves the city of liability for a failure to maintain the road, and the claim points toward the State and the Tort Claims Act’s notice requirement and cap.

The State’s Exceptions for Design and Discretion

The Act keeps the State’s immunity for losses resulting from a discretionary function, meaning a policy judgment among alternative courses of action based on social, political, or economic factors, and for losses resulting from the plan or design of a highway or other public work prepared in substantial compliance with the engineering or design standards generally accepted when the plan was prepared (OCGA 50-21-22(2); OCGA 50-21-24(2), (10)). Paragraph (10) is written for the plan or design of the work. A claim built on how a shoulder was kept up afterward, such as an edge drop-off or a washout left in place, does not rest on the plan or design itself, but the claimant still has to show that no exception applies.

Who Must Prove the Exceptions Do Not Apply

The injured person carries that burden. In Department of Transportation v. Thompson, No. A19A1912 (Ga. Ct. App. Mar. 9, 2020), a mother and two children were hurt on a state highway when a car swerving around a vehicle waiting to turn crossed onto the shoulder, lost control, and struck them, and the suit alleged insufficient sight distance, inadequate warnings, and an improperly sloped shoulder. The trial court denied the Department’s motion to dismiss after finding that the Department had not rebutted the plaintiffs’ expert. The Court of Appeals vacated that ruling: the party seeking the benefit of the waiver of sovereign immunity must prove that the waiver applies, an expert affidavit sufficient to plead a claim does not by itself carry that proof, and a design is measured against the standards in effect when the plan was prepared. It returned the case to the trial court to decide whether the plaintiffs had shown, by a preponderance of the evidence, that the exceptions did not apply.

Notice and the Limit on Recovery

A claim against the State requires written notice within 12 months of the date the loss was or should have been discovered, and the courts have no jurisdiction until timely notice has been presented (OCGA 50-21-26(a)(1), (a)(3)). No person may recover more than $1 million for a single occurrence, and the State’s aggregate liability per occurrence may not exceed $3 million (OCGA 50-21-29(b)(1)).

Frequently Asked Questions

When must a lawsuit against the State be filed?
Within two years after the date the loss was or should have been discovered; a tort action under the Act filed later is barred for good (OCGA 50-21-27(c)).

Can suit be filed as soon as the notice is sent?
No. An action may not be commenced until the Department of Administrative Services has denied the claim or more than 90 days have passed after the notice without action (OCGA 50-21-26(b)).

Are punitive damages or prejudgment interest available against the State?
No. “No award for damages under this article shall include punitive or exemplary damages or interest prior to judgment” (OCGA 50-21-30).

Is there a notice deadline for a claim against a city?
Yes. A claim against a municipal corporation must be presented within six months of the happening of the event on which it is based (OCGA 36-33-5(b)).

  • OCGA 50-21-22(2), (5); OCGA 50-21-23(a); OCGA 50-21-24(2), (10)
  • OCGA 50-21-26(a)(1), (a)(3), (b); OCGA 50-21-27(c); OCGA 50-21-29(b)(1); OCGA 50-21-30
  • Department of Transportation v. Thompson, No. A19A1912 (Ga. Ct. App. Mar. 9, 2020)
  • OCGA 32-4-93(a), (b); OCGA 36-33-5(b); OCGA 50-18-71(a)(1)
  • OCGA 36-1-4; OCGA 36-11-1

Disclaimer

This article provides general information about the Georgia statutes that bear on claims over highway shoulder defects. It is not legal advice and does not create an attorney-client relationship. Immunity rules and notice deadlines depend on which government body is involved and on the facts, and the statutes may change. Anyone injured on or beside a highway shoulder should consult a licensed Georgia attorney promptly about the particular situation.

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