Powell v. Ledbetter Bros., Inc.
| Decision Date | 05 October 1983 |
| Docket Number | No. 39650,39650 |
| Citation | 251 Ga. 649,307 S.E.2d 663 |
| Parties | John POWELL, et al. v. LEDBETTER BROTHERS, INC. et al. |
| Court | Georgia Supreme Court |
Marson G. Dunaway, Jr., Rockmart, for John Powell, et al.
Michael J. Bowers, Atty. Gen., Charles M. Richards, Michael E. Hobbs, Asst. Attys. Gen., J.M. Hudgins, III, Long Weinberg, Ansley & Wheeler, Atlanta, Wayne Gammon, Cedartown, for Ledbetter Bros., Inc., et al.
This case arises out of a flood that occurred in Cedartown, Georgia in March, 1979. Appellants either owned or leased property in the vicinity of Big Cedar Creek in and near Cedartown. Appellants initially brought this action against Polk County, the Department of Transportation, Ledbetter Brothers (general contractors) and four private industrial corporations seeking $525,000 in damages to real and personal property from the above-mentioned flood. The basis of appellants' suit was the alleged negligent design, construction and maintenance of the roads and certain specified bridges over Big Cedar Creek in such a manner as to impede and prevent the usual run-off of water down Cedar Creek during periods of heavy rainfall. Appellants alleged as a consequence of this negligence, their various properties are repeatedly flooded and damaged. The complaint alleged that the damage was an unlawful taking and damaging of private property for public purposes without just and adequate compensation being first paid, an unlawful trespass and a continuing nuisance. All design work on these projects was done by the Department of Transportation and all construction was done by Ledbetter Brothers.
Appellants subsequently amended their complaint by dismissing the action against the four industrial corporations, striking in its entirety the original complaint, and substituting a "Redrafted Complaint." Appellants' redrafted complaint again alleged an unlawful taking and damaging of property without compensation but made no reference to Polk County. An amendment to the redrafted complaint further alleged the projects, as constructed, were imminently and inherently dangerous to the properties of appellants.
Polk County filed a motion for judgment on the pleadings, the Department of Transportation filed a motion to dismiss, and Ledbetter filed a motion for summary judgment, all of which were granted. Appellants filed a motion to reinstate Polk County as a party which the trial court denied. Appellants enumerate as error these four actions by the trial court. We affirm in part and reverse in part.
1. Appellants contend the trial court erred in granting Polk County's motion for judgment on the pleadings and in denying appellants' motion to reinstate Polk County as a party. We disagree.
The basis of the trial court's grant of judgment on the pleadings to Polk County was that appellants' redrafted complaint contained no allegations against the county upon which liability could be found. A review of the redrafted complaint reveals appellants made no reference to Polk County, alleged no jurisdiction against the county, alleged no negligence by the county and made no demand for judgment against the county. Therefore, the trial court properly granted the county's motion for judgment on the pleadings.
Appellants argue the trial court erred in denying their motion to reinstate the county. They contend OCGA § 32-2-6(a) (Code Ann. § 95A-305) makes the county in which the roads and bridges are located a proper and necessary party by operation of law when suit lies against the Department of Transportation. 1 This statute requires suit be brought against the county and the Department of Transportation shall defend, not visa versa. We find no merit in these two enumerations of error.
2. Appellants also contend the trial court erred in granting the Department of Transportation's motion to dismiss. We agree.
The Georgia Constitution provides that "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid..." Ga. Const. Art. I, Sec. III, Par. I. (Constitution of 1976, Art. I, Sec. III, Par. I; Code Ann. § 2-301.) Direct condemnation proceedings are provided for by statute. Cf. OCGA § 22-2-1 et seq. If the public authority does not proceed directly to condemn, the injured citizen, nonetheless has a right to compensation under the state constitution. A cause of action will lie. The measure of damages has been established by the cases. Smith v. Floyd County, 85 Ga. 420, 11 S.E. 850 (1890); Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967); Fulton County v. Baranan, 240 Ga. 837, 242 S.E.2d 617 (1978). Such an action has been called an "inverse condemnation" action.
Count 1 of appellants' redrafted complaint alleges the Department of Transportation, through the negligent design and maintenance of public roads and bridges, caused repeated flood damage to appellants' properties without paying compensation for same. These allegations are sufficient to state a constitutional cause of action under the eminent domain provision.
The Department of Transportation contends this case is controlled by our recent decision in Sikes v. Candler County, 247 Ga. 115, 274 S.E.2d 464 (1981). They argue, where damage to property is the direct result of the construction and maintenance of state highways, the statutory procedure set forth in OCGA § 32-2-6(a) (Code Ann. § 95A-305) is the authorized and exclusive procedure whereby the department can be made responsible for money damages. OCGA § 32-2-6 (Code Ann. § 95A-305) applies only to those actions where sovereign immunity exists and must be waived. For instance, Sikes, supra, was a wrongful death action alleging negligence on the part of the county. Such is an action where sovereign immunity exists and the statute provides the waiver. We find Sikes inapposite to the case sub judice. No sovereign immunity exists where a cause of action for inverse condemnation lies, because the Constitution itself affords the right. Therefore, the trial court erred in granting the Department of Transportation's motion to dismiss.
3. Appellants also enumerate error in the trial court's grant of Ledbetter Brothers' motion for summary judgment. We agree.
The relevant portions of appellants' redrafted complaint allege the construction in question was an inherently dangerous undertaking and that by use of ordinary care, Ledbetter should have foreseen the damage to appellants' properties.
In support of its motion for summary judgment, Ledbetter submitted the...
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