Toyo Tire N. Am. Mfg., Inc. v. Davis

• Decision Date: 06 June 2016
• Docket Number: S15G1804
• Citation: 787 S.E.2d 171,299 Ga. 155
• Parties: Toyo Tire North America Manufacturing, Inc. v. Davis et al.
• Court: Georgia Supreme Court

299 Ga. 155
787 S.E.2d 171

Toyo Tire North America Manufacturing, Inc.
v.
Davis et al.

S15G1804

Supreme Court of Georgia.

Decided: June 6, 2016

Robert Philip Alpert, Jeffrey Keith Douglass, Morris, Manning & Martin, LLP, David G. Archer, Archer & Lovell, PC, for Appellant.

William Morgan Akin, S. Lester Tate, III, Akin & Tate, for Appellee.

Brian David Boone, Alston & Bird LLP, Kyle G.A. Wallace, amici curiae.

NAHMIAS, Justice.

299 Ga. 155

Toyo Tire North America Manufacturing, Inc. operates a large tire manufacturing and distribution facility about 625 feet from the home of Lynn and Duron Davis. The Davises sued Toyo Tire, alleging that its facility is a nuisance and has resulted in a trespass, causing them discomfort and annoyance and diminishing their property's value. The trial court denied Toyo Tire's motion for summary judgment; the Court of Appeals affirmed that order; and we granted certiorari to address two issues.

First, we consider Toyo Tire's argument that the Davises presented insufficient evidence, at the summary judgment stage of the case, to show that the decrease in their property value was proximately caused by the alleged nuisance and trespass. Applying the standards used in reviewing summary judgment motions, we reject this argument. Second, we consider Toyo Tire's argument that even if the Davises can establish causation, they cannot recover damages both for their discomfort and annoyance and for the diminution in their property value, because that would constitute an impermissible double recovery. Following a long line of this Court's precedents as well as several cases from the Court of Appeals (except one case that we disapprove), we conclude that the past discomfort and annoyance caused by a continuing nuisance and the diminution in the property's market value resulting from the expectation of continuing discomfort and annoyance constitute two separate injuries, and the Davises, who both occupy and own the property, may potentially recover damages for both injuries. Accordingly, we affirm.

1. Since 1995, the Davises have resided in a house they now own located on four acres in an area zoned for low-density residential or agricultural use at the intersection of U.S. Highway 411 and Shinall Road in Bartow

787 S.E.2d 174

County. In 2004, the property across the highway from the Davises was re-zoned for heavy industrial use, and Toyo Tire began building a manufacturing and distribution facility on about 260 acres across the road from the Davises. Since the facility began

299 Ga. 156

operating in January 2006, it has undergone three expansions. Upon completion of the first phase in October 2006, the facility had about 400 employees and was producing 3,000 tires a day. In 2008, the second phase was completed, and the facility had about 570 employees and produced 4,500 tires per day. In mid–2011, the third phase was completed, and the number of employees increased to about 1,000 and the number of tires per day increased to 13,500. In March 2014, when the plant manager was deposed for this case, the facility was undergoing its fourth expansion, which was expected to increase the number of employees to 1,450 and the number of tires per day to 19,178. Phases three and four both included increasing the size of the facility. Toyo Tire operates around the clock, with two 12–hour shifts every day.

On October 25, 2007, the Davises sent a letter to Toyo Tire through their counsel, asserting that they planned to file a lawsuit for trespass, nuisance, and negligence, and requesting that Toyo Tire purchase their home (as it had done with the two properties next door to the Davises). Toyo Tire declined. On February 27, 2013, the Davises filed a complaint in Bartow County Superior Court alleging that the noise, lights, odors, black dust (alleged to be carbon black), and increased traffic from the facility, as well as its unsightliness, constitute a nuisance; they also alleged that the black dust emitted by the facility constitutes a trespass.¹ The Davises requested damages for Toyo Tire's maintenance of a nuisance, damages in nuisance for the diminution in fair market value of their property, and damages for trespass.

During discovery, the Davises were deposed, and they explained how Toyo Tire's operations, including the loud noises, bright lights, odors, and black dust emissions from the facility, its equipment, and frequent truck deliveries, as well as the increased traffic from both trucks and employees, interfered with their use and enjoyment of the property and with their daily lives. They testified, for example, that their sleep is interrupted by the light and noise from the facility, and that they wear masks when they go outside and can no longer use their large yard for family gatherings because of the odors emitted from the facility, the danger from the increased traffic, and the carbon black that settles in their yard. Bruce Penn, a real estate appraisal expert hired by the Davises, was also deposed. He testified about

299 Ga. 157

appraisals done on their property, which indicated that its value without the Toyo Tire plant would be $280,000. He also testified about his depreciation analysis, which led him to conclude that the nuisance of the Toyo Tire facility had decreased the value of the Davises' property by about 35 to 40%, with the black dust as a trespass decreasing the value by an additional 10 to 15%.

On May 23, 2014, Toyo Tire filed a motion for summary judgment, arguing, among other things, that the Davises failed to prove that the specific interferences they alleged had caused their property value to decrease and that, under Georgia law, the Davises cannot recover both for diminution of property value and for discomfort and annoyance caused by a nuisance. Toyo Tire did not argue that Penn's expert testimony was inadmissible or seek to exclude it under OCGA § 24–7–702. After a hearing, the trial court denied summary judgment, concluding that material issues of fact still exist in the case. The court certified the order for immediate review, and the Court of Appeals granted Toyo Tire's application for interlocutory review and affirmed the trial court in a partially divided seven-judge opinion. See Toyo Tire North Am. Mfg., Inc. v. Davis , 333 Ga.App. 211, 775 S.E.2d 796 (2015).

Division 2 of the majority opinion held that the Davises had presented sufficient evidence that the alleged nuisance and trespass caused their property to depreciate to survive summary

787 S.E.2d 175

judgment, because Penn's expert testimony on that issue was properly considered even though he had not examined the Davises' property or taken into account the precise allegations made by the Davises. See Toyo Tire , 333 Ga.App. at 216–217, 775 S.E.2d 796. In Division 4, the majority opinion rejected Toyo Tire's argument that the Davises may not recover damages for both diminution in property value and personal discomfort and annoyance. Judge Dillard joined the majority opinion in judgment only. Judge Branch concurred fully in all but Division 2. Presiding Judge Andrews, joined by Judge Branch, dissented as to Division 2, and he concurred in the rest of the majority opinion in judgment only.

We then granted Toyo Tire's petition for a writ of certiorari, directing the parties to address whether the Court of Appeals erred in concluding (1) that an issue of fact remained as to whether the alleged nuisance and trespass proximately caused the Davises' property value to decrease and (2) that the Davises could potentially recover in nuisance both for diminution in their property value and for their personal discomfort and annoyance. As explained below, we

299 Ga. 158

answer both questions in the negative and affirm the Court of Appeals judgment.²

2. Toyo Tire first argues that the Davises have failed to present evidence sufficient to prove that the nuisance and trespass alleged caused a diminution in their property's value, because the Davises' appraisal expert, Bruce Penn, did not consider the specific interferences alleged by the Davises but rather looked at depreciation caused by “industries” in general. “Causation is an essential element of nuisance, trespass, and negligence claims. To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant's conduct and the alleged injury.” Toyo Tire , 333 Ga.App. at 216, 775 S.E.2d 796 (citing Alexander v. Hulsey Environmental Svcs., Inc. , 306 Ga.App. 459, 462, 702 S.E.2d 435 (2010) ).

In his deposition, Penn explained that he had over 30 years of experience as a real estate appraiser, had done several hundred appraisals in Bartow County, and was certified in the top tier of licensing for appraising in Georgia. He testified that in his expert opinion, the Toyo Tire facility and its black dust emissions caused the Davises' property value to decrease by 50%—35 to 40% due to the nuisance and 10 to 15% due to the black dust trespass. Penn arrived at this conclusion primarily by conducting a “paired sales” analysis, in which he compared the sales prices of three pairs...