Oglethorpe Power Corp.. v. Forrister

Decision Date13 June 2011
Docket NumberNo. S10G1244.,S10G1244.
Citation289 Ga. 331,711 S.E.2d 641
PartiesOGLETHORPE POWER CORPORATION et al.v.FORRISTER et al.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Natalie M.C. Beasman, Balch & Bingham LLP, Atlanta, Gregory Mark Cole, Autry, Horton & Cole LLP, Tucker, Hugh Brown McNatt, McNatt, Greene & Peterson, Vidalia, for appellant.Jason Bradley Sanker, Michael Douglas McRae, Robert Thomas Monroe, McRae, Stegall, Peek, Harman, Smith & Manning, LLP, Cedartown, for appellee.Kristin Haynes Dial, Steven Thomas Minor, Tisinger Vance, P.C., Carrollton, Peter M. Degnan, Jonathan E. Wells, Alston & Bird, LLP, Atlanta, Charles Thomas Autry, Roland Felton Lee Hall, Autry, Horton & Cole, LLP, Tucker, for amici curiae.NAHMIAS, Justice.

We granted certiorari in this case to consider when the statute of limitation began to run in this action claiming that noise from a power plant operated by a public utility constitutes a nuisance. The trial court denied summary judgment, holding that the statute of limitation had not run on the plaintiffs' claim, and the Court of Appeals affirmed. See Oglethorpe Power Corp. v. Forrister, 303 Ga.App. 271, 693 S.E.2d 553 (2010). We conclude that the Court of Appeals erred in part of its reasoning and in not reversing the trial court's denial of summary judgment in part, but that it also properly affirmed the denial of summary judgment in part.

1. Appellant Smarr EMC owns and appellant Oglethorpe Power Corporation operates the Sewell Creek Energy Facility, a “peaking” power plant that began operating in 2000. A peaking plant stands ready when customers demand high amounts of electricity, as on hot summer days when electricity usage spikes. Gas-fired combustion turbines are used for peaking plants because they can be turned on and off within minutes. The appellees are neighbors of the power plant who filed this lawsuit in 2007, alleging that “since the commencement of operations of [Sewell Creek], there have been periods of excessive noise, vibrations, and interruption of plaintiffs' use and enjoyment of their adjoining property.”

Smarr and Oglethorpe moved for summary judgment. They contended that the plant was a permanent nuisance because the harm resulted from “some substantial and relatively enduring feature of the plan of construction or from an essential method of operation,” Restatement (Second) of Torts § 930, cmt. c, and also could not “be averted at slight expense.” Id. According to Smarr and Oglethorpe, because the appellees did not bring their action within four years from the date the plant began operating, it was barred by the applicable statute of limitation. See OCGA § 9–3–30(a) (providing that [a]ll actions for trespass upon or damage to realty shall be brought within four years after the right of action accrues”). The plaintiffs responded that the noise generated by the plant constituted a continuing nuisance that could and should be abated, that the noise became worse and different in 2004 than it was in earlier years of operation, and that their action therefore was not barred by OCGA § 9–3–30(a).

The trial court held that there was a “sharp conflict in the evidence” regarding whether the noise could be abated; that therefore Oglethorpe and Smarr had not established as a matter of law that the nuisance was permanent and non-abatable; that, starting with the 2004 operating season, “there is evidence tending to suggest an adverse change occurred in quantity and quality of noises and vibrations emitted from Sewell Creek from that observed before the start of the 2004 operating season”; and that the harm from the plant thus became obvious to the plaintiffs beginning with the 2004 operating season. For these reasons, the trial court ruled that the cause of action was not barred by OCGA § 9–3–30.

In a badly-divided whole-court decision, the Court of Appeals affirmed the denial of summary judgment. See Oglethorpe, 303 Ga.App. at 275–276, 693 S.E.2d 553. The three-judge plurality held that, under City of Atlanta v. Kleber, 285 Ga. 413, 677 S.E.2d 134 (2009), an issue of fact remained as to whether the nuisance was abatable at “slight expense” and that, if a jury resolved this issue in the plaintiffs' favor, the nuisance would be a continuing one and the plaintiffs could recover damages for injuries suffered in the four years preceding the filing of the complaint. Oglethorpe, 303 Ga.App. at 275–276, 693 S.E.2d 553. Chief Judge Miller concurred in the judgment only. See id. at 276, 693 S.E.2d 553. Three other judges dissented on the ground that, because the cost of the repairs needed to abate the nuisance—at least $3 million—was not slight, the Sewell Creek plant was a permanent nuisance for which the statute of limitation began to run in 2000 when the plant began operations and expired in 2004 before the plaintiffs filed this action. See id. at 277, 693 S.E.2d 553. The dissenters also argued that the noise from the plant was a permanent nuisance under Kleber because it resulted from a “substantial and relatively enduring feature of the plan of construction or from an essential method of operation.” Id. at 278, 693 S.E.2d 553. We granted certiorari.

2. Generally, whether a nuisance is deemed to be continuing or permanent in nature determines the “manner in which the statute of limitations will be applied.” Kleber, 285 Ga. at 416, 677 S.E.2d 134. If the nuisance is not abatable, it is considered permanent, and a plaintiff is allowed only one cause of action to recover damages for past and future harm. The statute of limitation begins to run against such a claim upon the creation of the nuisance once some portion of the harm becomes observable. See id.; Restatement (Second) of Torts § 899, cmt. d. A nuisance is deemed not abatable, even if possible to abate, if “it is one whose character is such that, from its nature and under the circumstances of its existence, it presumably will continue indefinitely.” Bainbridge Power Co. v. Ivey, 41 Ga.App. 193, 193, 152 S.E. 306 (1930). However, a nuisance is not considered permanent if it is ‘one which can and should be abated.’ Kleber, 285 Ga. at 416, 677 S.E.2d 134 (citation omitted). In this situation, “every continuance of the nuisance is a fresh nuisance for which a fresh action will lie,” and the statute of limitation will begin to run at the time of each continuance of the harm. Id.

The appellate courts of this State have adopted rules set forth in the Restatement (Second) of Torts to assist in applying these principles. See, e.g., Kleber, 285 Ga. at 415–417, 677 S.E.2d 134; Cox v. Cambridge Square Towne Houses, 239 Ga. 127, 128–129, 236 S.E.2d 73 (1977). Under the Restatement,

[i]n cases in which a public utility or governmental agency erects a harmful structure such as a bridge or conducts a harmful activity such as opening a sewer that pollutes a stream and the interference with the plaintiff's interests is not abatable by a proceeding in equity, the statutory period normally begins when the structure is completed or the activity is begun. In some cases, however, in which the defendant has done an act that may have a permanent injurious effect, but when the effect is problematical and no harm is observable, the statute does not begin to run until some portion of the harm becomes observable.

Restatement (Second) of Torts § 899, cmt. d (emphasis added). Section 930 of the Restatement provides guidance for when a harmful activity by a public utility is subject to abatement.

Damage to neighboring landowners is frequently incident to the construction and operation of establishments employed in necessary public service, which nominally have the right of taking land by eminent domain. A railway embankment with an inadequate culvert diverts water upon nearby land; a municipal electric plant sends smoke and fumes into homes and factories; a city sewage disposal system pollutes a stream to the injury of bordering landowners. If the damage results from some minor feature of construction or management, so that it could be averted at slight expense, the normal remedy of successive actions for past invasions or relief by injunction would alone be available, as is also true if the harm results from an improper and unnecessary method of operation. But if the invasions are caused by some substantial and relatively enduring feature of the plan of construction or from an essential method of operation, then it will usually not be abatable by injunction and the desirability of granting the injured person complete compensation for past and future invasions is apparent.

Restatement (Second) of Torts § 930, cmt. c (emphasis added).

In Kleber, we discussed these rules as applied to a claim filed against an entity “employed in necessary public service.” The plaintiffs filed a nuisance action against the Norfolk Southern railroad, alleging that a culvert and drainage pipe installed by Norfolk were insufficient to drain a 37–acre basin and that the inadequate culvert and pipe, combined with inadequate maintenance, caused flooding on their property. See Kleber, 285 Ga. at 414–416, 677 S.E.2d 134. We held that, to the extent the plaintiffs complained about the “mere presence” of the inadequate culvert and pipe, the claim was barred by the statute of limitation in OCGA § 9–3–30, because the pipe and culvert were installed well over four years before the landowners filed their action. See 285 Ga. at 416–417, 677 S.E.2d 134. We also held, however, that to the extent the landowners complained that the continued flooding was due to the improper maintenance of the culvert and...

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  • Oglethorpe Power Corp. v. Estate of Forrister
    • United States
    • Georgia Court of Appeals
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    ...used in peaking plants because they can be turned on and off in minutes to meet short-term energy demands.Id. at 272, 693 S.E.2d 553. In Forrister, this court affirmed the trial court's denial of summary judgment to Smarr EMC (“Smarr”), the owner, and Oglethorpe Power Corporation (“Oglethor......
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3 books & journal articles
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    • United States
    • Mercer University School of Law Mercer Law Reviews No. 67-1, September 2015
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