Weller v. Blake

• Decision Date: 27 March 2012
• Docket Number: No. A11A1933.,A11A1933.
• Citation: 12 FCDR 1251,726 S.E.2d 698,315 Ga.App. 214
• Parties: WELLER et al. v. BLAKE et al.
• Court: Georgia Court of Appeals

315 Ga.App. 214

726 S.E.2d 698

12 FCDR 1251

WELLER et al.

v.BLAKE et al.

No. A11A1933.

Court of Appeals of Georgia.

March 27, 2012.

Robert Benton Jackson IV, Lisa Beth Perlstein, for Appellant.

James Felton Taylor III, Atlanta, for Appellee.

DOYLE, Presiding Judge.

Allston and Kathleen Weller filed a complaint against Richard and Tina Blake for damages arising from smoke emanating from the Blakes' outdoor fireplace. The Wellers appeal the trial court's grant of summary judgment to the Blakes in several enumerations of error. For the reasons set forth below, we reverse.

In order to prevail on a motion for summary judgment under OCGA § 9–11–56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, 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.¹

So viewed, the record shows that the Blakes and the Wellers live next door to each other in a subdivision in Cobb County. In or around June 2008, the Blakes built an outdoor fireplace in their backyard. The fireplace's stone chimney is approximately ten feet high and is located about thirty feet from the Wellers' closest window; photographs contained in the record show that the top of the chimney is roughly level with the main floor of the Wellers' adjacent house, which sits on a basement. The Blakes received approval for the fireplace from the subdivision homeowners association before beginning construction, and although they did not have a permit at the time they constructed the fireplace, they later obtained one.

According to the Wellers, wood smoke fills their yard and house when the Blakes use their outdoor fireplace.² The smoke is visible and has a strong, offensive odor. The Wellers deposed that the smoke makes them and their three young daughters “very uncomfortable,” and it causes them to cough and have itchy, red eyes; headaches; scratchy throats; and difficulty breathing. When the smoke enters their home, the Wellers close their windows and the garage door, and on occasion, they move the children to a different part of the house or the basement or leave the house altogether to avoid it. Two of the Wellers' three young children have medical conditions, including allergies and croup, that are exacerbated by smoke inhalation, and the children's pediatrician told the Wellers that wood smoke “is not good for children.” The Wellers concede, however, that they have never had to administer medicine to the children or seek medical attention for them as a result of smoke inhalation from the Blakes' fireplace.

Allston testified that the Blakes used the fireplace to burn wood approximately twenty to thirty times in the three-year period preceding his deposition. The Blakes initially burned pine and other soft woods, but after the Wellers complained, the Blakes used other types of dry hardwoods and Duraflame logs, and they built smaller fires in an attempt to mitigate the smoke. They also planted fast-growing trees, minimized the frequency and duration of the fires, reduced the amount of kindling used in the fires, and made efforts to limit use of the fireplace to those days when the wind was blowing away from the Wellers' house. Richard further testified that an inspector from the Cobb County Fire Department inspected the fireplace following a complaint to the county by the Wellers, and the inspector concluded that the fireplace was suitable for burning and authorized him as a registered burner in Cobb County, which designation permitted him to burn hardwoods 24 hours a day. At the request of a Cobb County Building Inspector, Richard had the fireplace inspected by a structural engineer, who concluded that the fireplace “was sound and properly constructed.”

The Wellers filed suit against the Blakes, alleging claims for nuisance, negligence, punitive damages, and attorney fees and expenses pursuant to OCGA § 13–6–11. The Blakes moved for summary judgment, and the trial court granted the motion following oral argument. This appeal followed.

1. Nuisance. The Wellers argue that the trial court erred by granting summary judgment as to their nuisance claim because genuine issues of material fact exist. We agree.

In Georgia, a nuisance is “anything that causes hurt, inconvenience, or damage to another[,] and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.” ³

If a nuisance is found to exist although there has been only de minimis damage to the property interest, appellant[s] may seek damages for annoyance and discomfort caused by such nuisance as a result of the maintenance of the nuisance. Damages for discomfort and annoyance are separate and distinct damages from any damage to realty. The measure of damages for discomfort, unhappiness, and annoyance is in the enlightened conscience of the jury.⁴

Here, the fact that the Wellers and their children may have had certain unrelated medical conditions that are exacerbated by smoke inhalation is irrelevant because “[t]he determining factor in an alleged nuisance is not its effect upon persons who are invalids, afflicted with disease, bodily ills, or abnormal physical conditions, or who are of nervous temperament, or peculiarly sensitive to annoyances or disturbances of the character complained of.” ⁵ Instead, the issue is whether the smoke that emanated from the Blakes' outdoor fireplace would cause hurt or damage to an ordinary, reasonable person.⁶

The Supreme Court of Georgia reviewed a claim for nuisance based on smoke in Holman v. Athens Empire Laundry Co.,⁷ in which the owner of a building containing offices, factories, and a café filed suit against a neighboring laundry company, alleging that the defendant's burning of soft coal created “a very black, dense smoke, which smoke is a nuisance....” ⁸ The burning of the soft coal created “dense volumes of black smoke,” which were blown directly into Holman's building, creating “inconvenience and discomfort” and depositing soot into the building, permanently damaging furniture and other contents.⁹ Holman sought to enjoin the defendant from burning soft coal, arguing that the defendant had an non-objectionable alternative fuel. ¹⁰ The Supreme Court held that whether the defendant's actions created a nuisance was a jury question, explaining that for smoke to constitute a nuisance,

it must be such as to produce a visible, tangible, and appreciable injury to property, or such as to render it specially uncomfortable or inconvenient, or to material[l]y interfere with the ordinary comfort of human existence. With respect to dwelling houses, ... [t]he rule is that the comfortable enjoyment of the premises must be sensibly diminished, either by actual, tangible injury to the property itself, or by the promotion of such physical discomfort as detracts sensibly from the ordinary enjoyment of life.” ¹¹

Here, the Wellers do not allege actual, tangible injury to their property. Instead, they allege that the smoke substantially aggravates, annoys, and inconveniences them, and it impairs their use and enjoyment of their property. The record, when construed in favor of the Wellers as the nonmovants,¹² shows that the Blakes had a fire in their outdoor fireplace approximately thirty times in a three-year period, and that each time, the Wellers could smell the smoke in their home and suffered from itchy eyes, headaches, scratchy throats, and breathing problems.¹³ On two or three occasions, the smoke was visible inside the Wellers' home. Several times, the Wellers either moved to a different part of their house or left their home altogether to avoid the smoke from the Blakes' fireplace. We conclude that this evidence was sufficient to create a jury question on the issue of whether the smoke from the Blakes' outdoor fireplace would reasonably interfere with an ordinary person's enjoyment of life.¹⁴ Therefore, the trial court erred by granting the Blakes' motion for summary judgment.

[315 Ga.App. 219]2. Negligence. The Wellers also contend that the trial court erred by granting the Blakes' motion for summary judgment as to their negligence claim.

The elements of a negligence cause of action are: (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a causal connection between the conduct and the injury; and (4) damages from the breach of duty. This legal duty may arise from the general duty one owes to all the world not to subject them to an unreasonable risk of harm. Negligence is conduct which falls below the standard established by law for the protection of others against this risk.¹⁵

Viewed in favor of the Wellers, we conclude that the evidence is sufficient to create a jury question as to negligence. Thus, the trial court erred by granting summary judgment on this claim.

3. The Wellers also argue that the trial court erred by granting summary judgment on their claims for punitive damages and attorney fees and expenses of litigation. We agree.

(a) Punitive Damages.OCGA § 51–12–5.1(b) provides:

Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

A continuing nuisance will...