holding that O.C.G.A. § 32-6-51(b) does not preempt the common law, and thus “[t]o the extent that the common law imposed the duty to prevent vegetation from obstructing vision at a railroad crossing, that duty remains in effect.”
How later courts described this case
- holding that O.C.G.A. § 32-6-51(b) does not preempt the common law, and thus “[t]o the extent that the common law imposed the duty to prevent vegetation from obstructing vision at a railroad crossing, that duty remains in effect.”
- addressing whether the GCPT precluded a common law action for failure to keep railroad right-of-way free of visual obstructions
- “The common-law rules are still of force and effect in this State, except where they have been changed by express statutory enactment or by necessary implication.” (citation and punctuation omitted)
Written by the judges who cited it.
The opinion
*629 FLETCHER, Chief Justice,
dissenting.
Because the majority changes well-established law regarding the duty to maintain the safety of public roads where they cross railroad tracks, I dissent.
1. In 1973, the legislature enacted the Georgia Code of Public Transportation (GCPT), which repealed and replaced the existing law with respect to public roads and the duty to maintain those roads. The preamble to the Act set forth clearly that its purpose was to “repeal... other laws relating to all public roads ..., and to establish new laws relating thereto.” In devising a broad and comprehensive code, the legislature replaced the previously-existing common law duties. The legislature has in other instances specifically retained common law principles in enacting comprehensive legislation, 1 but explicitly chose not to do so with respect to the duty to maintain public roads.
Georgia’s appellate courts have consistently recognized that the comprehensive effect of this Act was to replace duties owed by various parties under the common law with a duty owed by the governmental entity responsible for the road. In Kitchen v. CSX Transp., 2 for example, this Court held that by virtue of the GCPT, the duty to maintain public roads and embankments over railroad tracks fell exclusively on the county. Because the statute places the duty exclusively on the governmental entity, private parties are no longer obligated to maintain the public roads. 3 Similarly, the Court of Appeals held in Evans Timber Co. v. Central of Ga. R. Co., 4 that the GCPT precluded a common-law cause of action against a railroad for failure to install protective devices at a grade crossing on a public road. Although private parties are prohibited from unlawfully obstructing public roads under OCGA § 32-6-51 (a) and (b), under OCGA§ 32-6-51 (c) it is the duty ofthe governmental entity to enforce this prohibition. A statutory prohibition against unlawful acts does not equate to an affirmative common law duty as the majority holds.
The specific duty relevant to this case is the duty to ensure that vegetation on private property does not obstruct the vision of a driver on a public road as it crosses a railroad track. Prior to the enactment of the GCPT, railroad companies at least shared the duty to ensure that vegetation on the rights-of-way did not obstruct visibility at *630 grade crossings. 5 However, the GCPT altered this duty and placed it exclusively on governmental entities. 6 Under OCGA § 32-6-51 (c), therefore, the county (which had responsibility for the road in question in this case) alone had the responsibility for ensuring that vegetation on private property did not obstruct the view of a driver on the public road crossing the railroad tracks.
Decided October 12, 2004
Reconsideration denied November 22, 2004.
Mark F. Dehler, Michael E. Perez, Smith & Jenkins, Wilson R. Smith, Robert L. Jenkins, for Fortner et al.
Brennan, Harris & Rominger, G. Mason White, James D. Kreyenbuhl, Casey, Gilson & Leibel, Matthew D. Williams, Robert S. McEvoy, for Town of Register and Ogeechee Railway.
Alexander T Stubbs, John M. Hyatt, Hall, Bloch, Garland & Meyer, J. Steven Stewart, F Kennedy Hall, amici curiae.
By reversing prior holdings that the creation of a statutory duty under the GCPT precludes a common law remedy, the majority now does great disservice to the stability of the law.
2.1 also dissent to the majority’s gross expansion of the statutory duty under OCGA § 32-6-51 (b) (3), which makes it unlawful for any person to maintain an “unauthorized” structure that obstructs a clear view from a public road. By holding that “unauthorized” means not only those structures prohibited by law, but also those not formally authorized by governmental action, the majority essentially rewrites the statute to altogether remove the requirement that the structure be “unauthorized.” In outlawing any vegetation on private property that does not have the official stamp of governmental approval, the majority improperly overturns years of consistent interpretation of this statute by the Court of Appeals. Again, the majority’s frolic into the legislative arena does great disservice to the law and to all owners of private property that abuts public roads.
I am authorized to state that Justice Hines joins in this dissent.
See OCGA § 7-1-8 (common law principles supplement Financial Institutions Code); OCGA § 11-1-103 (common law principles supplement the Uniform Commercial Code); OCGA § 53-12-7 (common law principles supplement Georgia Trust Act).
265 Ga. 206, 208 ( 453 SE2d 712 ) (1995).
Id.
239 Ga. App. 262, 266 ( 519 SE2d 706 ) (1999).
See Atlanta & West Point R. Co., 54 Ga. App. 666, 667 ( 188 SE 915 ) (1936).
OCGA §32-6-51.