Weller v. Blake
315 Ga. App. 214
| Ga. Ct. App. | 2012Background
- Wellers live next to Blakes in Cobb County; Blakes built an outdoor fireplace in June 2008 with a ~10-foot chimney about 30 feet from the Wellers' window.
- Blakes obtained HOA approval before construction and later secured a building permit after construction.
- Wellers allege wood smoke fills their yard and home with a strong odor and visible haze; they report discomfort and coughing, eye irritation, and breathing issues.
- Wellers' children have allergies and croup; pediatrician advised wood smoke is not good for children.
- Blakes reduced some practices after complaints, using hardwoods and Duraflame logs, smaller fires, and wind-adjusted use; inspector found the fireplace suitable for burning.
- Two of three Wellers’ children have health issues make them more susceptible to smoke, but no medical treatment was sought for smoke exposure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nuisance elements from smoke | Wellers claim nuisance by smoke causing discomfort and interference with enjoyment of property | Blakes argue no substantial interference or tangible injury; use is lawful | Nuisance issue for jury |
| Negligence standard | Blakes owed duty to avoid unreasonable smoke intrusion; breached by continuing use after complaint | Blakes took mitigation steps; no duty breach shown as a matter of law | Jury question on negligence |
| Punitive damages viability | Continuing nuisance and disregard after complaint supports punitive potential | Attempts to limit smoke negate willful misconduct | Jury question on punitive damages |
| Attorney fees under OCGA 13-6-11 | Bad faith and unnecessary trouble due to nuisance justify fees | No clear bad faith shown as a matter of law | Jury question on attorney fees |
Key Cases Cited
- Holman v. Athens Empire Laundry Co., 149 Ga. 345, 100 S.E. 207 (1919) (smoke nuisance requires substantial interference with dwelling enjoyment)
- Warren Co. v. Dickson, 185 Ga. 481, 195 S.E. 568 (1938) (nuisance evidence supports damages for discomfort and annoyance)
- Tyler v. Lincoln, 272 Ga. 118, 527 S.E.2d 180 (2000) (conscious indifference and nuisance can support punitive damages)
- Baumann v. Snider, 243 Ga.App. 526, 532 S.E.2d 468 (2000) (conscious indifference may justify punitive damages in nuisance cases)
- Nichols v. Main Street Homes, 244 Ga.App. 591, 536 S.E.2d 278 (2000) (malice or bad faith evidence for attorney fees from nuisance)
- Davis v. Overall, 301 Ga.App. 4, 686 S.E.2d 839 (2009) (some nuisance damages and related considerations cited)