Greenwald v. Kersh

• Decision Date: 16 January 2004
• Docket Number: No. A03A1954.,A03A1954.
• Citation: 593 S.E.2d 381,265 Ga. App. 196
• Parties: GREENWALD et al. v. KERSH et al.
• Court: Georgia Court of Appeals

593 S.E.2d 381

265 Ga. App. 196

GREENWALD et al. v. KERSH et al.

No. A03A1954.

Court of Appeals of Georgia.

January 16, 2004.

Cornelison & Van Gelderen, Leon A. Van Gelderen, Roy A. Banerjee, Francis C. Schenck, Atlanta, for appellants.

Arnall, Golden & Gregory, James A. Gober, Hawkins & Parnell, Warner S. Fox, Atlanta, Berlon & Timmel, James T. Perry, David R. Perry, Duluth, for appellees.

ANDREWS, Presiding Judge.

Gary Greenwald and Denise Greenwald sued their neighbors, Martin Kersh and Jill Kersh, for trespass. The complaint alleged that the grading of and deposit of dirt onto the Kershes' property had altered the flow of surface water from the Kershes' land and caused the Greenwalds' property to flood. The Kershes filed an answer denying the Greenwalds' claims, and counterclaimed for intentional infliction of emotional distress and loss of consortium. The Greenwalds amended their complaint to add First Magnolia Homes, Inc. and Frank Burns, builders of the Kershes' home, as additional parties, and to seek damages for nuisance. The Greenwalds filed an additional amended complaint requesting equitable relief under the covenants of the Sugarloaf Country Club subdivision. The Kershes moved for summary judgment on the Greenwalds' claims. The trial court granted the Kershes' motion, and the Greenwalds appeal. We reverse for the reasons set forth below.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56(c); Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). A defendant carries this burden by demonstrating the absence of evidence as to one essential element of the plaintiff's case. Should the defendant do so, the plaintiff "cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue." Id. Our review is de novo. Walker v. Virtual Packaging, 229 Ga.App. 124, 493 S.E.2d 551 (1997).

The evidence, viewed most favorably to the Greenwalds, shows that the Greenwalds and Kershes own adjacent lots in the Sugarloaf Country Club subdivision in Gwinnett County. The Kershes contracted with First Magnolia to construct a house on their property. Before the construction, surface water on the Greenwald property drained downhill onto the Kershes' lot and another adjacent lot. In the course of construction of an elevated driveway and a pool, and in landscaping the Kershes' property, a large amount of dirt was placed on and near the property line between the Kershes' property and the Greenwalds' property. The dirt caused surface water which had naturally run down onto the Kershes' lot from other property to be diverted onto the Greenwalds' property, flooding it. Although the Greenwalds made a written demand for correction of the nuisance, the Kershes denied that they had any responsibility for remedying the nuisance.

1. For purposes of their motion for summary judgment only, the Kershes admit that a nuisance exists and a trespass occurred. "Although property must accept the natural runoff of water from neighboring lands, an artificial increase or concentration of water discharge may give rise to a cause of action." Baumann v. Snider, 243 Ga. App., 526, 527(1), n. 3, 532 S.E.2d 468 (2000).

The issue is whether the Kershes may be held responsible for the nuisance and trespass. The Kershes contend that they are entitled to summary judgment because they did not control or direct the construction work leading to the creation of the nuisance. The Greenwalds argue that the Kershes may be held liable for the nuisance because issues of material fact remain as to whether the Kershes ratified the work of their contractor, maintained the nuisance, and violated the restrictive covenants applicable to their property. We agree with the Greenwalds.

Independent Contractor. The Kershes are not necessarily responsible for the alleged nuisance because they are the property owners. "Under Georgia law, in order to be held liable for nuisance, 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. The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance." (Citation and punctuation omitted.) Sumitomo Corp. of America v. Deal, 256 Ga.App. 703, 707(2), 569 S.E.2d 608 (2002). The Kershes contend that any injury suffered by the Greenwalds was caused solely by the Kershes' independent contractor, First Magnolia, and they are not liable to the Greenwalds for those acts. "An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer." OCGA § 51-2-4.

Where the independent contractor, and not the owner, is "responsible for all construction, means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the contract," then an employee injured on the construction site cannot hold the owner liable for the negligence of the independent contractor, so long as the owner has not assumed responsibility for the manner in which the work was done. Modlin v. Swift Textiles, 180 Ga.App. 726, 729(1), 350 S.E.2d 273 (1986). The Kershes try to extend Modlin and a number of other factually inapplicable decisions to the case at bar by showing they had no responsibility for the manner in which work was done on their property. See, e.g., Grey v. Milliken & Co., 245 Ga.App. 804, 539 S.E.2d 186 (2000) (plaintiff injured on construction site owned by defendant but controlled by independent contractor). The Kershes show they entered into a contract under which First Magnolia agreed to construct their home so that it was ready to be occupied, and that the Kershes were not required to perform any work or furnish any material or labor for the project. Evidence also shows that the Kershes made no decisions with regard to the elevation and grading of their property or the decision to use fill dirt. According to Burns, First Magnolia was "responsible for that project from beginning to end." Martin Kersh deposed that "[A] house was built for us and a pool was built for us. And whatever those people had to do to build that house and to build the pool they did."

The flaw in the Kershes' position is that there is evidence that they accepted the work of the independent contractor and were on notice that the work constituted a nuisance. OCGA § 51-2-5(6) provides: "An employer is liable for the negligence of a contractor:... (6) If the employer ratifies the unauthorized wrong of the independent contractor."

In Louisville &c., R. Co. v. Hughes, 143 Ga. 206, 84 S.E. 451 (1915), the plaintiff sought to recover damages caused by, among other things, the diversion of a stream onto the lands of the plaintiff, but evidence at trial showed that the alleged tortious acts were committed in large part by an independent contractor. In considering the principles appropriate for jury instructions, our Supreme Court noted, in connection with the injuries caused by interference with the flow of water,

if the defendant accepted the work so constructed by the independent contractor as to amount to a nuisance, the defendant became at once responsible for the existence of the nuisance, under a rule very similar to that which makes a principal responsible for unauthorized wrongs committed by his agent by ratifying them.

Id. at 207, 84 S.E. 451.

Chipley v. Beeler, 122 Ga.App. 781, 178 S.E.2d 767 (1970), involved the construction of a driveway which interfered with the natural runoff of surface water from appellant's land. The appellant contended that the trial court erred in denying his motion for a directed verdict because the driveway had been constructed by Madison County, an independent contractor and not his agent. Relying on Hughes, we held that "[w]hether or not the county was an independent contractor, the evidence discloses that the county's work was accepted by the appellant who did thereby ratify the tortious act that was committed." Id. at 782(1), 178 S.E.2d 767. Similarly, evidence shows that First Magnolia's work, and the consequences thereof, was accepted by the Kershes, who moved into their home and used the property, including the pool, driveway, and associated grading. "Ratification of the wrongful act may result from acceptance of the work on the theory that acceptance shifts the responsibility for maintaining the work in its defective condition to the employer." (Citations and punctuation omitted.) Wilmock, Inc. v. French, 185 Ga.App. 259, 261, 363 S.E.2d 789 (1987).

The general rule is that ratification of the act of the independent contractor also requires knowledge of the act. Wilmock, Inc., supra, 185 Ga.App. at 261,363 S.E.2d 789; see Toys `R' Us v. Atlanta Economic Dev. Corp., 195 Ga.App. 195, 197(1), 393 S.E.2d 44 (1990). The Kershes contend that they had no knowledge concerning the grading of their property or the placement of dirt by their independent contractor which caused the harm to the Greenwalds. However, ratification in this case would not require knowledge of the specific wrongful acts of the independent contractor, see Jones v. Ceniza, 257 Ga.App. 806, 572 S.E.2d 362 (2002) (owner was on notice of problem of his independent contractors trespass onto neighboring land to cut timber but did nothing to stop it), but acceptance of the independent contractor's work and knowledge of the nuisance. As Hughes provides, the property owner's liability lies in acceptance of "the work so constructed by the independent contractor as to amount to a nuisance." Hughes, supra, 143 Ga. at 207, 84 S.E. 451.

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