Savage v. E.R. Snell Contractor, Inc.
| Decision Date | 05 November 2008 |
| Docket Number | No. A08A1368.,No. A08A1369.,A08A1368.,A08A1369. |
| Citation | 295 Ga. App. 319,672 S.E.2d 1 |
| Parties | SAVAGE et al. v. E.R. SNELL CONTRACTOR, INC. Georgia Department of Transportation v. Savage et al. |
| Court | Georgia Court of Appeals |
Larry E. Stewart, Lawrenceville, for Reba Savage et al.
Smith, Moore & Leatherwood, J. Robert Persons, Swift, Currie, McGhee & Hiers, Thomas B. Ward, Atlanta, for E.R. Snell Contractor, Inc.
Thurbert E. Baker, Attorney General, Claude M. Sitton, Assistant Attorney General, for Georgia Department of Transportation.
Larry Eugene Stewart, Lawrenceville, for Reba Savage et al.
Plaintiffs Reba Savage, Jack Savage, and Erin Glanton Savage (collectively, the "Savages") sued the Georgia Department of Transportation ("DOT") and E.R. Snell Contractor, Inc. ("Snell"), alleging that the defendants' road widening project created flooding on the Savages' property. Snell moved for summary judgment, and the trial court granted the motion. DOT filed a motion to dismiss, arguing that the Savages' claims were barred based on their failure to give the requisite ante litem notice pursuant to OCGA § 50-21-20, and the trial court granted the motion in part and denied it in part. The Savages appeal in Case No. A08A1368, alleging that the trial court erred in granting summary judgment to Snell. DOT appeals in Case No. A08A1369, contending that the trial court erred in failing to dismiss the Savages' case in its entirety. For reasons that follow, we affirm.
Plaintiff Reba Savage owns property located adjacent to Highway 124 on Sunderland Drive in Snellville. She lives in the home on the property with her son and daughter-in-law, plaintiffs Jack Savage and Erin Glanton Savage. Shortly before she purchased the property, Reba Savage learned that DOT intended to widen Highway 124. On June 24, 1998, after the closing, Savage sold a portion of the property to DOT and granted them a temporary easement for purposes of the road widening project.
The State awarded Snell the contract for the expansion project, and they began construction sometime during 2004 or 2005. After Snell began clearing and grading the land, the Savages experienced heavy flooding on their property.1 According to Reba Savage, on multiple occasions, rainwater broke through silt fence barriers erected by Snell and pooled in her backyard, sometimes standing "for days." The water also entered the house, flooding one of their bedrooms on at least 15 occasions. The Savages also had their septic tank pumped approximately five times during the course of construction after sewage erupted from their toilets, bathtubs, sinks, and flooring.
After repeated complaints to Snell and DOT, the Savages served ante litem notice of their claims on the State on July 25, 2006, pursuant to OCGA § 50-21-26(a)(2). DOT did not respond, and the Savages filed suit against Snell and DOT, alleging that they were damaged by the defendants' negligence and improper design and construction of the expansion project.
Snell moved for summary judgment, contending that it could not be held liable to the Savages because it constructed the roadway in accordance with the plans and specifications provided by DOT. The trial court agreed and granted Snell's motion. DOT filed a motion to dismiss, alleging that the Savages' claims against the State were barred because they failed to timely provide the requisite statutory ante litem notice. The trial court granted the motion in part and denied it in part, limiting the Savages' claims to those for damages that occurred on or after July 25, 2005. We affirm in both cases, for reasons that follow.
1. The Savages contend that the trial court erred in granting Snell's motion for summary judgment. We disagree.
"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law."2 A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in a light most favorable to the nonmovant.3
Georgia law provides that "[a] contractor for the State engaged in work on a public project is not liable for injury or damage to private property resulting from the work performed unless that damage or injury results from the contractor's negligence or wilful tort."4 However, "a contractor who is an expert in the design of the type of work being done may not ignore defects in the design."5 Therefore, Snell can be held liable to the Savages only if it performed its work on the roadway project negligently or if it held itself out as an expert in design.6
DOT provided the roadway construction plans and specifications for the expansion project, including erosion and sedimentation plans. The DOT contract provided that Snell was responsible for, inter alia, "providing maintenance" on multiple temporary erosion and sediment control devices, including silt fencing, silt retention barriers, and sediment basins. Lloyd C. McNally, Jr., who surveyed Highway 124 after the roadway construction project was completed, determined that the construction and the storm water structures conformed to the DOT standards and specifications as shown on the construction plans issued for the project. According to Snell's project supervisor, Thomas Byrd, the erosion control devices were installed pursuant to DOT's plans and specifications. Byrd also testified that Snell was not authorized to vary from the plans without approval from DOT.
The Savages have not provided any contrary evidence. Instead, they broadly contend that "Snell's negligence in completing its DOT contract caused nuisance damages to the plaintiffs." Their sole specific inference of negligence is that, on one occasion, a portion of the silt fencing was overrun with silt. But Byrd testified that the fencing was repaired thereafter.7 Moreover, the Savages have failed to demonstrate that the single instance of the apparent failure of the silt fencing was a result of Snell's negligence or, more importantly, that it caused the flooding and erosion problems from storm water run-off that they allege in their complaint.8 Instead of pointing to specific evidence to support their contention, the Savages reason that "[if] the erosion control plans were adequate and the erosion controls failed numerous times over a year's span, then the only reasonable inference is that E.R. Snell negligently failed to maintain the controls entrusted by DOT." This conclusory statement, unsupported by evidence, is insufficient to demonstrate negligent construction on the part of Snell.9 Accordingly, the trial court did not err in granting Snell's motion for summary judgment.10
2. In the argument portion of their brief, the Savages allege that "[the] plaintiffs are entitled to recover punitive damages and attorney's fees." But the Savages failed to enumerate this argument as error on appeal, and therefore, we cannot consider it.11 Moreover, they do not indicate how the trial court erred.12 And the Savages' failure to demonstrate that this issue was raised and ruled upon by the trial court similarly precludes our review.13
3. DOT moved to dismiss all of the Savages' claims against the State pursuant to OCGA § 9-11-12(b)(1), alleging that the claims were barred by sovereign immunity based upon the Savages' failure to give adequate ante litem notice within 12 months of the date that the loss was discovered as required by OCGA § 50-21-26(a)(1). Specifically, DOT alleged that the Savages were aware of their losses as early as March 25, 2005, and, therefore, their July 25, 2006 ante litem notice to the State was untimely and bars the Savages' claims. DOT also argued that the notice was deficient because it failed to specify the time of the flooding occurrences. The trial court granted the motion in part, dismissing the Savages' claims for damages or losses sustained before July 25, 2005. However, the court denied DOT's motion to dismiss for claims for damages sustained on or after July 25, 2005, holding that the flooding and erosion occurrences during that time "constitute new causes of action covered by the plaintiffs' July 25, 2006 ante litem notice." DOT appeals, arguing that the trial court erred in failing to dismiss the Savages' claims against the State in their entirety.
Pursuant to OCGA § 50-21-26 of the Georgia Tort Claims Act ("GTCA"), a person is prohibited from bringing a tort action against the State without first giving notice to the State of the claim. The statute specifies a detailed procedure for notifying the State of a claim before filing a lawsuit against it.14 The notice must be given in writing within 12 months of the date that the loss was discovered or should have been discovered,15 and the contents of the notice must include, inter alia, "[t]he time of the transaction or occurrence out of which the loss arose."16 "The purpose of these requirements is to ensure that the state receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit."17 The GTCA requires strict compliance with the ante litem notice requirement; substantial compliance is inadequate under the Act.18 19
(a) DOT contends that the Savages' claims against the State should have been dismissed in their entirety. We disagree.
The Savages sent their ante litem notice to the State on July 25, 2006. However, the Savages were aware of losses as early as March 25, 2005.20 Therefore, as the trial court properly concluded—and the Savages concede—the plaintiffs cannot recover from DOT for the losses and damages the...
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