Pothole and Road Defect Claims in Georgia

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A pothole claim in Georgia is a claim against a government, and the rules depend on which government answers for the road. A city street, a state highway, and a county road each come with their own liability statute and their own deadline for telling the government about the claim, and the shortest of those deadlines is six months.

The Municipal Street

A municipality “is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred” (OCGA 32-4-93(a)). The text joins three conditions with “or”: no negligence in constructing or maintaining, no actual notice, and no defect present long enough for notice to be inferred.

The immunity statute draws the line that a street-defect claim has to cross: a municipal corporation is not liable for failing to perform, or for errors in performing, its legislative or judicial powers, but it is liable for neglecting to perform, or for improperly or unskillfully performing, its ministerial duties (OCGA 36-33-1(b)).

Before suing a city, the injured person must give written notice. Within six months of the event on which the claim rests, the claimant must present the claim in writing to the city’s governing authority, stating as nearly as practicable the time, place, and extent of the injury and the negligence that caused it, and no court will hear the action until the claim has been presented (OCGA 36-33-5(b)).

For example, imagine a driver injured on a city street on March 3, 2027. Six months from the event runs to September 3, 2027.

The State Road

The State waives its sovereign immunity for the torts of its officers and employees acting within the scope of their duties, subject to the exceptions and limitations of the Tort Claims Act (OCGA 50-21-23(a)). One exception removes state liability for losses resulting from the plan or design of highways, roads, streets, bridges, or other public works, when the plan or design was prepared in substantial compliance with the engineering or design standards generally accepted when it was prepared (OCGA 50-21-24(10)). Written notice of the claim is due within 12 months after the loss was discovered or should have been discovered (OCGA 50-21-26(a)(1)).

The County Road

“A county is not liable to suit for any cause of action unless made so by statute” (OCGA 36-1-4), and a claim against a county must be presented within 12 months after the claim accrues or becomes payable, or, for a minor or another person under a disability, within 12 months after the disability is removed (OCGA 36-11-1).

Frequently Asked Questions

Does the Tort Claims Act cover a road maintained by a city or a county?
No. The Act’s definition of the State leaves out counties, municipalities, school districts, other units of local government, hospital authorities, and housing and other local authorities (OCGA 50-21-22(5)).

Does a city waive its immunity by buying liability insurance?
Only in the situations the statute names. A municipality does not waive its immunity by buying liability insurance, except as OCGA 33-24-51 or 36-92-2 provides or when the policy covers an occurrence for which sovereign immunity is available as a defense, and then only to the extent of the policy limits (OCGA 36-33-1(a)).

What is the difference between notice of the defect and notice of the claim?
Notice of the defect concerns what the city knew, or could be taken to have known, about the road (OCGA 32-4-93(a)). Notice of the claim is the written presentation the injured person must make before suing: six months for a city (OCGA 36-33-5(b)), 12 months from discovery for the state (OCGA 50-21-26(a)(1)), and 12 months for a county, with the separate rule for a minor or another person under a disability (OCGA 36-11-1).

  • OCGA 32-4-93(a); OCGA 36-33-1(a), (b); OCGA 36-33-5(b)
  • OCGA 50-21-22(5); OCGA 50-21-23(a); OCGA 50-21-24(10); OCGA 50-21-26(a)(1)
  • OCGA 36-1-4; OCGA 36-11-1

Disclaimer

This article provides general information about the Georgia statutes that bear on pothole and road defect claims. It is not legal advice and does not create an attorney-client relationship. The governing provisions depend on which government is responsible for the road, and the statutes may change. Anyone injured by a road defect should consult a licensed Georgia attorney promptly about the particular situation.

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