City of Atlanta v. Lei, No. A04A1836.

Decision Date13 April 2005
Docket NumberNo. A04A1838.,No. A04A1839.,No. A04A1836.,No. A04A1837.
Citation613 S.E.2d 131,272 Ga. App. 732
PartiesCITY OF ATLANTA v. LANDMARK ENVIRONMENTAL INDUSTRIES, INC. Landmark Environmental Industries, Inc. v. City of Atlanta. City of Atlanta v. Yardum. Yardum v. City of Atlanta.
CourtGeorgia Court of Appeals

Alston & Bird, LLP, David Meezan, Paul Kaplan, Rodney Ganske, Linda DiSantis, Kendric Smith, Atlanta, for City of Atlanta.

Eastman & Apolinsky, L.L.P., Stephen Apolinsky, Decatur, for Landmark Environmental Industries, Inc.

Drew, Eckl & Farnham, Joseph C. Chancey, Megan G. Mathews, for Yardum.

PHIPPS, Judge.

Landmark Environmental Industries, Inc. (LEI) filed a nuisance action against the City of Atlanta (City), claiming that the City had inversely condemned the business by allowing sewage to leak from its sewer line along Perry Boulevard and invade LEI's operating site, 2100 Spinks Street, NW (the Property). LEI had been leasing the Property from its owner, Ruth Yardum. Based on the contamination of her Property, Yardum filed a separate nuisance action against the City. The two lawsuits were consolidated for trial.

The jury found in favor of LEI and Yardum, awarding LEI $2,528,942.21 in damages and awarding Yardum $4,537,357.98 in damages and $250,615.82 in attorney fees. LEI then sought prejudgment interest, but was denied. The City moved for judgment notwithstanding the verdict (J.N.O.V.) in both cases. The trial court vacated Yardum's attorney fees award and denied the City's motions in all other aspects.

In Case No. A04A1836, the City appeals the judgment entered against it in favor of LEI. In Case No. A04A1837, LEI challenges the denial of its motion for prejudgment interest. In Case No. A04A1838, the City appeals the judgment entered against it in favor of Yardum. In Case No. A04A1839, Yardum challenges the vacation of her attorney fees award. In Case No. A04A1836, the evidence failed to adequately support the damages award. The judgment is therefore reversed and the case is remanded for retrial on the issue of damages only. The judgments in Case Nos. A04A1837 and A04A1838 are affirmed. In Case No. A04A1839, the evidence amply authorized an award of attorney fees, and the jury's award is therefore reinstated.

Case No. A04A1836

1. The City contends that the trial court erred in denying its motion for J.N.O.V., arguing that "[it] could not be charged with knowledge that its Perry Boulevard sewer caused the alleged contamination." On appeal from the denial of a motion for J.N.O.V., this court determines whether, construing the evidence in the light most favorable to the party who obtained the jury verdict, there is any evidence to support the jury's verdict.1

To state a claim of nuisance against a municipality, a plaintiff must establish that (1) the city's conduct was egregious enough to exceed mere negligence, (2) the resulting continuous or repetitious dangerous condition was of some duration, and (3) the city failed to correct the danger within a reasonable time after acquiring knowledge of the defect or dangerous condition.2

Construed in a light most favorably to LEI (and Yardum3), the evidence showed that the Property is comprised of 19.8 acres in Atlanta, just south of Bolton Road, in a predominantly industrial area. It is bordered by Spinks Street to the north, a wooded area to the west, a railroad line to the south, and a Georgia Power transmission line easement to the east. Perry Boulevard, which runs generally east to west, is 480 feet south and approximately 40 feet higher than the southern boundary of the Property. About 560 feet south of that boundary of the Property is a watershed divide,4 the highest terrain in the vicinity, which also runs generally east to west approximately 50 feet higher than the southern boundary of the Property. An apartment complex on Perry Boulevard is served by a sewer line that runs beneath Perry Boulevard (the "Perry Boulevard sewer"). The City owns and maintains that sewer line.

In June 1998, LEI leased the Property from Yardum for a term extending to July 2006, and it began operating its business there in August 1998. LEI had two sources of income: (1) it charged a fee for accepting onto its premises yard clippings, wood shavings, lettuce, bakery ingredient waste, and other organic materials from local companies and nearby municipalities; and (2) it mixed those materials into a soil amendment and sold that product to various companies.

Frank Thomas, LEI's owner, testified that in the summer of 1998, he saw "raw sewage feces" floating in a ravine across the street from the Property. He obtained an analysis of the liquid, which showed the presence of elevated levels of fecal coliform bacteria. Thomas notified the City's sewer department, which dispatched a crew to the area. Thomas testified that the crew did little more than state that "the sewage was buried along the Property." Although Thomas thereafter made repeated calls to the City, no City worker returned.

In January 1999, Thomas noticed that small wet spots had begun appearing on the Property. The next month, a City council member contacted him about complaints of an odor emitting from LEI's area. Thomas informed the council member about the ravine matter and asked her to come to the site. She did not; however, her office subsequently referred those who complained about the odor directly to LEI.

Thereafter flooded with telephone calls, Thomas contacted the Environmental Protection Division of the Georgia Department of Natural Resources (EPD). A representative made several visits to the Property and took samples. In March, several EPD representatives met a City sewer department employee at the Property. After seeing the liquid in the ravine, the City employee concluded that its color was due to tannin from leaves. In April 1999, a City crew made an unannounced visit to the Property, but only searched for sewer lines. In May 1999, EPD representatives observed an accumulation of "black septic material" at the Property. By June, Thomas testified, the Property had an "upswelling through the ground of a black liquid, smelled like sewage."

One day in June, the City's solid waste disposal operational manager happened upon the Property while in the area investigating the continuous odor complaints. He testified, "I showed up. I told them I was there to investigate an odor, and then [Thomas] immediately took me [to a manhole across the street]. So, I, I inferred from that, that they thought that was the source of the odor." After several visits to the Property, however, he concluded that the odor was caused by certain materials that LEI was stockpiling at the Property.

On June 21, 1999, the City performed sampling and testing at three locations on the Property. Results showed levels of fecal coliform bacteria in excess of safety limits. Testifying about other efforts by the City, Thomas recalled that on a daily basis during that month, City employees "just would drive up the driveway [of the Property] and turn around and drive right back out."

Meanwhile, Thomas hired a geologist, Gary Simpson, who in mid-June went to the Property to investigate what Thomas believed to be raw sewage contamination. Simpson observed a "black, foul smelling liquid on the ground surface." His samplings at the Property revealed levels of fecal coliform bacteria. In July, having investigated the topography of the area, he and Thomas met with the City's chief operating officer, its engineering and environmental director, and its deputy administrator concerning the condition of the Property. They presented their findings, told the officials that the City's sewer lines in the area of the Property were likely causing raw sewage outbreaks, and asked for the City's assistance. According to Simpson, the officials yawned, labeled the theory highly speculative, and stated that they would take the matter into consideration.

A few days later, Thomas and Simpson presented the matter to EPD officials. By then, Thomas testified, raw sewage was on the ground throughout the Property and throughout the acreage across Spinks Street. On July 21, an environmental specialist with the EPD inspected the Property and found it so saturated that one could not walk across it "without sinking up to your knees." He determined that the nature of the problem appeared to be a "seepage of liquid of unknown source out of the ground on the LEI property." The environmental specialist testified that the contamination "had been going on for sometime. There had been a lot of investigation, but at that point didn't seem to be a whole lot of action taken resulting from the prior testing ... fecal coliform certainly suggested there was a possibility of a problem with the sewage in the area." Thereafter, the EPD focused on the City's sewer lines.

On July 23, the EPD issued an emergency order to the City stating that the situation on the Property was an emergency condition that needed to be addressed immediately. The order directed the City to conduct a survey of all sewer lines and manholes within a 1.5 mile radius of the emergency condition to determine the source of the malodorous septic black material. The City commissioned a contractor to perform a closed circuit television inspection of only the sewers that the City believed had "the potential of attributing to the problem occurring at [the Property]." Such inspection did include the Perry Boulevard sewer. As stipulated by the parties, "the inspection revealed that the sewer system in the area of the Property contained numerous cracks, openings and separations." The contractor concluded, however, that the City's sewer system was not contributing to the problems on the Property. The City submitted that conclusion to the EPD. The EPD responded to the City that it had failed to comply fully with the...

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    • United States
    • United States Court of Appeals (Georgia)
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  • Local Government Law - R. Perry Sentell, Jr.
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