DeKalb County v. Orwig
| Decision Date | 15 March 1991 |
| Docket Number | No. S90G1365,S90G1365 |
| Citation | 402 S.E.2d 513,261 Ga. 137 |
| Parties | DeKALB COUNTY, Georgia v. ORWIG. |
| Court | Georgia Supreme Court |
Albert Sidney Johnson, County Atty., Decatur, Nisbet S. Kendrick, III, Johnson & Montgomery, Atlanta, for DeKalb County.
Gail C. Flake, Decatur, for Orwig.
James F. Grubiak, Oliver R. Hunter, Assoc. County Com'rs of Georgia, Atlanta, amicus curiae.
Orwig sued DeKalb County to recover damages resulting from two instances of sewage backing up into her home. After the first back-up, DeKalb County disclaimed responsibility, noting that the sewage in its line was running smoothly and that dye put in the stream flowed past the suspected obstruction. After the second back-up, use of a video camera showed that the problem was a rod which Georgia Power had driven through the sewer line. The rod was not large enough to block the line itself, but obstructions could build up against the rod and block the whole line until enough pressure developed to clear away the obstruction. After settling her claim against Georgia Power, Orwig brought this action seeking property damages, damages for loss of peace of mind, and expenses of litigation. The trial court entered judgment on a jury verdict awarding sums for damages to real and personal property and for attorney fees. DeKalb County appealed the judgment to the Court of Appeals, asserting that it was not liable and that, in any event, attorney fees were not recoverable. The Court of Appeals rejected the county's arguments, interpreting this court's decision in Fulton County v. Wheaton, 252 Ga. 49, 310 S.E.2d 910 (1984), as broadening the scope of the damages recoverable in a suit against a county based on the maintenance of a nuisance. DeKalb County v. Orwig, 196 Ga.App. 255, 395 S.E.2d 824 (1990). We issued a writ of certiorari to consider whether a county can be liable for a nuisance which does not rise to the level of a taking of property and whether, as a matter of law, two sewer overflows constitute an actionable continuing nuisance.
1. Useful background for deciding this appeal may be gained from a reading of this court's opinion in Duffield v. DeKalb County, 242 Ga. 432(1), 249 S.E.2d 235 (1978). The conclusion reached there was that although counties are immune from suit generally,
certain nuisance suits for injunction and damages could be maintained against a county under the constitutional provisions against taking or damaging private property for public purposes. [Cit.] ... [T]he Constitution provides for a waiver of sovereign immunity where a county creates a nuisance which amounts to an inverse condemnation. [Id. at 433, 249 S.E.2d 235]
Such reasoning is the source of the holding in cases such as Fulton County v. Wheaton, supra, that the damages which may be recovered in such a suit are limited to those recoverable in a condemnation action.
The decision in Fulton County v. Wheaton, supra, is not susceptible of the interpretation made by the Court of Appeals. In its analysis, the Court of Appeals relied heavily on language quoted from City of Columbus v. Myszka, 246 Ga. 571, 272 S.E.2d 302 (1980), to the effect that a plaintiff in a case involving a continuing abatable nuisance is not limited to a recovery of rental value or market value, but may recover any special damages suffered. However, as is pointed out in Duffield v. DeKalb County, supra 242 Ga. at 434, 249 S.E.2d 235, principles relating to the liability of municipalities do not apply equally to counties. Therefore, insofar as it supports the notion that a full range of damages is available to a plaintiff in a suit against a county based on the maintenance of a nuisance, the language in Fulton County v. Wheaton quoting from City of Columbus v. Myszka is disapproved. We adhere instead to the principles plainly and correctly stated in Wheaton:
" '[W]here a county causes a nuisance to exist which amounts to a taking of property of one of its citizens for public purposes, the county is liable.' " [Cit.] ... "The damage recoverable is the decrease in market value and is governed by rules for damages in a condemnation action." [Cit.] [Id. at 50-51, 310 S.E.2d 910.]
The answer to the first question posed in this case is, therefore, no: a county cannot be liable for a nuisance which does not rise to the level of a taking of property. It follows from our holding that damages in cases such as this one cannot include such items as damages for mental distress and expenses of litigation.
2. DeKalb County argues that the only permissible basis for liability in this case is that the county maintained a continuing nuisance, and that, as a matter of law, two occurrences of sewage backing up do not constitute such a nuisance. We disagree.
In Desprint Services, Inc. v. DeKalb County, 188 Ga.App. 218(2), 372 S.E.2d 488 (1988), the Court of Appeals held that a single malfunction in the operation of a public works project was not an actionable nuisance. In Ingram v. Baldwin County, 149 Ga.App. 422, 254 S.E.2d 429 (1979), that court held that three occurrences of flooding raised a question of fact concerning whether the county had created a nuisance which amounted to a taking of the plaintiff's property. The present case falls between those two, and we look for guidance to the language used in Mayor, etc., of Savannah v. Palmerio, 242 Ga. 419, 426, 249 S.E.2d 224 (1978), to describe a nuisance:
... performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience, or injury.
The condition involved here, maintaining a sewer line with an obstruction, was continuous from the time Georgia Power first damaged the sewer line until it was repaired by DeKalb County. Since there was some evidence in the record to support a finding that DeKalb County knew or should have known after the first overflow that the obstruction was in its line, there is a question of fact whether the county was responsible for the second overflow and, thereby, for maintaining a nuisance amounting to a taking of Orwig's property. It follows that DeKalb County was not entitled to a directed verdict as to liability on that ground.
3. DeKalb County is, however, entitled to a new trial as to damages because the trial court's jury instruction on damages was inappropriate. In Fulton County v. Baranan, 240 Ga. 837(1), 242 S.E.2d 617 (1978), this court reiterated that
the measure of damages is the actual depreciation in market value of the premises resulting from the work done and the effect on the property. [Cits.]
It is clear, therefore, that Orwig is only entitled, if she is entitled to damages at all, to those damages recoverable under a theory of inverse condemnation. It should also be noted that since it is unquestioned that DeKalb County had no notice of the obstruction in its line before the first backup of sewage, the county can have no liability for damages attributable to that overflow. It is incumbent on the trial court on retrial to instruct the jury that the damages for which the county is liable, if there are any, are only those damages arising from the second overflow.
Judgment affirmed in part and reversed in part.
All the Justices concur except WELTNER, J., who concurs in part and dissents in part, and FLETCHER, J., who dissents.
In DeKalb County v. Orwig, 196 Ga.App. 255, 395 S.E.2d 824 (1990), the Court of Appeals held:
[A] county may be liable in a civil action for the maintaining of a nuisance upon the requisite proof of failure to properly maintain public works, without regard to whether such act is incidental to a taking for public purpose or...
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