Georgia nuisance law provides a potential remedy for landowners whose property has been damaged by the activities of a developer, neighboring landowner, or municipality.
Georgia nuisance law provides a potential remedy for landowners whose property has been damaged by the activities of a developer, neighboring landowner, or municipality. O.C.G.A. § 41-1-1 defines a nuisance as "anything that causes hurt, inconvenience, or damage to another and the fact that the act done may be otherwise lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be as would affect an ordinary, reasonable man." Lawful acts become nuisances when they are conducted in a manner causing hurt, inconvenience, or damage to another. See Sumitomo Corp. of Am. v. Deal, 256 Ga. App. 703, 708, 569 S.E.2d 608, 613 (2002).
To be held liable for nuisance, “ownership of land by the tortfeasor is not an element, but control is; the essential element of nuisance is control over the cause of the harm. The tortfeasor must either be the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance.” Fielder v. Rice Constr. Co., 239 Ga. App. 362, 366, 522 S.E.2d 13 (1999).
Municipalities are liable for nuisances under certain circumstances. Municipal immunity from tort liability does not extend to nuisance actions. "A municipality like any other individual or private corporation may be liable for damages it causes . . . from the operation or maintenance of a nuisance, irrespective of whether it is exercising a government or ministerial function." City of Thomasville v. Shank, 263 Ga. 624, 624, 437 S.E.2d 306, 307 (1993). The policy underlying this exception to sovereign immunity is "based on the principle that 'a municipal corporation can not, under the guise of performing a governmental function, create a nuisance dangerous to life and health or take or damage private property for public purpose, without just and adequate compensation being first paid.'" Id. at 624-25, 437 S.E.2d at 307 (quoting Delta Air. Corp. v. Kersey, 193 Ga. 862, 870, 20 S.E.2d 245 (1942)).
Georgia courts have established factors establishing municipal liability: "the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous and regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition." Hibbs v. City of Riverdale, 267 Ga. 337, 338, 478 S.E.2d 121, 122 (1996). When municipalities approve development projects which create a nuisance, the city may be responsible for approving such projects.City of v. Myszka, 246 Ga. 571, 572, 272 S.E.2d 302, 304 (1980).
In City of Bowman v. Gunnells, 243 Ga. 809, 811, 256 S.E.2d 782 (1979), the Supreme Court established guidelines for determining whether a municipality will be liable for creating or maintaining a nuisance: the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition.
In Hibbs, v. City of Riverdale 267 Ga. 337, 478 S.E.2d 121 (1996), the Hibbses sued the City of Riverdale seeking damages and injunctive relief from the repeated flooding of their property caused by a storm drainage system installed in their subdivision. Id. at 337. They alleged that the City negligently approved the developer’s plans and construction of the subdivision’s inadequate storm drainage system and was responsible for the maintenance of the nuisance resulting from the faulty system. Id. The Court of Appeals concluded inHibbs v. City of Riverdale, 219 Ga. App. 457, 465 S.E.2d 486 (1995), that the crux of the plaintiffs’ complaints was negligence and negligence is insufficient to support of cause of action for nuisance. Id.
The Supreme Court of Georgia, however, reversed this decision. Id. “While a municipality enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function, it may be liable for damages it causes to a third party from the creation or maintenance of a nuisance.” Id. See also City of Thomasville v. Shank, 263 Ga. 624, 437 S.E.2d 306 (1993). The problem arises in determining what conduct or act on the part of a municipality will result in the creation or maintenance of a nuisance, as opposed to negligence. Id. at 338.
The Court ultimately held that “where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of a property, a continuing, abatable nuisance is established, for which the municipality is liable.” Id. The question left for the Court of Appeals to decide on remand was whether the City’s action constituted such exercise of control or acceptance so as to establish a duty on the part of the City to adequately maintain it. Id. at 339.
To prevail on a nuisance claim against a municipality, plaintiffs are required to establish a municipality's notice of the nuisance and its failure to correct the problem once the municipality has notice of the problem. Direct or constructive notice can satisfy this requirement. Constructive notice of a nuisance can be established through evidence about how long the nuisance has existed. Carter v. Mayor & Alderman of City of Savannah, 200 Ga. App. 263, 265-66, 407 S.E.2d 421, 424 (1991). "Notice may also be imputed to the city from the knowledge of its own agents or employees." Id. at 266, 407 S.E.2d at 424.
O.C.G.A. § 36-33-5(b) (2005) requires a claimant to give written notice to a municipality of a suit for damages to a person or property “within six months of the happening of the event” upon which the claim is based. See Cundy v. City of Smyrna, 264 Ga. App. 535, 536, 591 S.E.2d 447 (2003). “[A] property owner who incurs damage as a result of a continuing nuisance or trespass maintained by a municipality is entitled, within the four-year period of limitations, to recover only those damages incurred during the six months preceding the giving of [the notice required by O.C.G.A. § 36-33-5].” City of Chamblee v. Maxwell, 264 Ga. 635, 637, 452 S.E.2d 488 (1994).
Counties are liable for nuisances under certain circumstances, but these conditions differ from those applicable to municipalities. Dekalb County v. Orwig, 261 Ga. 137, 138, 402 S.E.2d 513, 514 (1991). The Georgia Constitution provides for a waiver of a county's sovereign immunity in cases where a county creates a nuisance "which amounts to an inverse condemnation." Duffield v. Dekalb County, 242 Ga. 432, 433, 249 S.E.2d 235, 236 (1978). A county is generally not liable for creating nuisances Id. at 434, 249 S.E.2d at 237. However, "[w]here a county causes, creates, or maintains a nuisance which amounts to an inverse condemnation, the county is liable in damages that would be recoverable in an action for inverse condemnation." Fielder v. Rice Constr. Co., Inc., 239 Ga. App. 362, 364, 522 S.E.2d 13, 15 (1999).
Liability against counties is proper in cases where the government entity created or maintained a nuisance "which constitutes either a danger to life and health or a taking of property." City of Thomasville v. Shank, 263 Ga. 624, 625, 437 S.E.2d 306, 307 (1993). On the other hand, a county is not liable for a nuisance "which does not rise to the level of a taking of property." Dekalb County, 261 Ga. at 138, 402 S.E.2d at 514.
The ante litem notice provisions are different for a county than for a municipality. As stated in O.C.G.A. § 36-11-1 (2005), “all claims against counties must be presented within 12 months after they accrue or become payable or the same are barred…” The Court of Appeals has held that a taking occurs “as of the point in time when the damaging activity has reached a level which substantially interferes with the owner’s use and enjoyment of his property.” Jones v. E.R. Snell Contractor, Inc., 333 F. Supp. 2d 1344, 1351 (2004), citingHulsey v. Department of Transportation, 230 Ga. App. 763, 766, 498 S.E.2d 122 (1998). Georgia precedent, however, relaxes the ante-litem notice requirement when there is additional damage caused by a continuing nuisance. Id., citing Reid v. Gwinnett County, 242 Ga. 88, 89-90, 249 S.E.2d 559 (1979). Nevertheless, the damages which may be recovered in such a case are limited to damages suffered during the twelve months preceding the ante-litem notice. Id. This means that a plaintiff must give notice within twelve months after the water substantially interfered with her property.