Ingles Markets, Inc. v. Kempler
317 Ga. App. 190
Ga. Ct. App.2012Background
- Lynn Kempler and Gary Kempler sued Ingles Markets, Inc. and Ingles Acquisition of Georgia, LLC for trespass, nuisance, negligence, attorney fees, and punitive damages over storm water runoff from the Appellants’ property.
- The jury returned a verdict for the Kemplers; the trial court approved the verdict and judgment.
- Development by the Appellants added 26 acres of impervious surfaces, increasing runoff fourfold to the Kemplers’ land.
- Evidence showed erosion, blocked access, damaged pond ecology, and diminished property value; testimony cited costs to repair and protective measures totaling roughly $600,000-plus.
- The jury apportioned fault: 40% to the Appellants for negligence, 80% for nuisance, and 80% for wounded feelings; damages included $400,000 for negligence, $150,000 diminution in value, $300,000 to protect the property, and $125,000 for emotional distress.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nonparty fault instruction | Statute requires considering fault of all nonparties; no timely notice required to be considered. | Subsection (d) limits consideration unless notice is provided; instruction misread statute. | Trial court properly instructed; statute intended broader consideration, but notice mechanism provides the limit; no reversible error. |
| Double recovery and damages allocation | Combination of diminution in value and cost of repair/mitigation is permissible to make party whole. | Diminution in value and repair costs cannot be duplicatively recovered; must avoid double recovery. | Diminution in value and costs to protect/repair may be awarded together where appropriate; verdict form prevented duplicative recovery. |
| Mistrial due to witness testimony | Mistrial request should be granted due to improper testimony. | No preserved objection; issue waived. | Argument waived for lack of contemporaneous objection. |
| Directed verdict against Ingles Acquisition | Evidence shows Ingles Acquisition caused nuisance and negligence. | Insufficient evidence of acts/omissions by Ingles Acquisition. | Court denied directed verdict; evidence supported jury questions on duty and breach. |
| Liability apportionment between Ingles Markets and Ingles Acquisition | Joint defense argument at trial misled jury about separateness of entities. | Closing took advantage of joint framing; invited error. | Appellants waived the argument by trial tactics; no reversible error in verdict entry. |
Key Cases Cited
- Turner Broadcasting System v. McDavid, 303 Ga. App. 593 (Ga. App. 2010) (serves as comparative evidentiary and procedural authority in appellate review)
- McReynolds v. Krebs, 307 Ga. App. 330 (Ga. App. 2010) (evaluates fault, damages, and causation in appellate context)
- McDavid, 303 Ga. App. at 609, 303 Ga. App. 593 (Ga. App. 2010) (illustrates invited error and trial tactics as waiver bases)
- Monterrey Mexican Restaurant &c. v. Leon, 282 Ga. App. 439 (Ga. App. 2006) (double recovery concerns and punitive damages guidance)
- Royal Capital Dev. v. Maryland Cas. Co., 291 Ga. 262 (Ga. 2012) (damages for diminution in value and restoration costs; compensatory approach)
- City of Gainesville v. Waters, 258 Ga. App. 555 (Ga. App. 2002) (measure of damages for nuisance as enlightened conscience of jury)
- Sumitomo Corp. &c. v. Deal, 256 Ga. App. 703 (Ga. App. 2002) (summary-judgment-like guidance; general rule for damages)
- Gilliam v. State, 240 Ga. App. 158 (Ga. App. 1999) (contemporaneous objections and preserved error concerns)
- Sweeney v. State, 233 Ga. App. 862 (Ga. App. 1998) (general appellate caution on error preservation)
- Le Twigge, Ltd. v. Wammock & Co., 187 Ga. App. 446 (Ga. App. 1988) (principles on appellate review and waiver)