Court of Appeals Reverses in Nuisance Case Against City of Atlanta

Although it’s sensible to believe a city may be held liable to failing to act when such failure results in the injury to one of its citizens, cities are often not as accountable for the injuries of citizens as many may think they are. Issues regarding municipal liability at the center of a recent decision from the Georgia Court of Appeals, City of Atlanta v. Demita, in which the court addressed a somewhat novel question regarding when a municipality may be held liable for maintaining a nuisance in the construction or upkeep of a municipal storm water drainage system.
The alleged nuisance at dispute in this litigation was located on a low-lying stretch of Oakridge Avenue in Atlanta, Georgia. In 2002, the plaintiff in this case purchased a newly constructed home located at this part of Oakridge Avenue. The street is owned and maintained by the city. The home was part of new fill-in construction in the area, and prior to this construction, water would run east to west across the street, which runs north to south. However, following construction, this home and the home across the street are at the thoroughfare’s low point, and water has pooled in the area during the duration of the plaintiff’s occupancy. There is no storm drain, sewer grate, manhole, retention pond, or catch basin on the street into which runoff water can drain. On days of heavy rainfall, water pools above the curb and overflows onto the plaintiff’s property, which has caused the property to sustain erosion, soil saturation, garage and crawlspace flooding, and other damage.

In 2003, the City of Atlanta’s Department of Watershed Management evaluated the flooding in the area and proposed various solutions. However, none of the proposed remedial solutions has yet been initiated. In light of this inaction, the plaintiff property owner brought suit against the City of Atlanta, arguing that the City had maintained a nuisance caused by its negligent construction and maintenance of its drainage system. Eventually the case was brought before a jury, which found in favor of the plaintiff and awarded $85,200 in damages, $88,800 in attorney fees, and $54,433.21 in litigation expenses. On appeal, the City argued that there was no evidence it created or maintained a nuisance, and thus, it was entitled to judgment as a matter of law, for which it had moved during trial but had been denied.
Despite a jury determination otherwise, the Court of Appeal unanimously found in favor of the City of Atlanta. As an initial matter, Georgia’s Tort Claim Act preserves municipalities’ sovereign immunity against claims of negligence in performing, or failing to perform, their governmental functions. See O.C.G.A. §§ 36-33-1. Accordingly, a municipality is generally not liable for failing to protect properties from water incursion when preventing such incursion falls within the exercise of discretionary rather than ministerial duty. See, e.g., City of Atlanta v. Kleber, 285 Ga. 413, 418-419 (3) (677 SE2d 134) (2009); Merlino v. City of Atlanta, 283 Ga. 186, 189 (2) (657 SE2d 859) (2008). However, an exception to the rule exists when the damage arises from the municipality’s operation or maintenance of a nuisance, see Albertson v. City of Jesup, 312 Ga. App. 246, 250 (1) (718 SE2d 4) (2011), including negligently constructing or maintaining a sewer or drainage system under its control that causes the repeated flooding of property, see Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121)(1996).
In the current case, the City argued that it could not be held liable for creating a nuisance because it did not construct a storm water drainage system to service the property and thus cannot be liable for maintaining a system that never existed. Although an expert hydrologist enlisted by the plaintiff argued that the City’s construction of curbs, gutters, and the street constitutes a drainage system for water, the court found this definition of a drainage system to be too expansive. Indeed, the court noted that if it were to accept the expert’s definition of a drainage system, the City would maintain a drainage system “simply by virtue of owning a street that is paved and … edged with curbs and performing maintenance on the street such as periodic repaving,” and thus “the City [would maintain] a sewer or drainage system on virtually every paved, curbing-edged, city-controlled street.” Accordingly, the City could not be charged with having created or maintained a nuisance drainage system. The plaintiff alternatively argued that liability for nuisance could still arise from water running off the city-owned streets. However, the court distinguished cases cited by the plaintiff because it “is not a case where the City’s conduct in maintaining a street diverted or changed the flow of water so that it flooded adjacent property.” Instead, “the builder placed new construction adjacent to an existing city street and natural forces did the rest.”
Although it seems odd that the City should benefit from doing nothing in the 10 years since it first examined this recurrent flooding, this case demonstrates the difficulty of finding a municipality liable when it fails to act. Indeed, given the limitations imposed by the sovereign immunity doctrine, municipalities can be held liable in only narrowly circumscribed situations. However, if you’ve experienced harm as a result of as a result of a governmental act or omission, there still may be some options for obtaining recovery. The Atlanta negligence attorneys at the Law Office of Terrence R. Bethune are experienced with bringing premises liability claims against governmental actors and are prepared to answer the questions you have. Contact us if you would like a free case evaluation.

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