PETREE v. GEORGIA DEPARTMENT OF TRANSPORTATION Et Al.
340 Ga. App. 694
| Ga. Ct. App. | 2017

Background

  • Petree sued DOT and Macon‑Bibb County after recurring flooding/erosion from a drainage ditch behind her lot, alleging negligence (planning/design/construction/maintenance), trespass, and nuisance; damages began ca. 2000.
  • Petree attached ante litem notices (June 2011 and July 2013) to her complaint.
  • DOT and County moved to dismiss: DOT raised sovereign immunity, statute of limitations, and untimely ante litem notice; DOT also argued that design/construction claims required an expert affidavit under OCGA § 9‑11‑9.1.
  • At the dismissal hearing the defendants introduced evidence (plats, engineer affidavit, correspondence, testimony); Petree objected that the County’s motion (a Rule 12(b)(6) motion) should be decided on the pleadings only.
  • Trial court relied on extrinsic evidence to dismiss all claims against DOT and County (finding the ditch “natural,” that nuisance was permanent with accrual ca. 2002, and that DOT had no duty to maintain). Petree appealed.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether trial court could consider extrinsic evidence when ruling on County’s Rule 12(b)(6) motion Petree: Court erred by considering evidence outside pleadings without converting motion to summary judgment or giving 30 days to respond County: Introduced plats/affidavits to support dismissal Court: Reversed as to County — trial court improperly considered extra‑pleading evidence without conversion/notice; dismissal against County reversed on that ground
Whether OCGA § 9‑11‑9.1 expert affidavit was required for ordinary negligence claims Petree: No expert affidavit required for ordinary negligence (maintenance) claims DOT: Some negligence claims (design/construction) require expert affidavit Court: Agreed with Petree — affidavit required only for professional/design negligence; ordinary maintenance negligence does not require expert affidavit
Whether DOT entitled to sovereign immunity re: maintenance, nuisance, trespass Petree: DOT not immune for ordinary negligent maintenance; timely ante litem shown DOT: Sovereign immunity and GTCA limits/ante litem/limitations bar claims; no duty to maintain after 1998 Court: Affirmed dismissal as to DOT — Petree’s counsel conceded at hearing DOT took no actions affecting ditch after 1998, so Petree waived challenge; DOT properly dismissed for lack of liability
Whether trespass/nuisance claims were time‑barred because nuisance was permanent (limitations/ante litem) Petree: Trial court erred relying on extrinsic evidence to label nuisance permanent; allegations support continuing nuisance and tolling Defendants: Ditch is natural/permanent; damage observable by 2002 so claims barred Court: Reversed dismissal as to County — designation of permanent nuisance based on outside evidence was improper and record did not conclusively show permanence; claims against County for continuing nuisance/trespass can proceed; nuisance/trespass against DOT affirmed dismissed due to counsel concessions

Key Cases Cited

  • Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750 (motion to dismiss standard; treat allegations as true)
  • Sadler v. Dept. of Transp., 311 Ga. App. 601 (Rule 12 review; expert proof requirement for design claims)
  • Campbell v. Ailion, 338 Ga. App. 382 (liberal notice pleading rule)
  • Marietta Properties v. City of Marietta, 319 Ga. App. 184 (court may consider jurisdictional evidence on 12(b)(1) matters)
  • Morrell v. Wellstar Health Sys., 280 Ga. App. 1 (consideration of materials outside pleadings converts 12(b)(6) to summary judgment)
  • Ezeoke v. FIA Card Servs., N.A., 320 Ga. App. 73 (documents attached to complaint must be incorporated to be considered on 12(b)(6))
  • Carter v. VistaCare, LLC, 335 Ga. App. 616 (notice/30‑day rule when converting to summary judgment)
  • Cox Enterprises v. Nix, 273 Ga. 152 (same principle re conversion notice)
  • Drawdy v. Dept. of Transp., 228 Ga. App. 338 (no expert affidavit required for ordinary negligence maintenance claims)
  • Ga. Dept. of Transp. v. Crooms, 316 Ga. App. 536 (GTCA immunity limits for certain claims; relevance to design claims)
  • Fielder v. Rice Constr. Co., 239 Ga. App. 362 (county liability for trespass/nuisance inverse condemnation damages)
  • Stanfield v. Glynn County, 280 Ga. 785 (county inverse condemnation/nuisance liability follows Georgia law)
  • Liberty County v. Eller, 327 Ga. App. 770 (four‑year statute for inverse condemnation based on trespass/nuisance)
  • Oglethorpe Power Corp. v. Forrister, 289 Ga. 331 (permanent vs. continuing nuisance accrual rules)
  • Merlino v. City of Atlanta, 283 Ga. 186 (diversion of water can be trespass)
  • City of Columbus v. Myszka, 246 Ga. 571 (continuing nuisance from diverted water upheld)
  • Hibbs v. City of Riverdale, 267 Ga. 337 (continuing nuisance from negligent maintenance of drainage/sewer)
  • Rinzler v. Folsom, 209 Ga. 549 (distinction trespass vs nuisance)
  • J. D. Jewell, Inc. v. Hancock, 226 Ga. 480 (nuisance may arise from lawful act causing harmful consequences)
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