335 Ga. App. 18
Ga. Ct. App.2015Background
- Hillmans sued neighbors Bord and Bondar alleging increased runoff and property damage after Bord/Bondar’s work; Bord and Bondar answered and counterclaimed that a retaining wall built by the Hillmans caused water to back up and flood their basement and yard.
- Bord and Bondar’s expert hydrologist (Baltz) modeled pre‑ and post‑wall pooling for 25‑ and 100‑year storm events and found a measurable increase in pooled depth after the wall; he also opined the wall altered flow patterns between the properties.
- Bord and Bondar offered personal observations that their basement flooded twice since the wall and that the wall was causing water to remain on their property.
- Hillmans’ expert (Groszmann) reviewed Baltz’s work, agreed the 25‑year calculations were appropriate, characterized any increase as “negligible and insignificant,” and opined the pooled depths would still be below the house grade.
- The trial court granted the Hillmans’ motion for partial summary judgment as to all counterclaims related to the retaining wall, concluding Bord and Bondar failed to raise a material fact on causation; Bord and Bondar appealed.
- The Court of Appeals reversed, holding the evidence (experts + observations) was sufficient to create a jury question on causation for nuisance, negligence, negligence per se, injunctive relief, punitive damages, and attorney fees.
Issues
| Issue | Plaintiff's Argument (Bord/Bondar) | Defendant's Argument (Hillman) | Held |
|---|---|---|---|
| Whether the retaining wall was cause in fact of damage and interference with property use | Baltz’s modeling and testimony that the wall increased pooling and altered flow, plus plaintiffs’ observations, show the wall caused increased water on their land | Any measured increase was negligible and pooled water remained below the house grade, so no causal connection to damage | Reversed: expert opinion + observations suffice to create a jury question on causation; summary judgment improper |
| Whether personal observations alone can raise a fact issue on causation | Observations of flooding and statements linking floods to the wall support causation | Personal observations are insufficient without expert proof | Court did not decide whether observations alone suffice; held expert opinion combined with observations is sufficient to preclude summary judgment |
| Whether an increase in pooled water below house grade negates causation | Any artificial increase or concentration of water can be actionable; damage includes loss of enjoyment beyond basement flooding | Because modeled pooling remained below house grade, wall could not have caused the basement flooding, undermining causation | Court: elevation relates to damages, not causation; increase in pooling is evidence of causation for claims beyond house interior damage |
| Whether portions of Groszmann’s affidavit contradict his deposition (Prophecy rule) | Plaintiffs argued affidavit contradicted deposition and should be disregarded | Hillmans relied on affidavit; Groszmann is non‑party expert and his statements do not self‑contradict | Court: Prophecy rule inapplicable to non‑party witness; no direct contradiction found; affidavit may be considered |
Key Cases Cited
- Clark v. City of Atlanta, 322 Ga. App. 151 (review of summary judgment is de novo)
- Rice v. Six Flags Over Georgia, LLC, 257 Ga. App. 864 (nuisance requires showing injury caused by the nuisance)
- Alexander v. Hulsey Environmental Svcs., Inc., 306 Ga. App. 459 (proximate cause requires reasonable basis to find defendant’s conduct was cause in fact)
- Sprayberry Crossing Partnership v. Phenix Supply Co., 274 Ga. App. 364 (existence of proximate cause is generally a jury question)
- Woodmen of the World v. Jordan, 231 Ga. App. 517 (damages for nuisance include loss of enjoyment and annoyance)
- Hammond v. City of Warner Robins, 224 Ga. App. 684 (opinion evidence can defeat summary judgment on nuisance)
- Greenwald v. Kersh, 265 Ga. App. 196 (artificial increase or concentration of water discharge may give rise to action)
- Mallard v. Pye, 215 Ga. 645 (same principle regarding runoff and liability)
- Payne v. Carson, 215 Ga. App. 253 (surface‑water invasion compensability is fact question for jury)
- Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (self‑contradictory sworn testimony of a party may be construed against that party)
- CSX Transp., Inc. v. Belcher, 276 Ga. 522 (Prophecy rule does not apply to non‑party witness testimony)