Leon Fortner was killed when a train operated by Ogeechee Railway collided with his tractor-trailer at a railroad crossing in the Town of Register. His widow, Sheila Fortner, brought suit individually, as administratrix of his estate, and as guardian of their minor child, against the Railway and the Town Appellees, alleging, among other claims, that they failed to keep the railroad right-of-way free of visual obstructions caused by overgrown vegetation planted by the Town. After Appellees moved for summary judgment, the trial court denied the motions as to this claim, although it granted summary judgment with respect to the other claims. The trial court found that there were genuine issues of material fact as to whether Appellees had violated OCGA § 32-6-51 b 3: It shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which . . . obstructs a clear view from any public road to any other portion of such public road, to intersecting or adjoining public roads, or to property abutting such public road in such a manner as to constitute a hazard to traffic on such roads . . . . On interlocutory appeal, the Court of Appeals reversed, holding in part that the allegedly vision-obstructing vegetation was not “unauthorized” under OCGA § 32-6-51 b 3 because there was no evidence that it was planted or maintained in violation of any statute, code, or local ordinance, and that the Georgia Code of Public Transportation GCPT, of which OCGA § 32-6-51 is one section, precludes a common law action. Town of Register v. Fortner , 262 Ga. App. 507 586 SE2d 54 2003. This Court granted certiorari to review these rulings and, unless both of them are correct, the judgment of the Court of Appeals must be reversed. We now conclude that neither the GCPT in general, nor OCGA § 32-6-51 b 3 in particular, preempts the common law and that, for purposes of that statute, vegetation or other structures are “unauthorized” when there is an absence of any governmental authorization for them. Accordingly, genuine issues of material fact remain with respect to two separate, independent duties, one arising from the common law and the other statutory. Therefore, we reverse the judgment of the Court of Appeals and remand the case for consideration of remaining enumerations of error. 1. 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. Cits.” Robeson v. Intl. Indemnity Co. , 248 Ga. 306, 307 1 282 SE2d 896 1981. Nothing in the GCPT expressly preempts the common law. Instead, the GCPT was enacted to change prior statutory law “to revise, classify, consolidate, and repeal Title 95, Code of Georgia of 1933 . . . and other laws relating to all public roads, bridges and ferries and other modes of transportation in the State.” Ga. L. 1973, p. 947. See also Kitchen v. CSX Transp. , 265 Ga. 206, 207 1 453 SE2d 712 1995; Ga. L. 1973, supra at 1174, § 2 specific repealer of numerous code sections.
In dicta in Kitchen , supra at 208 1, fn. 6, this Court suggested that governmental bodies have the exclusive duty to install and maintain traffic control devices on public roads, including railroad crossings, and that OCGA § 32-6-51 a prohibits “private entities, including railroads, from placing traffic control devices on the public roads.” To the contrary, state and local governments can require railroads to install protective devices, and railroads must maintain all such devices. OCGA § 32-6-200 a, b 3. Our actual holding in Kitchen , supra at 208 1, was that, pursuant to OCGA § 32-6-197 b, the GCPT obliged the governmental body, but not the railroad, to maintain a public road and any warning devices thereon leading to a bridge over railroad tracks. More importantly, we did not conclude that that statute preempted the common law, but rather we assumed that a common-law duty of care survived the GCPT. Kitchen v. CSX Transp. , supra at 209 2.
