Fielder v. RICE CONST. CO., INC.

• Decision Date: 15 July 1999
• Docket Number: No. A99A0337.,A99A0337.
• Citation: 239 Ga. App. 362,522 S.E.2d 13
• Parties: FIELDER et al. v. RICE CONSTRUCTION COMPANY, INC. et al.
• Court: Georgia Court of Appeals

522 S.E.2d 13

239 Ga. App. 362

FIELDER et al. v. RICE CONSTRUCTION COMPANY, INC. et al.

No. A99A0337.

Court of Appeals of Georgia.

July 15, 1999.

Reconsideration Denied July 29, 1999.

Certiorari Denied November 19, 1999.

Fricks, Dell & Lee, Robert A. Fricks, James E. Lee II, Macon, for appellants.

Sell & Melton, Jeffrey B. Hanson, Macon, for appellees.

ELDRIDGE, Judge.

In December 1991, Napoleon and Belinda Fielder, plaintiffs-appellants ("Fielder"), moved into a home located at 119 Knotts Landing, Macon, Bibb County. On January 10, 1992, Fielder closed on the purchase of 119 Knotts Landing from the defendants, developer-builder Ronnie W. Rice, individually and d/b/a Ronnie Rice Construction Company, and his corporation, Rice Construction Company, Inc.

Fielder owned the lot and septic system. Sometime in 1992, ground water began to cause problems with the septic field percolation. From the time of purchase until Fielder was evicted from the property, the soil composition would not allow sufficient percolation for the septic tank and the percolation field to properly percolate. This caused raw sewage to constantly seep to the surface area around the property.

Fielder contacted Rice and Rice Construction Company, Inc. about the problem of percolation. Rice tried to solve the problem by installing a French drain to improve the ground water situation. The French drain interfered with the proper operation of the septic system because it drew in both ground water and sewage percolating in the soil, which resulted in the discharge of sewage from the French drain outlet.

In February 1993, Fielder contacted the Macon-Bibb County Health Department, defendant-appellee ("Health Department"), and the Health Department oversaw and participated in several unsuccessful attempts to fix the septic system, including digging an open ditch to allow for ground water runoff. A wet spot was discovered at the end of the bleeder lines, which created problems at the distribution box and inside the house. The Health Department recommended that a pit be installed at the end of the bleeder lines, and Rice installed it. Subsequently, Rice made further alterations to the septic system without the knowledge, approval, or permit from the Health Department After the expiration of the Builder's Warranties, the Health Department began to issue Fielder citations for violating the health code.

As a consequence of Fielder's failure to take any action to remedy the system despite repeated directives to do so, the Health Department took action against Fielder. Finally, just before Christmas, the Health Department caused Fielder to be evicted from the premises.

The Health Department had as one of its functions the inspection and testing of soil and terrain in an area of new development to determine the suitability of such land for septic fields both as to percolation in the soil, as well as ground water that would prevent percolation. The genesis of Fielder's septic problems was the failure of the Health Department to properly carry out this function.

On or about August 22, 1986, Robert A. Liek, a registered land surveyor, examined various lots in the South Fork subdivision. After such examination, Jim Taylor, a supervisor for the Health Department, gave an unsatisfactory grade to the lots tested, which included 119 Knotts Landing. Taylor instructed Rice, the developer, to improve the percolation to a satisfactory level through necessary but costly measures, in time and money, in order to receive Health Department approval.

Rice strongly disagreed with Taylor and filed a complaint against him with the Health Department, causing his removal from Rice's developments, including South Fork. Then the Health Department assigned a new engineer to re-test the soil percolation, and he provided an acceptable test sample. This allowed the Health Department to approve Rice's plans for septic use and allowed Rice to build 119 Knotts Landing with a septic tank system without having to install the costly improvements.

On April 17, 1998, as a consequence of the problems, Fielder sued the defendants in a renewal action. The Health Department was sued for negligence and nuisance in creating, continuing, and maintaining such nuisance conditions. The Health Department answered and moved for summary judgment. After conducting a hearing, the trial court entered summary judgment for the Health Department, and Fielder appealed.

1. Fielder contends that the trial court erred in granting summary judgment to the Health Department on his nuisance claim. We agree.

Where 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. DeKalb County v. Orwig, 261 Ga. 137, 138(1), 402 S.E.2d 513 (1991); Fulton County v. Wheaton, 252 Ga. 49, 50(1), 310 S.E.2d 910 (1984), overruled on other grounds, DeKalb County v. Orwig, supra; City of Columbus v. Myszka, 246 Ga. 571, 572(1), 272 S.E.2d 302 (1980), overruled on other grounds, DeKalb County v. Orwig, supra; Duffield v. DeKalb County, 242 Ga. 432, 433(1), 249 S.E.2d 235 (1978). The reason sovereign immunity is not applicable when a nuisance amounts to a taking of property of one of its citizens for public purposes is that inverse condemnation is a form of eminent domain. Ga. Const. of 1983, Art. I, Sec. III, Par. I; Miree v. United States, 242 Ga. 126, 134(2), 249 S.E.2d 573 (1978); Woodside v. Fulton County, 223 Ga. 316, 319-321(1), 155 S.E.2d 404 (1967).

However, liability of a [county] cannot arise solely from its approval of construction projects which increase surface water runoff. Rather, it is the county's failure to maintain properly the [property], resulting in a nuisance, which creates its liability. Cf. City of Columbus v. Myszka, [supra at 572, 272 S.E.2d 302].

(Emphasis in original.) Fulton County v. Wheaton, supra at 50(1), 310 S.E.2d 910; see also Hibbs v. City of Riverdale, 267 Ga. 337, 338, 478 S.E.2d 121 (1996).

In this case, the Health Department not only approved the lot for septic tank use but set aside requirements of its own office that would have prevented the problem. Thus, prior to the approval the Health Department, knew of the probable potential problem but yielded to pressure to allow substandard septic tank conditions to be approved nonetheless. Then, when Fielder put the Health Department on actual notice that the approved septic field was failing, the Health Department failed and refused to require Rice to take the appropriate steps necessary to abate the nuisance, but instead, ordered and permitted inadequate corrective measures that maintained the unabated nuisance. The Health Department exercised its control by removing Fielder from the premises when Rice could no longer be compelled under the warranty to correct the nuisance. Such facts raise a jury question whether such acts and omissions constituted maintaining a nuisance by the Health Department.

The Health Department contends that its conduct, while negligent, does not come within the meaning of a nuisance, because it does not own or control the Fielder property. While ownership of property generally may give rise to a nuisance when property is used to cause harm to others, such ownership is not an essential element of the cause of action for nuisance.

The common law and the Restatement of Torts restrict the action for private nuisance to invasions of interest in the use and enjoyment of land, including interest in the use and enjoyment of easements and profits, but where there is an invasion of these interests the plaintiff may recover... for harm arising from acts which affect the land itself.

Cox v. DeJarnette, 104 Ga.App. 664, 675(2), 123 S.E.2d 16 (1961). When a governmental entity causes, continues, or maintains a nuisance, property that can be harmed by a nuisance "means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from the use. [Cit.]" (Punctuation and emphasis omitted.) Duffield v. DeKalb County, supra at 433-434, 249 S.E.2d 235. "`There is general agreement that [nuisance] is incapable of any exact or comprehensive definition.' [Cit.]" Cox v. DeJarnette, supra at 674(2), 123 S.E.2d 16. "A nuisance is anything that causes hurt, inconvenience, or damage to another." OCGA § 41-1-1; State of Ga. v. Ball Investment Co., 191 Ga. 382, 389(2), 12 S.E.2d 574 (1940).

Occasionally, the defendant may act from a malicious desire to so harm for its own sake, but more often the situation involving a private nuisance is one where the invasion is intentional merely in the sense that the defendant has created or continued the interference with full knowledge that the harm to the plaintiff's interests are occurring or are substantially certain to follow.... If the interference is unreasonable, it is tortious and subjects him to liability.... Private property cannot be physically harmed or its value impaired in this way, however socially desirable the conduct without payment being made for the harm done, if the interference that is the consequence of the activity is substantial and considered to be unreasonable.

Prosser & Keaton on the Law of Torts, (5th ed.), § 87, pp. 624-625; see also McLendon & Cox v. Roberts, 197 Ga.App. 478, 398 S.E.2d 579 (1990); City of Macon v. Cannon, 89 Ga.App. 484, 492(3), 79 S.E.2d 816 (1954). 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. See Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 424(2), 249 S.E.2d 224 (1978); Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 838, 165 S.E.2d 141 (1968); Thomoson v. Sammon, 174 Ga. 751, 757, 164 S.E. 45 (1932); Brimberry v. Savannah, Fla. &c. R. Co., 78 Ga. 641, 644-646, 3 S.E. 274 (1887)....