Oglethorpe Power Corp. v. Forrister
289 Ga. 331
| Ga. | 2011Background
- Sewell Creek Energy Facility is a peaking power plant operated by Oglethorpe Power Corporation and Smarr EMC starting in 2000.
- Neighbors filed suit in 2007 alleging excessive noise, vibrations, and interference with use and enjoyment of their property.
- Trial court denied summary judgment, finding factual questions on abatement and the timing of nuisance.
- Court of Appeals affirmed denial of summary judgment in part, with a split panel on abatement at slight expense.
- Georgia Supreme Court granted certiorari to determine when the statute of limitations begins for a nuisance claim against a public utility.
- Court held the nuisance is a permanent nuisance due to a substantial and enduring feature of construction/operation, limiting damages to one action, but with a potential separate claim for new harm observable within four years prior to filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the statute of limitations begin for a public-utility nuisance? | Plaintiffs argue continuing nuisance notion bars only partial, not all-time limits. | Defendants contend plaintiff is barred by four-year limit for permanent nuisance from plant operation. | Permanent nuisance; single damages action barred unless new harm observed within four years. |
| Is Sewell Creek noise a permanent or continuing nuisance? | Nuisance is abatable and may be ongoing; damages accrue for ongoing harm. | Nuisance arises from a substantial enduring feature of operation and cannot be abated without major reconstruction. | Nuisance is permanent due to enduring feature of construction/operation; abatement not feasible without substantial disruption. |
| Can nuisance abatement occur at slight expense for timing purposes? | Maintenance or abatement could be achieved at slight expense, creating continuing nuisance. | Some features cannot be abated at slight expense; abatement would require major reconstruction. | Only abatable nuisances (slight expense) support continuing nuisance; enduring features are not abatable thus permanent. |
| What role do Restatement §899 and §930 play in this case? | Restatement provisions support continuing or abatable nuisance analysis for public utilities. | Restatement supports treating enduring features as permanent and limiting actions to one remedy. | Restatement guidance adopted: enduring features yield single action; new observable harm within four years may permit damages. |
Key Cases Cited
- Kleber v. City of Atlanta, 285 Ga. 413 (2009) (defines permanent vs. continuing nuisance; abatable vs. enduring features; Restatement §930 guidance)
- Bainbridge Power Co. v. Ivey, 41 Ga.App. 193 (1930) (permanent nuisance concept; enduring character)
- Cox v. Cambridge Square Towne Houses, 239 Ga. 127 (1977) (Restatement guidance on nuisance abatement and timing)