City of Roswell v. Bolton

• Decision Date: 03 November 2004
• Docket Number: No. A04A1395, No. A04A1396.
• Parties: CITY OF ROSWELL et al. v. BOLTON (Two Cases).
• Court: Georgia Court of Appeals

608 S.E.2d 659

271 Ga. App. 1

CITY OF ROSWELL et al. v. BOLTON (Two Cases).

Nos. A04A1395, A04A1396.

Court of Appeals of Georgia.

November 3, 2004.

Reconsideration Denied December 14, 2004.

William Coolidge III, Richard Carothers, Carothers & Mitchell, LLC, Buford, for Appellant.

Russell King, Dupree, Johnson, Poole & King, Marietta, Brian Dubuc, Weissman, Nowack, Curry & Wilco, PC, Woodstock, for Appellee.

ADAMS, Judge.

John Bolton filed a nuisance and inverse condemnation action against the City of Roswell and Jere Wood, in his official capacity as mayor of the City, for property damage caused by increased surface and storm water runoff. A jury awarded Bolton $259,100, itemized to include damages for diminution in property value, costs of repair, loss of peace of mind, and attorney fees.¹ The trial court also ordered injunctive relief.

In Case No. A04A1395, the City claims the trial court erred in (i) denying its motion for a directed verdict, (ii) admitting a copy of a City ordinance relating to inspection of storm water management control facilities, (iii) admitting evidence of damages arising prior to six months before Bolton's ante litem notice to the City, (iv) failing to give two requested charges to the jury, and (v) allowing a double recovery. For the reasons set forth below, we find no merit in the City's claims other than its contention that the damages awarded by the jury constituted an impermissible double recovery for costs to restore and diminution in value for the same injury. Accordingly, we affirm in part and reverse in part and remand the case for a new trial on the issue of damages. In Case No. A04A1396, the City argues that the trial court erred in granting injunctive relief because the City did not maintain a nuisance. We disagree and affirm.

Case No. A04A1395

The evidence adduced at trial shows that in 1979, Bolton purchased a house in the City. At that time there was a shallow creek located in the backyard, about 20 to 25 feet from the house, which was narrow enough to step across and shallow enough to be traversed by a bicycle. Area development in the 1980s through the early 1990s caused increased water flow in the stream, and the stream flooded in 1991 after a heavy rainfall. Shortly afterward, Bolton contacted a City engineer who came to look at his property. The City made repairs to storm water detention facilities in the Warsaw Drainage Basin, where Bolton's property was located, and the flooding situation improved significantly from 1991 until construction of the Commerce Parkway.

In 1996, the City and the Georgia Department of Transportation began construction of the Commerce Parkway upstream from Bolton's property. They began laying asphalt in 1998, and construction was completed that year. Bolton had previously contacted the City to express his concern about the effect of the Commerce Parkway on his property, but was assured the project would improve his flooding problem. However, after the commencement of construction on the Commerce Parkway the water flowing through the streambed increased to a four to five foot deep flow when it rained. The increased water flow caused erosion to the streambed and adjoining land and the loss of nine to twelve trees and numerous ferns on Bolton's property. The erosion caused the foundation of Bolton's home to settle and crack, as well as causing cracks to the brick veneer on the exterior of the house. Bolton's rear deck became unstable and had to be torn down.

The City's director of public works, Stuart Moring, testified that the City was responsible for maintaining the storm water management facilities associated with the Commerce Parkway. Moring further testified that all of the storm water runoff from the Commerce Parkway project flowed into the stream bordering Bolton's property. According to Moring, a portion of the runoff flowed into the stream without being held in the detention pond. A water detention pond held another portion of the storm water runoff from the Commerce Parkway, but Moring admitted City engineers found the detention pond located at the Commerce Parkway not to be functioning according to its design.

Moring became aware of Bolton's complaints about storm water runoff in 1998. In 1999, citing stream bank erosion, loss of topsoil, and exposed sewer lines in Warsaw Drainage Basin, Moring submitted an application on behalf of the City for federal funding for "stream bank stabilization" on properties including the Bolton property, but funding was denied. The City did not perform any stream bank stabilization work on Bolton's land.

1. The City claims the trial court erred in denying its motion for a directed verdict because Bolton failed to prove the elements of his nuisance claim. We disagree. "A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict." (Footnote omitted.) H.J. Russell & Co. v. Jones, 250 Ga.App. 28-29, 550 S.E.2d 450 (2001).

To be held liable for maintenance of a nuisance, the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and, if the municipality did not perform an act creating the dangerous condition, ... the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.

(Citations omitted.) Mayor etc. of Savannah v. Palmerio, 242 Ga. 419, 426-427(3)(i), 249 S.E.2d 224 (1978).

In this case, the jury could conclude that the City's construction of the Commerce Parkway and its failure to adequately maintain the drainage system associated with the Commerce Parkway created a condition which subjected Bolton's property to repeated flooding. The jury could also conclude the City was aware of the harmful condition, but failed to rectify it. "[W]here a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable." (Citations and emphasis omitted.) Hibbs v. City of Riverdale, 267 Ga. 337, 338, 478 S.E.2d 121 (1996).

The City argues that it was nevertheless entitled to a directed verdict under authority of City of Atlanta v. MARTA, 262 Ga. 743, 425 S.E.2d 862 (1993). The issue in that case was whether a reversible traffic signal was a nuisance. Our Supreme Court concluded that because the signal was not operating in a defective manner and met all applicable national and state traffic standards the signal did not, as a matter of law, create a continuously hazardous condition amounting to a nuisance. Id. at 746, 425 S.E.2d 862. The City points to testimony in this case indicating that the design of the detention pond associated with the Commerce Parkway met all applicable legal requirements. But even if the detention pond met all applicable standards in its design, evidence shows that the facility did not operate as designed and was discharging water at greater than the pre-development rate. This distinguishes the properly operating traffic signal considered in MARTA.

The City cites another traffic signal case, City of Bowman v. Gunnells, 243 Ga. 809, 256 S.E.2d 782 (1979), for the proposition that its degree of misfeasance must exceed that of "mere negligence" in order to subject it to a claim for continuing nuisance. Thus, the City contends, if it was merely negligent in maintaining the detention pond, it could not be held liable for nuisance. But the evidence in this case shows more than "mere negligence," including the City's maintenance of a dangerous condition over a period of time and its failure to correct the condition after knowledge thereof. See Palmerio, 242 Ga. at 426-427(3), 249 S.E.2d 224. Furthermore, the statement that "mere negligence" does not constitute a nuisance is used in Gunnells to show that a failure to repair a malfunctioning traffic device within a few hours after its malfunction, even if negligent, does not constitute the maintenance of a nuisance. Gunnells, 243 Ga. at 810(1), 256 S.E.2d 782. As our Supreme Court wrote in Gunnells, in order to show a nuisance, "[t]he defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. (A single isolated act of negligence is not sufficient to show such a negligent trespass as would constitute a nuisance.)" (Citation omitted.) Id. at 811(2), 256 S.E.2d 782. In contrast, evidence in this case showed a repetitive and continuous condition. The trial court properly denied the City's motion for a directed verdict.

2. The City claims the trial court erred in allowing Bolton to introduce Section 7.1.8(d) of the City's Code of Ordinance, which arguably required the City to establish inspection schedules for all storm water management control facilities in its jurisdiction. The City argues that the introduction of the ordinance was unfairly prejudicial because the City could not be liable for negligent inspection or failure to inspect facilities over which it had no control. See, e.g., Morris v. Douglas County Board of Health, 274 Ga. 898, 899(1), 561 S.E.2d 393 (2002) (Board of Health's single inspection of septic system not sufficient to show creation or maintenance of a nuisance).

The trial court allowed the ordinance to be introduced for purposes of impeachment. On cross-examination, Bolton questioned Moring about the ordinance's inspection requirement in connection with Moring's statement that the City did not inspect storm water detention facilities after completion other than on a "complaint basis." We conclude the trial court did not abuse its discretion in allowing the ordinance to...