334 Ga. App. 148
Ga. Ct. App.2015Background
- Tony and Flenard Rowland own adjacent properties on MLK Drive in Greensboro, GA; a City drainage project (CDBG-funded) expanded drainage piping through their land.
- Rowlands allege the Project increased flood flow onto their lots, causing ongoing flooding, environmental/sanitation problems, devaluation, and a taking of property.
- The City obtained easements from other properties for the drainage apparatus but not from the Rowlands and did not compensate them.
- The Rowlands sued for inverse condemnation, trespass, nuisance, and intentional tort; punitive damages were dismissed below but other claims remained.
- The City moved to dismiss for lack of waiver of sovereign immunity and for failure to provide timely ante litem notice under OCGA § 36-33-5; the trial court denied the motion and the City appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sovereign immunity bars Rowlands' inverse condemnation/nuisance claims | Rowlands: constitutional takings/continuing nuisance by City drainage so immunity is inapplicable | City: municipalities retain sovereign immunity absent statutory waiver; dismissal warranted | Court: Constitutional takings/continuing nuisance claims avoid sovereign immunity; denial of dismissal affirmed |
| Whether ante litem notice under OCGA § 36-33-5 was timely and sufficient | Rowlands: letters (Sept 16 and Oct 11, 2013) put City on notice of ongoing flooding, location, and taking; substantial compliance met | City: letters lack specific single-event date; so cannot show notice within six months of event | Court: For continuing trespass/nuisance, exact event date not required; letters substantially complied and limited recovery to damages within six months before notice |
Key Cases Cited
- Ga. Dept. of Natural Resources v. Ctr. for a Sustainable Coast, 294 Ga. 593 (Ga. 2014) (clarifies constitutional waiver of sovereign immunity for takings)
- City of Atlanta v. Mitcham, 296 Ga. 576 (Ga. 2015) (discusses municipal immunity and OCGA § 36-33-1 distinction between governmental and ministerial functions)
- City of Thomasville v. Shank, 263 Ga. 624 (Ga. 1993) (recognizes municipality liability for creating/maintaining nuisances constituting takings)
- Columbia County v. Doolittle, 270 Ga. 490 (Ga. 1999) (eminent domain provision waives immunity in inverse condemnation actions)
- Hibbs v. City of Riverdale, 267 Ga. 337 (Ga. 1996) (municipality liable where negligent sewer/drainage maintenance causes repeated flooding)
- Owens v. City of Greenville, 290 Ga. 557 (Ga. 2012) (ante litem notice need only put municipality on general character, time, place, extent of injury)
- City of Chamblee v. Maxwell, 264 Ga. 635 (Ga. 1994) (continuing trespass/nuisance gives rise to daily new causes of action; notice limits recovery to damages within six months prior to notice)
- Simmons v. Mayor & Aldermen of City of Savannah, 303 Ga. App. 452 (Ga. Ct. App. 2010) (OCGA § 36-33-5 requires only substantial compliance)