Provident Mut. Life Ins. of Philadelphia v. Atlanta

• Decision Date: 28 March 1995
• Docket Number: Civil Action File No. 1:93-CV-1341-JTC.
• Citation: 938 F. Supp. 829
• Parties: PROVIDENT MUT. LIFE INS. CO. OF PHILADELPHIA, Plaintiff, v. CITY OF ATLANTA, Defendant.
• Court: U.S. District Court — Northern District of Georgia

938 F. Supp. 829

PROVIDENT MUT. LIFE INS. CO. OF PHILADELPHIA, Plaintiff, v. CITY OF ATLANTA, Defendant.

Civil Action File No. 1:93-CV-1341-JTC.

United States District Court, N.D. Georgia, Atlanta Division.

March 28, 1995.

COPYRIGHT MATERIAL OMITTED

Michael Weinstock, Alan Robert Heath, and Richard John Capriola, Weinstock & Scavo, Atlanta, GA, for Provident Mutual Life Insurance Company of Philadelphia.

Charles George Hicks, Office of Atlanta City Attorney, Atlanta, GA, for City of Atlanta and Andrew L. Bell.

ORDER OF THE COURT

CAMP, District Judge.

This action is before the Court on Defendant's Renewed Motion for Judgment on the Pleadings # 35-1 or for Summary Judgment # 35-2,¹ and Motion to Extend Time to Refile Motion for Summary Judgment # 34-1. For the following reasons, Defendant's Motion for Summary Judgment # 35 is GRANTED.

Defendant's Motion to Extend Time to Refile is based upon a leave of absence granted counsel for the dates the motion was originally due. Accordingly, this Motion # 34 is GRANTED.

I: BACKGROUND

Plaintiff in this action is the owner of a commercial office complex at 2459 Roosevelt Highway. Plaintiff seeks damages against Defendant due to its operation of the William B. Hartsfield Atlanta International Airport hereinafter "Airport". Plaintiff's property is located near the Airport and is in the direct flight path of aircraft departing from and landing on runways 9R and 9L. Plaintiff claims high levels of noise, dust, exhaust and vibrations from the planes have injured its use and enjoyment of the property.

The Court granted in part Defendant's original Motion, dismissing Plaintiff's Fifth Amendment "takings" and state law punitive damages claims, and granting summary judgment on Plaintiff's state law physical inverse condemnation claim and Equal Protection claims. However, Defendant was denied summary judgment on the issue of inverse condemnation by nuisance. Defendant was permitted to refile its motion to more thoroughly address Plaintiff's state law claims of nuisance and trespass, and its defense of federal immunity.

II: SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure defines the standard for summary judgment: Courts should grant summary judgment when "there is no genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "The district court should `resolve all reasonable doubts about the facts in favor of the non-movant,' ... and draw `all justifiable inferences ... in his favor....'" United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991). The court may not weigh conflicting evidence nor make credibility determinations. Hairston v. Gainesville Sun Publ. Co., 9 F.3d 913, 919 (11th Cir.1993), rh'g denied, 16 F.3d 1233 (1994) (en banc).

As a general rule, "the party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). However, the movant's responsibility varies depending upon which party bears the burden of proof at trial on the issue in question.

For issues upon which the movant bears the burden of proof at trial, the moving party must affirmatively demonstrate the absence of a genuine issue of material fact as to each element of its claim on that legal issue. It must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial. If the moving party makes such a showing, it is entitled to summary judgment unless the non-moving party comes forward with significant, probative evidence demonstrating the existence of an issue of fact. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993) (quoting Four Parcels, 941 F.2d at 1437-38).

On the other hand, when the non-movant bears the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar material negating the opponent's claim but may simply point out to the district court that there is an absence of evidence to support the non-moving party's case on the issue in question. Id. at 1115-16. Of course, the movant may offer evidence to affirmatively negate a material fact upon which the non-movant has the burden and which is essential to its claim. In either case, the non-movant may not rely upon allegations or denials in the pleadings. Fed.R.Civ.P. 56(e). The non-movant must respond with sufficient evidence to withstand a directed verdict motion at trial. Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir.1994) (citing Fitzpatrick, 2 F.3d at 1116-17). The non-movant may do so either by pointing out evidence in the record which the movant overlooked or by coming forward with additional evidence. Id.

The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no "genuine issue of material fact." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Id. at 249, 106 S.Ct. at 2511. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the non-moving party's case. Id. at 248, 106 S.Ct. at 2510.

III: ANALYSIS

Remaining in the case are Plaintiff's claims for nuisance and trespass, and Plaintiff's state-law claim for inverse condemnation based upon a taking by nuisance. Plaintiff's inverse condemnation claim is thus dependent in substance upon the outcome of its nuisance claim.

Defendant has renewed its motion for summary judgment based on the following assertions: (1) the Airport is not a nuisance because it was constructed and operated in a proper manner, (2) Plaintiff's complaint fails to state a claim for trespass or the trespass claim is barred by the statute of limitations, (3) Plaintiff's claims are barred prior to six months before the ante litem notice was given, (4) Plaintiff is barred by federal immunity from damages for airport noise.

The Court originally ruled that Plaintiff was entitled to pursue its trespass and nuisance claims under a continuing tort theory, so that Plaintiff's claims would have accrued within the statute of limitations. In light of Defendant's Renewed Motion for summary judgment, the Court has reconsidered its earlier ruling and reexamined the cases on which it was based.

The Court notes that, regardless of its ruling on accrual, a recent decision by the Georgia Supreme Court sharply limits Plaintiff's claims for nuisance and trespass. City of Chamblee v. Maxwell, 264 Ga. 635, 452 S.E.2d 488 (1994). Maxwell determined that under Georgia's ante litem notice requirement, O.C.G.A. § 36-33-5, a plaintiff may recover only those damages received during the six months prior to giving a defendant municipality notice of its claim. Id.

A) The Law of Nuisance

A structure "located and constructed as authorized by law, if constructed and operated in a proper manner, cannot be adjudged a nuisance. This applies with special force to works thus authorized to facilitate transportation ..., which are of a quasi-public nature." Ga R.R. & Banking Co. v. Maddox, 116 Ga. 64, 77, 42 S.E. 315 (1902); Delta Air Corp. v. Kersey, 193 Ga. 862, 867, 20 S.E.2d 245 (1942). However, if such structure is improperly constructed or negligently operated so that it produces smoke, cinders, noise, etc., "largely in excess of what would result from its proper operation," it may create a nuisance. Maddox, 116 Ga. at 80, 42 S.E. 315.

There is no dispute that construction of Defendant's Airport was authorized by law. Plaintiff does not dispute the Airport's proper construction. However, Plaintiff does allege that the Airport is improperly operated so as to create a nuisance.

Defendant asserts that Plaintiff's claims are barred by the statute of limitations. Plaintiff's claims are subject to a four-year statute of limitations for damage to real property. O.C.G.A. § 9-3-30. The Complaint was filed June 16, 1993. If Plaintiff's claims for nuisance and trespass arose before June 17, 1989, its claims are barred by the statute of limitations. Therefore, the central question is when did the statute of limitations began to run against Plaintiff's claims.

B) The Restatement Approach to Nuisance Claim Accrual

The Second Restatement of Torts outlines a method for determining claim accrual where there has been continuing harm. Restatement (Second) of Torts § 899, comment d (elaborating on the Restatement Rule that a claim may be barred by a statute of limitations). The "approach" of the Restatement was adopted by the Georgia Supreme Court in Cox v. Cambridge Square Towne Houses, Inc., 239 Ga. 127, 128-29, 236 S.E.2d 73 (1977). The Restatement provides that

in cases in which a public utility or government 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 interest is not abatable by a proceeding in equity, the statutory period of limitations normally begins when the structure is completed or the activity is begun.

Restatement (Second) of Torts § 899, comment d, at 443, "Continuing Harm — Nuisance" (1979). The Restatement contrasts such immediately observable and...