McElmurray v. Augusta-Richmond County

CourtSupreme Court of Georgia
Citation618 S.E.2d 59
Docket NumberNo. A05A0262.,A05A0262.
Decision Date11 July 2005

F. Hallman, Richard Decker, Decker, Hallman, Barber & Briggs, P.C., Atlanta, for Appellant.

James Ellison, Burnside, Wall, Daniel & Ellison, Robert Sentell, Kilpatrick Stockton LLP, Augusta, Carol Geiger, McKenna Long & Aldridge, Atlanta, for Appellee.

PHIPPS, Judge.

Through their family corporation, the McElmurrays own and operate a dairy and crop farming business in Richmond County. In February 2001, they brought this suit against Augusta-Richmond County, successor by consolidation to the City of Augusta, complaining that from 1979 until 1990 they had permitted the city to use their farm land as a disposal site for sewage sludge generated at the city's Messerly wastewater treatment plant based on misrepresentations by the city that the sludge constituted a safe and beneficial fertilizer. The McElmurrays claim that the sludge contained metals and toxic constituents at concentrations high enough to be classified as hazardous waste in violation of state and federal environmental laws, and that application of the sludge damaged their crop lands and killed their cows.

In their multicount complaint, the McElmurrays sought recovery of damages on theories of inverse condemnation, breach of contract, fraud, strict tort liability, negligence, products liability, nuisance, trespass, conversion, and violation of the Georgia Hazardous Site Response Act (HSRA).1 The trial court dismissed the inverse condemnation count for failure to state a claim for relief, awarded summary judgment to Augusta-Richmond County on the breach of contract count, and dismissed the remaining counts on the ground of sovereign immunity. For reasons which follow, we affirm in part and reverse in part.

In the late 1970s, the city developed a land application program as a means of disposing of sewage sludge from the Messerly treatment plant onto private farm land. The city contacted farmers, including the McElmurrays, to promote application of sewage sludge as a fertilizer. Beginning in 1979, the McElmurrays entered into a series of agreements under which they granted the city temporary licenses and easements for the spreading of sewage sludge upon described tracts of land. The city applied millions of gallons of sewage sludge on certain of the McElmurrays' fields beginning in 1979. Under the agreements, the city agreed to monitor sludge applications by testing the sludge for heavy metals and other constituents on a monthly basis and by recording the amount of sludge and levels of constituents applied to each field. In the late 1980s, the McElmurrays began experiencing significant problems with crop growth and production on their lands. Also, the McElmurrays' dairy cattle developed an immune system deficiency and, according to the McElmurrays, began dying in excessive numbers. As a result, the McElmurrays ceased participation in the land application program in 1990.

In their complaint, the McElmurrays alleged that from reviewing documents produced by the city in 1998 and 1999 during the pendency of federal litigation between the parties, they discovered that the city had concealed high concentrations of metals in sludge applications, and had misrepresented the quantity and quality of sludge applied to their lands in reports to them and to state environmental authorities. The McElmurrays further alleged that the city had let the sewage sludge become contaminated by allowing industrial wastes to be dumped into the sewer system.

In September 2001, the court entered an order dismissing the McElmurrays' claims against the city for inverse condemnation and for the various torts. As to the McElmurrays' inverse condemnation claim, the trial court was persuaded by the decision of the United States Claims Court in Janowsky v. United States,2 and by a comparison of Supreme Court of Georgia and Court of Appeals' decisions in Knight v. Dept. of Transp.3 and Bray v. Houston County4 with the Georgia Court of Appeals' decision in Shealy v. Unified Govt. of Athens-Clarke County,5 that an inverse condemnation claim does not lie where, as here, a property owner consents to the action of the government that resulted in the alleged taking or damaging of the property.

The trial court ruled that the McElmurrays' tort claims are barred by the doctrine of sovereign immunity. In so ruling, the court rejected the McElmurrays' argument that the city had waived sovereign immunity under OCGA § 33-24-51 by purchasing liability insurance arising from its use or operation of the motor vehicles used to apply the sewage sludge to the McElmurrays' lands. Finding this case more analogous to Harry v. Glynn County6 and Saylor v. Troup County7 (the cases relied on by Augusta-Richmond County), than to Mitchell v. City of St. Marys8 and Crider v. Zurich Ins. Co.9 (the cases relied on by the McElmurrays), the court concluded that any damages to the McElmurrays' lands by application of the sewage sludge had not arisen from motor vehicle use by the city. In reliance on Donaldson v. Dept. of Transp.,10 Bontwell v. Dept. of Corrections,11 and Dept. of Corrections v. Lamaine,12 the court also found this action to be barred by sovereign immunity because it was not filed until after the effective date of the 1991 state constitutional amendment eliminating the insurance waiver of sovereign immunity.

By order entered in January 2002, the trial court dismissed the McElmurrays' claim under the Georgia HSRA on the ground that the HSRA does not provide for a waiver of sovereign immunity. And the court awarded summary judgment to the county on the McElmurrays' breach of contract claim by order entered in February 2004, finding that this claim is barred by the applicable statute of limitation and by an indemnification and hold harmless clause in the parties' agreements; that the evidence is insufficient, as a matter of law, to establish the requisite causation between the city's alleged breaches of contract and the McElmurrays' injuries and damages; and that the McElmurrays' damage calculations are too speculative to support a recovery.

1. The McElmurrays contend that the trial court erred in dismissing their inverse condemnation claim. There is no merit in this contention.

In Janowsky, the United States Claims Court, in reliance on a long line of federal precedent, sanctioned "the drawing of a bright line between voluntary dealings between a citizen and the government involving property and government takings of property in the constitutional sense."13 "Simply put,"14 the court concluded that part of the Fifth Amendment prohibiting the taking of private property for public use without just compensation "was not meant to protect property owners in their voluntary dealings with the government."15 Janowsky broadly held that

there is never a taking of private property for public use within the meaning of the Fifth Amendment when the property owner agrees to allow his property to be used by the government. If the plaintiff and the government have a contract, then all rights and remedies pertaining to the subject matter of the contract should be governed by contract principles.16

Georgia law is in accord. In Barwick v. Roberts,17 the plaintiff filed a petition alleging that he had leased property from certain landowners for the purpose of developing a farmer's market and then assigned the leases to the Georgia commissioner of agriculture, while retaining title to any improvements made on the property. The plaintiff complained that the commissioner's successor had deprived him of his rights in the improvements. Our Supreme Court held that,

the petition does not disclose that any of the plaintiff's property has been wrongfully and forcibly taken from him, and in like manner seized and occupied by any of the defendants, but on the contrary that the entry was by his express consent; and for this reason, if for none other, no case is made for application . . . of . . . the provision found in art. 1, sec. 3, par. 1, of the Georgia constitution . . ., which declares that "Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being paid first."18

The rule announced in Roberts was followed in Bray.19 In Shealy,20 we did recognize that an inverse condemnation action may be brought against a county for contamination to property caused by the escape of toxic or hazardous substances from a landfill if the contamination amounted to the taking of property without just compensation. But in Shealy, unlike the present case, the property owners had not consented to the defendant's release of the substances onto their property. Where, as here, the property owners have consented to the government action, a suit for inverse condemnation does not provide them with a remedy. The court did not err in dismissing that count of the McElmurrays' complaint.21

2. The McElmurrays contend that the trial court erred in dismissing their tort claims on the ground of sovereign immunity. We agree.

(a) Under a local Act of the General Assembly, the consolidated government of Augusta-Richmond County is to be treated as a county for tort liability purposes.22 Both our Supreme Court and this court have recognized the validity of legislative enactments such as this.23 A county is not liable to suit for any cause of action unless made so by statute.24 As enacted in 1983, Article I, Section II, Paragraph IX of the Georgia Constitution waived sovereign immunity in actions for the recovery of damages against the state or any of its departments and agencies to the extent that liability insurance was provided.25 Toombs County v. O'Neal26 held that, for purposes of the above-cited constitutional provision, a county was included within the definition of "the [s]tate or any of its departments and agencies."27 But in 1991 this...

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    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
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    ...Ga.App. 322, 327(2), 730 S.E.2d 685 (2012)(punctuation omitted); accord McElmurray v. Augusta–Richmond County,274 Ga.App. 605, 615(4)(a), 618 S.E.2d 59 (2005).17 See Allmond,314 Ga.App. at 231(1), 723 S.E.2d 691(holding that statutes of limitation for breach-of-contract and fraud claims reg......
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