A municipality is protected by governmental immunity from suit for negligence, but as an exception to its immunity, a municipality is liable for damages resulting from operating
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County,
Construed in favor of Atkinson, the record shows that on April 11, 2007, a water main broke next to Atkinson’s property located at 605 West Wesley Road in Atlanta, which caused a substantial amount of water to flood Atkinson’s yard, thereby damaging Atkinson’s yard, trees, shrubs, driveway, and 35 feet of an ornamental fence. The City of Atlanta was notified, responded that night, and began efforts to stop the flow of water and repair the water main. Although the City did not stop the water flow the first night, Atkinson could not recall how long it took. Atkinson’s yard was covered with debris from the event, including two downed magnolia trees. The water dug out a large pit (30 feet x 40 feet and 5 to 6 feet deep) and settled on the north side of his house and on his neighbor’s property. Atkinson testified, “we literally had a lake out there for quite some time.” When further questioned, Atkinson did not recall how long the water was present, but he stated that the water had “completely subsided” before he met with William Brigham, a city official, about the incident, which he described as happening “several days” after the incident. Other evidence in the record shows that by April 16, 2007, only five days after the incident, Brigham had completed an assessment of the work needed to repair Atkinson’s property to its original condition. And that document, upon which Atkinson relies, states that Brigham visited the site on April 12 and 13, 2007.
The City eventually filled in the large pit and repaired the fence, but Atkinson does not recall when the fence was repaired. The two downed trees were removed, but Atkinson does not recall who removed them. Atkinson had the driveway and the yard repaired himself. The trees and shrubs have not been replaced. During the time that the fence was down, some cars from Northside Drive would occasionally drive through his property to make a right-hand turn onto West Wesley Road. Because Atkinson was not satisfied with the City’s pace of addressing the damage on his property, on August 15, 2007, he filed a claim with the City.
After the City denied his claim, Atkinson filed suit in the State Court of Fulton County against the City and a contracting company, asserting claims of nuisance, negligence and breach of contract.
(1) the failure of the City to respond in a timely manner to the leaking water main, resulting in Plaintiff’s yard, fence, trees, shrubs, and driveway [having] sustained extensive water damage; and (2) the failure of the City to respond in a timely manner to repair the damage resulting from the water main leak, resulting in the creation of a hazardous and dangerous condition affecting Plaintiff’s property for an extended period of time.
Finally, at oral argument, Atkinson’s counsel added:
[O]ur claim is that the nuisance arises from not the mere fact of the water main break, but the fact that the city, which had a duty to maintain and repair that water main after its break, the fact that the city did not do that in a timely manner.
(Emphasis supplied.)
A municipality is protected by sovereign immunity from liability for negligence while exercising its governmental function. Hibbs v. City of Riverdale,
The Supreme Court of Georgia has explained that to be held liable for maintenance of a nuisance,
the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and, if the municipality did not perform an act creating the dangerous condition, . . . the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.
(Citations and punctuation omitted.) Palmerio,
[T]he defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition.
(Footnote omitted.) Hibbs,
(a) Applying the above guidelines to this case, we first find that Atkinson has not
(b) Next, we hold that Atkinson has failed to show that the City operated or maintained a nuisance on his property. The water main break occurred only once and caused only one incident of flooding on Atkinson’s property. In City of LaGrange v. Whatley,
The present case is similar to Goode v. City of Atlanta,
Here, although the water ponded on Atkinson’s property initially, Atkinson admits that the water had completely subsided by the time he met with Brigham, only “several” days after the incident about clean up efforts on his property. Thus, Atkinson has not presented any evidence to show that the City performed “a continuous or regularly repetitious act, or creat[ed] a continuous or regularly repetitious condition.” See Palmerio,
(c) Finally, Atkinson contends the City maintained a nuisance on his property by delaying or failing to repair for many months the damage caused by the initial flow of water onto his property. Atkinson’s argument conflates the idea of nuisance with the damage resulting from the initial flow of water, be it a nuisance or a trespass. Atkinson took it upon himself to have his driveway and yard repaired. Likewise, he could have had his fence repaired and replaced any lost trees, shrubs, and bushes, as he was obviously free to do, and sought recompense from the City for his expenses. What Atkinson has not shown is that the City had a proactive duty to repair in a timely manner all the damage to his property rather than compensate Atkinson for his damages. Thus, under the facts in this case, Atkinson’s own failure to take action cannot be converted into a nuisance claim against the city for delay in mending his fence and effecting other repairs. Cf. Ethridge v. City of Lavonia,
In sum, the trial court correctly granted summary judgment in favor of the City of Atlanta on Atkinson’s claim of nuisance.
Judgment affirmed.
Notes
There have been no other water main breaks affecting Atkinson’s property.
It appears that the suit is a renewal action.
Atkinson relies in part on the deposition of William Brigham, but the record does not contain a transcript of that deposition, and Atkinson’s citation to Brigham’s testimony is actually a citation to Atkinson’s brief in the trial court. Atkinson also relies on a series of e-mails between Brigham and other City officials, but those e-mails are only attached as exhibits to Atkinson’s response to the City’s motion for summary judgment. They are not authenticated in any manner.
The deposition of Brigham and the e-mail evidence are not properly before this court. First, “[ojnly admissible evidence may be considered when evaluating a motion for summary judgment.” (Punctuation and footnote omitted.) Nyankojo v. North Star Capital Acquisition,
[t]he admissibility of evidence on motion for summary judgment, whether contained in affidavits or otherwise, is subject to the rules relating to the admissibility of evidence generally, so that evidence inadmissible on a hearing of the case would generally be inadmissible on motion for summary judgment.
(Citation and punctuation omitted.) Lance v. Elliott,
Under OCGA § 41-1-1, a nuisance is defined as “anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance.” This statutory definition, however, “was not intended to change the common law definition of a nuisance.” State ex rel. Boykin v. Ball Investment Co.,