329 Ga. App. 33
Ga. Ct. App.2014Background
- Demita sues City of Atlanta in Fulton County for property damage from alleged stormwater nuisance.
- Jury awards Demita damages, attorney fees, and litigation expenses; City appeals alleging no evidence of nuisance creation or maintenance.
- Court reviews directed verdict/ JMOL de novo in favor of verdict if any conflict in evidence; not proper without conflicting evidence.
- Georgia immunity: municipalities are generally immune from negligence in governmental functions, but may be liable for maintenance of a nuisance in some circumstances.
- Evidence shows no city-built or city-maintained drainage system for Demita’s property; water pooling is in a low street point without city-installed basins or drains.
- Court reverses, holding no maintenance of a nuisance under either theory presented by Demita; City not liable; moot remaining issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City maintained a nuisance through its drainage system. | Demita argues City maintained a nuisance via street drainage. | City argues no drainage system under its control; no maintenance of a nuisance. | No; no evidence of maintained nuisance. |
| Whether water runoff from city streets constitutes a nuisance despite lack of system ownership. | City streets themselves can be a drainage system causing nuisance. | Maintaining a street alone does not establish nuisance responsibility. | Not liable under this theory. |
| Whether evidence supports liability under continuing or abatable nuisance standard. | Hydrologist's view of streets as drainage system supports liability. | Jury should rely on narrow definition; no continuous act by City. | Insufficient evidence of continuous maintenance creating nuisance. |
Key Cases Cited
- City of Atlanta v. Kleber, 285 Ga. 413 (2009) (limits liability where city owned/controlled drainage not shown; runoff not enough)
- Merlino v. City of Atlanta, 283 Ga. 186 (2008) (no liability without evidence city owned/maintained drainage pipes)
- Hibbs v. City of Riverdale, 267 Ga. 337 (1996) (continuing abatable nuisance when city maintains sewer/drainage causing repeated flooding)
- Bass Canning Co. v. MacDougald Constr. Co., 174 Ga. 222 (1932) (maintaining sewerage drainage system usually immune; exception for nuisance)
- City of Columbus v. Barngrover, 250 Ga. App. 589 (2001) (drainage system channeling water under homeowners’ property can create nuisance)
- Mayor of Savannah v. Palmerio, 242 Ga. 419 (1978) (municipal immunity with duty to act for dangerous conditions; knowledge of dangerous condition)