Toyo Tire N. Am. Mfg., Inc. v. Davis, A15A0201.

• Decision Date: 16 July 2015
• Docket Number: No. A15A0201.,A15A0201.
• Citation: 775 S.E.2d 796,333 Ga.App. 211
• Parties: TOYO TIRE NORTH AMERICA MANUFACTURING, INC. v. DAVIS et al.
• Court: Georgia Court of Appeals

333 Ga.App. 211

775 S.E.2d 796

TOYO TIRE NORTH AMERICA MANUFACTURING, INC.

v.DAVIS et al.

No. A15A0201.

Court of Appeals of Georgia.

July 16, 2015.

Certiorari Granted Nov. 2, 2015.

Archer & Lovell, David G. Archer, Cartersville, Morris, Manning & Martin, Robert Philip Alpert, Brian Mitchel Blythe, Atlanta, for Appellant.

Akin & Tate, S. Lester Tate III, Cartersville, William Morgan Akin, for Appellees.

Opinion

MILLER, Judge.

Duron and Lynn Davis (“the Davises”) filed suit against Toyo Tire North America Manufacturing, Inc. (“Toyo Tire”), asserting claims for trespass, continuing trespass, and nuisance, arising out of Toyo Tire's operation of a tire manufacturing facility in close proximity to real property that the Davises own and where they reside.¹ Toyo Tire filed a motion for summary judgment, which the trial court denied. The trial court certified its order for immediate review, and we granted Toyo Tire's application for interlocutory review. On appeal, Toyo Tire contends that it was entitled to summary judgment. For the reasons that follow, we affirm.

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. On appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Punctuation and footnotes omitted.) Taylor v. Campbell, 320 Ga.App. 362, 739 S.E.2d 801 (2013).

So viewed, the evidence shows that the Davises own and reside on property located at the intersection of U.S. Highway 411 and Shinall Road in Bartow County (the “Property”). The Davises have lived on the Property since 1995. The Toyo Tire manufacturing facility at issue is located on the other side of Highway 411 from the Property, 1,000 feet or less from the Davises' house.

Construction on the facility began in 2004 and was completed in 2005. Toyo Tire's facility began operating in January 2006. The Davises subsequently hired counsel, who sent a letter to Toyo Tire on the Davises' behalf on October 25, 2007. The Davises' counsel enclosed a draft complaint asserting claims for trespass, nuisance, and negligence but stated that the Davises wished to pursue an amicable resolution of the matter and, as such, were requesting that Toyo Tire purchase their home.

The Davises filed their complaint in the instant action on February 27, 2013. The complaint alleges that, since Toyo Tire began operating the manufacturing facility, the Davises have been subjected to: constant noise from, among other sources, truck traffic in and out of the facility, backup alarms on vehicles at the facility, and the facility itself; lights from the truck traffic, equipment and the facility itself; black dust that invades the Property, believed to be carbon black; foul odors from the facility; drastically increased traffic on Highway 411 and Shinall Road from trucks entering and leaving the facility and employees going to and from work; and the unsightliness of the facility.

The record reflects that Toyo Tire's operations have expanded over time. Toyo Tire's president and plant manager testified that the Toyo Tire facility and operations have grown in several phases. The initial phase, Phase I, was completed in October 2006, and at that time, the plant was producing approximately 3,000 tires a day and approximately 90,000 per month. In 2008, the facility reached a production level of approximately 4,500 tires a day and approximately 135,000 per month after Phase II, an internal expansion involving the addition of equipment, was complete. By the time a Phase III expansion was completed in the summer of 2011, the factory was producing approximately 13,500 tires a day, 400,000 tires per month, and 4.7 million tires per year. Between 2006 and 2011, the number of employees at the facility increased from approximately 350 or 400 to 1,000. At the time of the plant manager's deposition, March 10, 2014, Toyo Tire had initiated a Phase IV expansion that was expected to bring production to between 6.7 to 7 million tires per year and the number of employees at the factory to roughly 1,450.

1. Toyo Tires contends that all of the Davises' claims are barred by the four-year statute of limitation. OCGA § 9–3–30. We disagree.

The resolution of this issue is controlled by the Georgia Supreme Court's decision in Cox v. Cambridge Square Towne Houses, Inc., 239 Ga. 127, 236 S.E.2d 73 (1977). In Cox, a storm drain system was installed in an apartment complex owned by the defendant. Id. at 127, 236 S.E.2d 73. More than four years later the plaintiff, a neighboring property owner, filed a trespass action against the apartment complex owner, alleging that the drain system had increased the flow of surface waters across his land. Id. The trial court granted summary judgment for the defendant on the basis that the action was barred by the four-year statute of limitation applicable to actions for trespass upon or damage to realty. Id. Relying on the Restatement of Torts, our Supreme Court reversed. Id. at 129, 236 S.E.2d 73.

The Supreme Court first quoted Section 930 of the Restatement, which addresses damages for future invasions on land, as follows:

(1) Where, by the maintenance of a structure on his own land or by acts and operations thereon, a person causes continuing or recurrent tortious invasions of the land of another, the other is entitled to recover for future [invasions] if, and only if, it appears that (a) the situation will continue indefinitely and (b) it is incident to (i) an enterprise affected with a public interest, the operation of which as presently operated will not be enjoined, or (ii) other enterprises if the injured person so elects.

Id. at 128, 236 S.E.2d 73, quoting Restatement of Torts § 930. It went on to discuss comment d to Section 899.² Id. Comment d. begins by explaining that “when there is a series of harms caused by the existence of a structure or by the operation of a business outside the land, the time when the statute of limitations begins to run depends upon the rules ... stated in § 930.” Restatement of Torts § 899, cmt. d. Comment d. first explains the accrual rules that apply “[i]n cases where a public utility or governmental agency erects a harmful structure ... or conducts a harmful activity, ... and the interference with the plaintiff's interests is not abatable by a proceeding in equity.” Restatement of Torts § 899, cmt. d. The portion of comment d. upon which the Supreme Court relied in Cox, however, concerns “other cases when there is a series of continuing harms.” The comment explains that in these other cases, “the plaintiff, under the rule[ ] stated in ... § 930 has an election to recover or is permitted to recover damages only for harm to the use of the land up to the time of trial. In cases of this type, the statute does not run from the time of the first harm except as to the harm then caused.” Id.; Cox, supra, 239 Ga. at 128, 236 S.E.2d 73. The Supreme Court in Cox found that it clearly appeared from the record that the situation giving rise to the alleged interference would continue indefinitely such that the plaintiff could elect whether to sue for damages incurred in the past four years or seek all damages, past and prospective. Cox, supra, 239 Ga. at 129, 236 S.E.2d 73. It then construed the relevant portion of comment d., set forth above, as providing that in either event, the statute of limitation “does not preclude recovery for any damages save those which were suffered more than 4 years prior to the filing of the suit.” Id.

The same Restatement rules the Supreme Court relied upon in Cox have been carried forward in the Restatement (Second) of Torts, which the Supreme Court has more recently used to guide its decisions on statute of limitation issues in nuisance cases. See Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 333–337(2), (3), 711 S.E.2d 641 (2011) ; City of Atlanta v. Kleber, 285 Ga. 413, 417(1), 677 S.E.2d 134 (2009).³

Here, the evidence establishes that the Toyo Tire facility is continuing to grow and expand, and while Toyo Tire claims that certain invasions alleged by the Davises cannot be proved or are not actionable, it does not generally dispute that the Davises' allegations relate to invasions that are enduring in character and not readily alterable. See Restatement (Second) of Torts § 930, cmt. b. (“When the private structure or enterprise that is producing the invasions is substantial and relatively enduring in character and not readily alterable so as to avoid future injury, its maintenance or operation ordinarily indicates that the owner intends to continue indefinitely to cause invasions upon the neighboring land.”). Applying Cox, we conclude that the “permanence” of the invasions alleged here would entitle the Davises to elect to recover all available past and prospective damages but that the Davises' claims are not time-barred except as to damages for past invasions occurring more than four years before they filed their complaint.

Contrary to Toyo Tire's arguments, Oglethorpe Power, supra, and Kleber, supra, do not require a different result. In each of those cases, the Supreme Court applied the analytical framework the Restatement (Second) of Torts provides for determining when a nuisance claim accrues against an entity providing an essential public service, such as electricity or railroad transportation. For example, both cases relied upon comment c. to Section 930, which explains when a nuisance caused by such an entity is considered non-abatable. See Oglethorpe Power, supra, 289 Ga. at 334(2), 711 S.E.2d 641 ; Kleber, supra, 285 Ga. at 417(1), 677 S.E.2d 134. That comment states:

Damage to neighboring landowners is frequently incident to the construction and operation of establishments employed in

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