City of Atlanta v. Kleber

677 S.E.2d 134, 285 Ga. 413, 2009 Fulton County D. Rep. 1571, 2009 Ga. LEXIS 175
CourtSupreme Court of Georgia
DecidedMay 4, 2009
DocketS08G1417, S08G1424
StatusPublished
Cited by29 cases

This text of 677 S.E.2d 134 (City of Atlanta v. Kleber) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Atlanta v. Kleber, 677 S.E.2d 134, 285 Ga. 413, 2009 Fulton County D. Rep. 1571, 2009 Ga. LEXIS 175 (Ga. 2009).

Opinions

MELTON, Justice.

These consolidated cases concern a nuisance1 and negligence action brought by Scott Kleber and Nancy Habif (collectively referred to as “the homeowners”) against Norfolk Southern Corporation and the City of Atlanta. In this action, the homeowners contended that Norfolk and the City had failed to properly maintain a drainage pipe and culvert near their property, resulting in their home being flooded during heavy rains. In Kleber v. City of Atlanta, [414]*414291 Ga. App. 146 (661 SE2d 195) (2008), the Court of Appeals reversed the trial court’s grant of summary judgment to Norfolk and the City, finding, among other things, that the nuisance about which the homeowners complained was continuing in nature and, as a result, the homeowners’ suit was not barred by the four-year statute of limitations. See OCGA § 9-3-30. We granted certiorari to consider two issues: (1) whether the Court of Appeals erred in concluding that the homeowners presented triable issues with respect to their negligence and nuisance claims against Norfolk and (2) whether the Court of Appeals erred in concluding that the homeowners presented a triable issue with respect to their nuisance claim against the City. For the reasons set forth below, we reverse.

The record shows that, in the late 1800s, Norfolk installed railroad tracks abutting property that would eventually be owned by the homeowners almost two centuries later. At some point, at least four decades ago, Norfolk also installed a culvert and a 36-inch brick drainage pipe under the tracks. At that time, the drainage culvert and pipe were adequate to drain the large 37-acre basin in which the homeowners’ property sits. The pipe and culvert have been maintained properly over the years, as the evidence shows that they are currently clean of debris, intact, and in proper working order.

The homeowners purchased and moved into their home during the summer of 1997. During heavy rains, the homeowners experienced flooding on the property and, several months after moving in, they relayed their problem to both Norfolk and the City, the latter of which had placed a connecting pipe onto Norfolk’s pipe that directed runoff to a combined sewer overflow culvert.2 Approximately six years later, on May 16, 2003, the homeowners incurred substantial property damage from the flooding of their home following a particularly heavy rain. The homeowners again contacted Norfolk and the City, but their request that Norfolk and the City fix the flooding problem was not granted. In response, the homeowners filed this action on October 28, 2004, contending that: (1) Norfolk was liable for negligence and nuisance because the drainage pipe was too small to properly handle runoff and (2) the City was liable for nuisance for failing to adequately construct and maintain the storm and drainage system in the surrounding properties, including its connection to Norfolk’s pipe.3

[415]*415With regard to the operative facts underlying the case, the parties agreed to be bound by the findings of a court-appointed special master. Among other things, the special master determined that the homeowners’ property was prone to flooding because Norfolk’s “36-inch pipe that ultimately drains the basin, in which the residence is located, is not large enough to empty that basin without creating a backup or ponding of storm water in the basin.” The special master noted, however, that the 36-inch pipe had been maintained properly over the years and that, at the time that it was installed, “this pipe was probably sized to accommodate the flow from the drainage basin as it existed many decades ago.” He further noted that, at the time that the drainage pipe was installed, the standard practice called for much smaller pipes than those installed today. In a subsequent deposition regarding his report, the special master explained this observation, stating that it was correct to presume that “[w]hen the pipe was originally constructed or installed, it dealt with the conditions that existed at the time[.] . . . The design for the pipe when it was done at that time was based on the conditions that existed at that time.” The special master further determined that the City’s connection to Norfolk’s drainage pipe did not increase the backup of water onto the homeowners’ land. Finally, the special master found that, over the decades since the drainage pipe had been installed, development of the surrounding property, which included the installation of areas impervious to water absorption, had increased the runoff flowing into the basin where the homeowners’ property rests. At his deposition regarding his report, the special master was asked: “Did your investigation reveal anything that Norfolk Southern and the City of Atlanta or, frankly, any of the other property owners in the area had done that increased the flow of surface water onto the Kleber residence?” In response, the special master indicated that he believed that the increase was due to the development of other properties, not actions by Norfolk or the City. He opined: “Over the years there have been increases to house sizes, you know, maybe driveways added, patios, whatever, you know, creating a more impervious area, thereby generating more runoff into the basin.”

1. As an initial matter, we cannot fully agree with the Court of Appeals’ determination that the type of nuisance in issue in this case is wholly continuing in nature. In making this determination, we must look both to our case law and the Restatement of Torts.4

[416]*416The classification of an alleged nuisance as continuing in nature directly controls the manner in which the statute of limitations will be applied to the underlying claim.

A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run. Where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie. This action accrues at the time of such continuance, and against it the statute of limitations runs only from the time of such accrual.

(Citations omitted.) City Council of Augusta v. Lombard, 101 Ga. 724, 727 (28 SE 994) (1897).

In City Council of Augusta v. Boyd, 70 Ga. App. 686 (29 SE2d 437) (1944), the plaintiffs filed a nuisance action against the City Council for damages caused by the City of Augusta’s improper maintenance of an open sewer drainage ditch adjacent to their property. In characterizing the nuisance as a continuing one, the Court of Appeals held:

The nuisance complained of in the instant case, the improper maintenance of the ditch, is not a permanent one, but rather one which can be abated by the city at any time, and the wrong or injury is remediable. The nuisance complained of does not consist in the mere presence of the ditch, but in the manner in which it is maintained.

Id. at 688.

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Cite This Page — Counsel Stack

Bluebook (online)
677 S.E.2d 134, 285 Ga. 413, 2009 Fulton County D. Rep. 1571, 2009 Ga. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-atlanta-v-kleber-ga-2009.