When I moved to Atlanta 35 years ago, I was surprised by how unsightly all those utility lines are.
In Chicago, most streets have alleys and that’s where telephone and electric lines go. Out of sight. But here, they mar the views of otherwise beautiful streets.
Years later, when teaching my kids to drive, I saw it wasn’t just an aesthetic issue. As I sat shotgun and tried to guide nervous 15-year-olds, I sensed those poles were too close to my right ear. We’re talking pucker factor here as those poles swooshed by awfully close to our speeding vehicle.
A little swerve or inattention and it’s all over.
Now, the city of Milton is arguing that financial doomsday hangs over its head — and all Georgia cities — in the form of those utility poles and other structures along the roadway. Last year, the Georgia Court of Appeals ruled against the north-metro city, saying it’s on the hook for $32.5 million in the 2016 death of Joshua Chang.
Chang, a 21-year-old Yale senior, was home for Thanksgiving when he swerved and slammed into a cement planter on the side of the road, killing him. Police said there was no alcohol or cellphone involved in the wreck. He might have swerved to avoid a deer, they reckoned.
In 2023, a Fulton County jury found Milton liable in his death for not removing the planter, which sat a bit more than 6 feet off the asphalt.
Earlier this month, Milton City Attorney Ken Jarrard stood before the City Council and told officials the city faces a “crushing financial liability” if it has to pay up. Adding a sense of the gravity to the jury’s award, Milton budgeted $33,047,916 this year for its maintenance and operations.
Some 60 cities from across the state, including Atlanta, have filed “friends of the court” briefs in support of Milton, as have others like Georgia Power and the Georgia Municipal Association. They all want the Georgia Supreme Court to take up the case and overturn the appeals court.
Credit: Court document
Credit: Court document
The issue at hand for the cities is that lawyers for the Chang family, along with the appeals court judges, have pierced the sovereign immunity that normally protects government entities like a Star Trek force field. Sovereign immunity comes from old English law which means the king can do no wrong.
Or as MC Hammer put it: “U Can’t Touch This.”
Jarrard showed council members photos of utility poles, fire hydrants, signs and even roadside monuments, telling them: “You can see why utility companies would suddenly be concerned.”
He said the objects along every road “suddenly became a defect out of thin air.”
Rushi Patel, general counsel for the Georgia Municipal Association, told me: “The history of case law concerning road defects is that if it affects travel lanes, the city can be found liable.”
In other words, if it’s on the pavement, it’s a problem. Off the pavement, not our problem.
It would be a disaster, he said, “if cities are suddenly responsible for objects near the roadway.”
“If this case stands and cities are suddenly liable, it tells cities that they need to remove everything from right-of-ways,” Patel said. “And you cannot remove utility poles and fire plugs. So are we going to face liability if someone hits them?”
Patel’s pleading to the Supreme Court says cities would be facing a “Sisyphean task.”
Milton City Manager Steven Krokoff told me: “It’s a bit mind-blowing the scope and depth of this.”
He added: “Based on my observation, the plaintiffs had a dream team of attorneys who put together a heckuva case, one that tugged at the heartstrings. They tugged at my heart strings.”
The appeals court found that “the testimony at trial established that the planter was on the city’s property and in the right-of-way, which the city was responsible for maintaining. Per its ordinances, the city was responsible for inspecting its roadways, identifying defects, and removing hazards, such as the planter.”
Credit: Court document
Credit: Court document
Jed Manton, one of the legal “dream teamers” (who I hadn’t heard of until this), told me Milton is overblown in ringing the fire alarm on this matter. He said it’s a simple matter of one city’s “screwup,” allowing the 7-foot-wide planter, an old tractor tire filled with dirt, to remain too close to the highway. It had been there for decades, long before Milton became a city in 2006.
Rodney Motes, Milton’s own code enforcement officer, and Wayne Smith, an engineering expert brought in by the city, turned out to be important witnesses against the city. Both men noted the deadly planter had no real “utility,” meaning it was not really useful for the public good like an electricity pole or fire hydrant.
“So we got no utility. We got it on the shoulder, we got it on the city property,” a Chang attorney said to Smith at the trial. “This is a pretty simple situation. This thing just needed to be removed?”
“I don’t disagree,” Smith replied.
The trial’s Perry Mason moment came during Motes’ testimony. In an earlier deposition, he agreed the city code called for removal of obstructions like the planter.
Manton approached the witness, saying: “You said, ‘Oops, how did we never realize this was here? How did we let this happen?’ That’s exactly what you said in your deposition, isn’t it?”
The city’s attorney objected, but the judge allowed Chang’s team to play the tape of Motes saying just that.
Then the lawyer sat down. It was a $32.5 million “Oops.”
And maybe more expensive to all cities.
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