Hoffman v. Atlanta Gas Light Co.

• Decision Date: 24 November 1992
• Docket Number: No. A92A1352,A92A1352
• Parties: HOFFMAN et al. v. ATLANTA GAS LIGHT COMPANY et al.
• Court: Georgia Court of Appeals

Page 387

426 S.E.2d 387

206 Ga.App. 727

HOFFMAN et al. v. ATLANTA GAS LIGHT COMPANY et al.

No. A92A1352.

Court of Appeals of Georgia.

Decided Nov. 24, 1992.

Reconsideration Denied Dec. 15, 1992.

Certiorari Denied April 8

and May 3, 1993.

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, Atlanta, for appellants.

Long, Aldridge & Norman, Edward A. Kazmarek, Carol R. Geiger, Mary D. Peters, Hunton & Williams, Kurtis A. Powell, Edward T. Floyd, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

Appellants Peter F. Hoffman et al. own property in Troup County on which a predecessor gave an easement and right-of-way to Plantation Pipeline Company (Plantation). From 1941 to 1970, Plantation installed a four-inch pipeline extending from Macon to LaGrange for transportation of petroleum products. This pipeline by virtue of the easement goes through appellants' property. Appellants bought this property in April 1984. This suit was filed alleging that from 1954 to 1956, four leaks occurred, spilling about 1,000 barrels (42,000 gallons) of petroleum products into the soil and groundwater of this property; the contamination on the property is gasoline, kerosene or other products. In December 1970, Plantation sold and assigned the pipeline and easement rights to Atlanta Gas Light Company. Appellants say Plantation admits the presence of hazardous chemicals in the spills; that it is undisputed that the contamination can be removed; and that it is undisputed that as the contamination migrates outward from the pipeline, the expense of removing the contamination increases.

Plantation and Atlanta Gas Light contend they were informed by appellants of the contamination in 1988. In March 1990, appellants formally demanded that Plantation and Atlanta Gas Light remove the contamination from the property, but this demand was refused and suit was filed August 29, 1990, alleging inter alia that Atlanta Gas Light conducted tests in 1981 which revealed holes in the pipeline but never informed appellants, that the leaks were discovered in 1988 when prospective purchasers conducted environmental tests, and that the contaminants continue to spread throughout the property so that it is unmarketable because of hydrocarbon contamination. Appellants in Count I sought an injunction against the present owner of the pipeline, Atlanta Gas Light; they alleged creation and maintenance of nuisance against Plantation and Atlanta Gas Light (Count II); they alleged trespass against Plantation on account of the presence of Plantation's contaminants (Count III); they alleged breach of an instrument under seal by both defendants (Counts IV and V); they alleged fraud of both defendants for failure to reveal the leaks and contamination to appellants (Count VI and VII); and they sought punitive damages against both defendants for knowing and wilful failure to maintain the pipeline and to remove contamination after demand.

The trial court granted summary judgment to defendants on all counts, hence this appeal. Held:

1. " 'Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56(c).' [Cit.] '(t)he evidence must be construed most strongly against the movant, and the party opposing the motion is entitled to all inferences that may fairly and reasonably be drawn in support of his case.' " (Emphasis supplied.) Southern States Landfill v. Walton County, 259 Ga. 673, 674-675, 386 S.E.2d 358. " 'On motion for summary judgment, the burden of showing the absence of any genuine issue of material fact rests upon movant, and the party opposing the motion is given the benefit of all reasonable doubts and favorable inferences that may be drawn from the proof offered.' " Ingram v. JIK Realty Co., 199 Ga.App. 335, 336, 404 S.E.2d 802. The burden of establishing the non-existence of any genuine issue of fact is upon Plantation and Atlanta Gas Light as movants for summary judgment, and all doubts are resolved against them. Grossberg v. Judson Gilmore Assoc., 196 Ga.App. 107, 109, 395 S.E.2d 592.

To prevail on a motion for summary judgment, defendants Plantation and Atlanta Gas Light must pierce the allegations of appellants' complaint and establish as a matter of law that appellants could not recover under any theory fairly drawn from the pleadings and the evidence. Proctor & Gamble Paper Products Co. v. Yeargin Constr. Co., 196 Ga.App. 216, 217-218, 396 S.E.2d 38. The grant of summary judgment operates, at the instance of the trial court, to remove from the jury an issue or all the issues, as the case may be, and it removes from the parties the right to have the issues determined by a jury; therefore, the ruling of the trial court granting summary judgment is not afforded any presumption of correctness or any more favorable interpretation of the evidence or the law. The rules applying to rulings on motion for summary judgment are not indulged with a view to sustain the ruling of the trial court. Rather, on appeals from grants of summary judgment, it is this court's function to examine the record and determine whether the allegations of the pleadings have been pierced so that no genuine issue of material fact remains (Lewis v. Rickenbaker, 174 Ga.App. 371, 330 S.E.2d 140) and if the record does not support a conclusion not only that no genuine issue of material fact remains but also that the movant is entitled to judgment as a matter of law, the judgment must be reversed for trial. Id.; OCGA § 9-11-56(c).

Plantation Pipeline contends the statute of limitation governing the trespass and nuisance claims expired in 1960, four years after the last leak from the pipeline relative to appellants' property; that the alleged contamination does not constitute a continuing nuisance or trespass; that Plantation transferred its easement rights and obligations to Atlanta Gas Light in 1970 and has had no legal interest or control over the pipeline as to that property since that time; that any claims arising as a result of leaks from the pipeline were barred by the time appellants bought the property in 1984; and that Plantation did not breach the easement agreement but fulfilled all its duties thereunder. Plantation shows that when it transferred its interests to Atlanta Gas Light in 1970, all petroleum products were purged from the pipeline and it was filled with water and rust inhibitor as was the practice, and no leaks were evident during Atlanta Gas Light's ownership of it, inasmuch as no leaks occurred after 1956. Plantation asserts appellants confuse continuous or regularly repetitious acts or conditions (leaks) with the hurt, inconvenience or injury (contamination), and that appellants fail to realize the distinction between past and completed acts and continuing and recurrent acts. In other words, Plantation says appellants confuse the "acts" with the "results," and that the last "acts" (leaks) occurred in 1956.

Appellants allege that four leaks formed in the pipeline from 1954 to 1956, and that although the leaks were repaired the contamination is continuing and although it could be abated by defendants, it remains unabated. Appellants insist that it is not the pipeline or the leaks which constitute a nuisance and continuing trespass, but the hydrocarbon contamination. The reasonable inference drawn in favor of appellants, as respondents to motion for summary judgment, is that Plantation fixed the leaks but failed to remove the contamination which has exuded and continues to exude throughout the property.

We conclude it is the appellees who are confused as to what the nuisance is in this case. The old holes in this pipeline are not the nuisance; the nuisance is the continuing exudation and leaching of chemicals into the ground from the contaminants deposited long ago through the leaks.

The question in this case does not revolve around what day the holes appeared in the pipe or what day they were fixed. The question is whether the contaminating hydrocarbon pollution which began in 1956 is a continuing nuisance or a permanent nuisance. Appellees contend this is a "completed act" and it is too late for appellants to get redress. But, appellants say the contamination is spreading. If that is so, the contamination is not a "completed act." According to the Supreme Court in Goble v....