Hibbs v. City of Riverdale

• Court: Georgia Court of Appeals
• Writing for the Court: RUFFIN; BEASLEY; BEASLEY
• Citation: Hibbs v. City of Riverdale, 490 S.E.2d 436, 227 Ga.App. 889 (Ga. App. 1997)
• Decision Date: 15 July 1997
• Docket Number: A95A1275,Nos. A95A1274,s. A95A1274
• Parties: , 97 FCDR 2755 HIBBS et al. v. CITY OF RIVERDALE. BROWN v. CITY OF RIVERDALE.

Page 436

490 S.E.2d 436

227 Ga.App. 889, 97 FCDR 2755

HIBBS et al. v. CITY OF RIVERDALE.

BROWN v. CITY OF RIVERDALE.

Nos. A95A1274, A95A1275.

Court of Appeals of Georgia.

July 15, 1997.

Reconsideration Denied Aug. 5, 1997.

Eidson & Associates, James A. Eidson, Hapeville, for appellants.

Foster & Foster, Larry A. Foster, Freeman, Mathis & Gary, Theodore Freeman, Donald J. Grate, Nena K. Puckett, Atlanta, for appellee.

RUFFIN, Judge.

These suits for recovery of damages caused by a flooding drainage retention pond were originally considered by this Court in Hibbs v. City of Riverdale, 219 Ga.App. 457, 465 S.E.2d 486 (1995). In that opinion, we affirmed the trial court's grant of summary judgment to the City of Riverdale ("the City") on James and Vicki Hibbs' and Cynthia Brown's separate suits for nuisance and negligence. Briefly, plaintiffs Brown and Hibbs claimed that the City was responsible in nuisance for floods which resulted from a drainage pond improperly designed or built by Hooker Homes ("Hooker"), the company which developed the subdivision where Brown and the Hibbses lived. Our earlier decision contains a more complete recitation of the facts surrounding these cases.

In Hibbs, we did not find it necessary to address whether the City had assumed responsibility for the drainage pond which caused the flooding at issue. Id. at 458, 465 S.E.2d 486. The Supreme Court granted certiorari on the nuisance issue and, in Hibbs v. City of Riverdale, 267 Ga. 337, 478 S.E.2d 121 (1996), reversed our decision. That Court held that "where a municipality negligently ... 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. [Cits.]" (Emphasis in original.) Id. at 338, 478 S.E.2d 121. The Court then remanded these cases and directed this Court to determine if any material issue of fact exists as to one issue: whether the City's "actions in regard to the storm drainage system constituted such exercise of control or acceptance so as to establish a duty on the part of the City to adequately maintain it." Id. at 339, 478 S.E.2d 121.

In making the necessary determination, we follow the dictates of Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991) and review the record de novo to determine if the evidence, and all inferences from the evidence, shows any question of material fact. If no question of fact exists, and the evidence at hand is insufficient to support an essential element of the plaintiffs' case, then summary judgment for the defendant is appropriate. Id.

As the Supreme Court noted, the City assumed no responsibility for any nuisance created by the subdivision's storm drainage systems merely because it approved the construction project. Hibbs, 267 Ga. at 338, 478 S.E.2d 121; see also Fulton County v. Wheaton, 252 Ga. 49, 50(1), 310 S.E.2d 910 (1984). The plaintiffs, however, point to other facts which, they claim, show the City "impliedly accepted" responsibility for maintaining the stormwater drainage system at issue.

The plaintiffs argue that in January 1988, Hooker recorded, and the City approved, a plat of the subdivision which showed the retention pond as an easement and dedicated "to the use of the public forever all streets, drains, easements and public places thereon shown...." We agree that this plat shows Hooker made an offer to dedicate the retention pond to the City. See Smith v. Gwinnett County, 248 Ga. 882, 885(2)(b), 286 S.E.2d 739 (1982). However, a city does not assume responsibility for a property dedicated to public use unless it has accepted that dedication, and such acceptance may be direct or implied. Id. "While working or maintaining the property by the legally constituted authority is the usual method of manifesting acceptance by the governmental entity, it is the government's exercise of dominion and control of the subject of the express offer of dedication which indicates acceptance of the dedication. [Cits.]" Teague v. City of Canton, 267 Ga. 679, 681(3), 482 S.E.2d 237 (1997). Any act by the governing authorities showing acceptance will suffice to complete the dedication. Bryant v. Kern &amp Co., 196 Ga.App. 165, 167(1), 395 S.E.2d 620 (1990).

The question of whether a municipality has accepted a dedication to public use is usually for the factfinder to decide. See Johnson & Harber Constr. Co. v. Bing, 220 Ga.App. 179, 182(2), 469 S.E.2d 697 (1996). In this case, however, missing from the record are any facts to support an inference that Riverdale exercised "dominion and control" over the property or otherwise "accepted" the dedication to public use. Although the City certainly required Hooker to build its drainage systems according to code and enforced those requirements with regular inspections, that exercise of regulatory power does not make the City responsible for maintaining the development. See Lewis v. DeKalb Co., 251 Ga. 100, 101(1), 303 S.E.2d 112 (1983), in which the Supreme Court held that the county did not assume responsibility for maintaining a culvert by requiring a contractor to use a certain type of pipe.

Plaintiffs have pointed to instances in which the City officials required Hooker to correct problems with the subdivision's drainage systems, but they have noted only one act by the City which they argue should be construed as an act of "control." After the Hibbs and Brown properties experienced flooding in 1991, Mr. Hibbs complained to the City's director of public works, who met with Mr. Hibbs and commissioned engineers to perform a study of the retention pond. The director of public works told Mr. Hibbs that he would make the problem "his number one priority," leading Hibbs to believe the City was responsible for the problem. However, the record is clear that the public works director was required to leave any decisions regarding the property to the City manager and council. The City did not take any of the corrective measures this study recommended. We do not believe the mere fact that the City investigated the problem shows it exercised any "dominion or control" over the property, especially in light of the City's need to ensure that Hooker had complied with its regulations. Neither is the City estopped by the acts and statements of its public works director, as he had no authority to bind the City. See OCGA § 45-6-5; City of Atlanta v. Black, 265 Ga. 425, 457 S.E.2d 551 (1995).

The fact that the City required Hooker to post a "maintenance bond" and corresponding letter of credit, likewise, does not show the City accepted responsibility for the subdivision's retention pond. City regulations required a one-year maintenance bond sufficient to cover one-third of the construction cost of all subdivision streets and drainage systems. This case differs from the facts of Bryant, supra, in which we found a maintenance bond requirement evidenced an intent on the part of local government to accept the street at issue. Here, the same city regulations also stated that the City would not be responsible for "any drainage outside of the right-of-way or for any drainage leading from drop inlets, catch basins, or surface drainage." Moreover, in Bryant the government itself acted to maintain the road at issue. Here, no evidence shows the City performed any maintenance on the retention pond or its related drainage systems. In this case, the requirement that a developer post a maintenance bond for the benefit of subdivision residents and the public does not create an inference that the City exercised control of the stormwater drainage systems.

The trial court properly granted summary judgment to the City because no evidence shows the City "maintained" or "controlled" the nuisance drainage system.

Judgments affirmed.

POPE, P.J., concurs.

BEASLEY,...