*1 totaling presented $32,692.64 Wachovia Bank that three items on attorney Harris’s trust account had been returned insuffi- corresponded cient funds. The OGC’s Overdraft Coordinator Harris. Harris claimed the overdrafts resulted from theft employee. provide requested However, he failed to written support April 16, documentation to accepted such a claim. On Harris Investigation. respond, service of a Notice of Harris did not provided supporting August and he no documentation his claims. On suspended practice 7, 2008, this Court Harris from under Bar Rule (d). subsequently Discipline. 4-204.3 The State Bar filed the Notice of aggravating We find no factors in this Nevertheless, case. we agree appropriate with the State Bar that disbarment is the disci- pline. Accordingly, hereby the name of David A. Harris is removed attorneys practice from the roll of authorized to law the State of Georgia. We remind Harris of his duties under Bar Rule (c). 4-219 All
Disbarred. the Justices concur. May 18,
Decided 2009. III, Bar,
William P. Smith General Counsel State Jonathan W. Hevuett, Bar, Assistant General Counsel State for State Bar of Georgia.
S08G1417, S08G1424. CITY OF ATLANTAet al. v. KLEBER et al.
(two cases).
MELTON, Justice. negligence
These consolidated cases concern a nuisance1 and brought by Nancy (collectively action Scott Kleber and Habif re- homeowners”) Corpora- ferred to as “the tion and the contended that Norfolk and the Norfolk Southern action, of Atlanta. In this had failed to maintain property, resulting and culvert near their their being during heavy City Atlanta, home flooded rains. In Kleber v. hurt, inconvenience, anything A nuisance is that causes to another and may keep being the fact that the act done otherwise be lawful shall not it from fanciful, complained nuisance. The inconvenience of shall not be or such as would taste, only ordinary, affect one of fastidious but it shall be such as would affect an reasonable man. §
OCGA 41-1-1. *2 (2008), Appeals App. the Court of judgment grant summary to Norfolk and of
reversed the trial court’s among things, City, finding, about which that the nuisance the other complained and, in nature as a was the homeowners four-year statute was not barred the result, the homeowners’ suit § granted to consider 9-3-30. We certiorari See OCGA of limitations. (1) concluding Appeals that erred whether the Court two issues: respect presented to their triable issues with homeowners the (2) negligence whether the Norfolk and and nuisance claims presented concluding Appeals that the homeowners erred Court City. respect the their nuisance claim issue with to a triable below, we reverse. reasons set forth For the that, 1800s, in the late Norfolk installed The record shows eventually abutting property would be owned tracks that railroad point, later. At some at least almost two centuries ago, a culvert and a 36-inch brick Norfolk also installed four decades time, At that the culvert under the tracks. large adequate pipe 37-acre basin which to drain the pipe property and culvert have been main- sits. The properly years, the evidence shows that are over the tained currently proper working debris, intact, and in order. clean of during purchased and moved into their home The homeowners experi- During heavy rains, the homeowners the summer of 1997. moving property flooding in, and, several months after on the enced City, they relayed problem Norfolk and the the latter their to both connecting pipe pipe placed onto Norfolk’s that directed which had Approximately six overflow culvert.2 runoff to a combined sewer years May 16, 2003, the homeowners incurred substantial later, on following flooding property damage particularly heavy of their home again Norfolk rain. The homeowners contacted request City, fix the that Norfolk and and the flooding problem but their granted. response, homeowners filed not was (1) contending Norfolk was 28, 2004, that: this action on October liable for negligence was too and nuisance because the (2) was liable for runoff and small to nuisance for and connection handle failing adequately maintain the storm to construct and including drainage system surrounding properties, its in the pipe.3 to Norfolk’s pipe City’s Creek to an additional that leads to the Clear The Norfolk is connected (CC-CSO). CC-CSO, Prior to the construction of the
combined sewer overflow culvert pipe emptied into Clear Creek. Norfolk’s developer litigation Although was sold to a the section of land involved subsidiary ownership part project, retained the “Belt Line” Norfolk’s December 2004 as a tracks, roadbed, appurtenances. of the railroad and all associated railroad regard operative underlying With to case, facts parties agreed findings court-appointed to be bound of a special Among things, special master. other master determined prone the homeowners’ because ultimately Norfolk’s “36-inch basin, drains the in which large enough empty located, the residence is is not that basin creating backup ponding without of storm water in the basin.” noted, however, that the 36-inch had been *3 years maintained that, over the and at the time that it was probably installed, “this was sized to accommodate the flow drainage many ago.” from the basin as it existed decades He further that, noted at installed, the time that the was the practice pipes standard for called much smaller than those installed today. deposition subsequent regarding report, special In a his explained stating observation, this it was correct to presume “[w]hen originally constructed in- or time[.] stalled, it dealt with the conditions that existed at the . . . The design for the when it was done at that time on was based special conditions that existed at that time.” The master further City’s determined that the connection to Norfolk’s did backup Finally, not increase the of water onto the homeowners’ land. special that,
the pipe master found over the decades since the development surrounding property, installed,
had been impervious absorp- which included the installation of areas to water flowing tion, had increased the runoff into the where basin property deposition regarding report, rests. At his his your investigation any- the thing master was asked: “Did reveal frankly, any
that Norfolk or, Southern and the of Atlanta of the other owners the area had done that increased response, flow of surface water onto the Kleber residence?” In special master indicated that he believed that the increase was due to development properties, of other not actions Norfolk or the City. opined: years He “Over the there have been increases to house you maybe driveways patios, you sizes, know, added, whatever, know, creating impervious thereby generating area, a more more runoff into the basin.” fully agree matter,
1. As an initial we cannot with the Court of Appeals’ type determination that the of nuisance in issue this case wholly continuing making determination, we must look both to our case law and the Restatement of Torts.4 previously We have held: approach dealing continuing compre- The Restatement’s to nuisances is both workable, although appears adopted by any hensive and it never have been alleged nature of an nuisance
The classification directly will the statute of limitations the manner which controls underlying applied claim. be character, the in its nuisance,
A being complete upon at once or destruction completion gives created, the nuisance is of the act which upon immediately right action, one which accrues nuisance, and which the statute creation limitations begins, time, from that to run. Where a nuisance can and character, in its but is one which is not maintaining person erecting it, should be abated every nuisance is a fresh nuisance continuance of the the time will lie. This action accrues at which a fresh action limitations continuance, and it the statute of of such only the time of such accrual. runs omitted.) (Citations Augusta Lombard, 101 Ga. Council of *4 (28 994) (1897). 724, 727 SE Boyd, App. Augusta 70 Ga. In Council v. of (1944), plaintiffs filed a nuisance action improper by City Augusta’s damages of for caused Council adjacent open drainage ditch to their maintenance of an property. sewer characterizing one, the the nuisance as a Appeals of held: Court complained case, the im- of the instant
The nuisance proper ditch, one, is not a maintenance city any by time, which can be abated at but rather one wrong injury com- is remediable. The nuisance and the presence plained ditch, not in the mere of does consist manner in which it is maintained. Id. at 688. appear complain to both about the case,
In this pipe, arguing presence and that were mere of the culvert improperly To the installed, as their maintenance over time. as well complain presence that the mere creates extent that the homeowners improper installation, their nuisance claim is a nuisance due to presently barred the statute of nature and application jurisdiction, of our cases reveals that its would decision in this a review approach appears produced to be the the same results. The Restatement have adopt general rule and we it. (Citation omitted.) Houses, Square Cambridge 128-129 Towne Cox 73) (1977). supra, Lombard, limitations. See event, Ga. at 727. In opined the culvert and ago, and, installed decades adequately installation, at the time of the structures drained the hand, On the other the extent the homeowners contend that the culvert and properly maintained, have not been their nuisance They claim is are, therefore, allowed to contend that Norfolk’s maintenance of the culvert within years preceding the four their lawsuit created a nuisance. (Second) § supports
The Restatement of Torts these classi- There, c, fications. in comment it states:
Damage neighboring frequently landowners is incident to operation employed the construction and of establishments necessary public nominally right service, which have the taking railway land eminent domain. A embankment inadequate upon nearby with an land; culvert diverts water municipal plant electric sends smoke and fumes into city sewage disposal system pollutes factories; homes and injury bordering a stream to.the landowners. If damage results some minor construction or from feature of management, slight expense, so that it could be averted at remedy past normal successive actions invasions or by injunction available, would alone be as is also true relief improper unnecessary the harm results if operation. method But the invasions are caused some if *5 relatively enduring plan substantial and the feature of operation, construction or an essential method then usually by injunction it will ability not be abatable and the desir- granting injured person complete compensa- past apparent. tion for and future invasions is
(Emphasis supplied.) Contrary holding Appeals,
2. to the of the Court of the home- present respect negli- owners failed to triable issues with to their gence against regard and nuisance claims Norfolk. With to their negligence claim, the homeowners have failed to show that Norfolk any duty has breached owed to them based on the facts of this case. contrary, special report,
To the in accordance with the master’s it presumed drainage must be that the culvert and ditch installed ago properly Norfolk decades drained water from the at the they properly installed, time that and Norfolk has maintained in the record that Norfolk Therefore, there is no evidence
them.5 pipe, drainage negligently and built or maintained the culvert subsequent any has taken no evidence that Norfolk there is also the homeowners’ increase the flow of water onto action to surrounding neighborhood Changes topography not in the of the duty change any new did not create caused Norfolk drainage pipe. properly-installed parameters ditch and Like- regard claim, the homeowners have wise, to their nuisance with nuisance either from the that Norfolk created a failed to show improper or from their of its culvert and installation drainage pipe. regard improper With maintenance of that culvert pipe above, culvert, discussed and as the installation nature, and it is barred nuisance claim is special Moreover, this of limitations. the statute pipe presumed specifically should be found that the culvert and case flowing designed into the basin at to handle the runoff to have been presented have no installation. The homeowners the time of their any presumption Therefore, kind. it evidence to counter pipe and culvert that Norfolk’s construction of the cannot be said contrary, appears Norfolk’s actions To the it created a nuisance. may pipe, adjoining property, as the culvert benefit may acknowledged by special master, which allow Likewise, maintenance of the has occur. Norfolk’s not otherwise not created a special subsequent The master found that nuisance. good working clogs kept order and free of had been has taken action debris. There is no indication that Norfolk through drainage pipe. The which would limit the flow of water pipe, properly therefore, maintained. has been present failed to a triable issue
3. The homeowners also City. respect The homeowners to their nuisance claim City. First, contend raise several contentions the City’s Norfolk of the CC-CSO and connection to the construction flooding. master’s contributed findings has not indicate, however, that the connection of the flooding, con- and that has contributed to the structed and maintained the CC-CSO. *6 City created a nui- further contend that the
The homeowners surrounding by approving permits land and construction for sance ultimately maintaining underground pipes feed into a series of which pipe. construction, culvert and As a result of this new Norfolk’s including impervious water, contend that areas to 5 which if Norfolk also created an embankment on to This fact remains true even construct its tracks.
419 flooding. runoff increased and contributed to the This contention does not raise a triable claim under the facts of this case. approving project
[T]he a sole act of construction which impose leads to an increase liability surface water runoff cannot creating maintaining However, or a for nuisance. municipality negligently a or
where constructs undertakes drainage system or maintain a sewer which causes repeated flooding property, continuing, of a nui- abatable municipality established, sance is for which the is liable. (Citations omitted.) emphasis City Riverdale, v. Hibbs Ga. of (478 121) (1996).
337, 338 SE2d
The found that land floods homeowners’ 36-inch installed the railroad cannot handle the because the quantity flowing during heavy of runoff toward it storms. The facts City steps culvert, has taken no show that maintain drainage pipe, pipes leading “[L]iability or other to the culvert. municipality solely approval of a projects.” (Emphasis cannot arise from its of construction
omitted.)
County Wheaton,
Fulton
v.
252 Ga.
(1) (310
910) (1984),
part
grounds,
49, 50
SE2d
overruled in
on other
513)
(1)
(1991).
County Orwig,
DeKalb
taining
approved
the railroad culvert
because it
neighborhood.6
constructing
surrounding
homes
Judgments
except
concur,
Sears,
J.,
All the
C.
reversed.
Justices
Hunstein,
J., P. who
dissent.
Presiding
dissenting.
Justice,
HUNSTEIN,
plaintiff
homeowners’ nuisance claim
Defendant
Corporation
Norfolk Southern
is not barred
the statute
(2) (256
Gunnells,
(1979),
Bowman v.
this Court
established
determining
municipality
creating
guidelines for
whether a
will be liable for
maintaining
negligence
degree
the defect or
must exceed mere
a nuisance:
misfeasance
(as
act);
distinguished
single
complained
from a
the act
of must be of
duration and the maintenance of the act or defect must be continuous or
some
regularly repetitious;
municipal
and there must be a failure of
action within
dangerous
knowledge
time after
of the defect or
condition.
reasonable
(Footnote omitted.) Hibbs, supra,
limitations.
in
directly
nature
continuing
or
permanent
nuisance
alleged
in
statute
applicable four-year
manner
which the
controls the
the
However,
incorrectly classifies
majority
is
the
applied.
limitations
allegedly
that
on the homeowners’
intermittent
aas
of the Defendant’s
presence
was caused
conclusion,
majority
In
reaching
nuisance.
permanent
mere
that
complain
the extent
asserts that
nuisance,
a
the nuisance
of the culvert and
creates
pipe
presence
that
claim the
but to the extent
permanent,
claim is
maintained,
continuing
nuisance claim is
not
their
claims
Thus,
only
reasons
majority
are
the statute of limitations
that are not barred
homeowners
working
did not
keep
good
that Norfolk
alleging
those
instances
which the creation
However,
certainly
there are
order.
can be
or
to others
damages
that causes harm
permanent object
a
similar to the
For
facts
continuing
example,
nuisance.
considered
Towne
Square
in Cox v. Cambridge
here,
ones
this Court
presented
(1997)
sewer
Houses,
Contrary
majority’s
on whether
the plaintiff
is not
continuing
permanent
dependent
or
or asserts that
“presence”
about the
complains
Rather,
has tradition
maintained.
this Court
improperly
and abatable to
a nuisance is transient
looked at whether
ally
or
permanent.
nuisance is
alleged
determine whether
Corporation aptly
v. G & C
describes the
Shaheen
This
Court
nuisance:
between a
and a
difference
to land is of a permanent
“Where the
nuisance
original
inflicted
are
character,
damages
thereby
perma-
so that
must, be had for the
nent,
may,
not
recovery
only
action; and such
accrue
damages
entire
in one
damages,
created, and from that
time
from the time the nuisance is
In
to run.
the case of
begins
the statute of limitations
determining
Cox,
recognized
courts have had in
this Court
the difficulties that
purposes,
adopted
temporary
for statute of limitations
whether a nuisance is
the Restatement
classifying continuing
approach
nuisances in an effort to alleviate the
confusion.
421 permanent nuisances which are transient rather than injurious character, their the continuance of the acts is nuisance, lie; considered a new and for which a fresh action will although original damages barred, cause of action is may be recovered for the continuance of the nuisance.” (Citations (198 omitted.) punctuation 646, and 230 Ga. 648 SE2d 853) (1973). continuing This Court Shaheen held that a nuisance by grading was established property property every evidence that the defendant’s of its deposited appellant’s caused water and dirt to be on the Id. time it rained. Because the nuisance was classified continuing rejected argu- nature, as this Court the defendant’s grading years that the of ment its occurred more than four prior filing complaint by to the and was thus barred the statute by of Id. 647. limitations. at Numerous other decisions this Court Appeals Georgia recognized and the of Court of have likewise that a nuisance should be if classified it is transient and abatable.8 majority’s City Augusta reliance on Council v.Lombard is of
misplaced. permanent Lombard, this Court stated nuisance complete upon is one where the destruction or completion by City of the act which the nuisance is created. Council (28 (1897). Augusta Lombard, 724, v. 101 Ga. 727 SE of permits “[w] However, nuisance, remain, here one creates a it to continuing wrong giving rise, it is treated as a over and over again, to causes of action.” Id. The defendant in Lombard committed gate canal, act, a one-time the removal of a from a more than four years prior filing of the suit. Id. at 729. The court held that the by suit was not barred the statute of limitations because [t]his per nuisance, removal did not se constitute a high discharging became such certain times of water large quantities upon premises and unusual of water of thereby injuring injuries plaintiff, received, For so him. plaintiff may action, . . . an maintain and for each may a new successive inundation cause action accrue. 8 (272 302) (1980) See, 571, e.g., City Myszka, Columbus v. 246 Ga. 572 SE2d nuisance); (distinguishing continuing, permanent abatable nuisance from a Brand v. (209 581) (1974) (“In 32, case,
Montega Corp., 233 Ga. SE2d a surface-water invasion continuing nuisance.”); continuing trespass equivalent invasions amount to a which is the of a 638) (2002) Waters, 555, App. Gainesville v. 258 Ga. (“Where character, a nuisance is not in its but is one which can and should be it, person erecting maintaining every abated continuance of the nuisance is fresh lie.”); Boyd, App. Augusta nuisance for which a fresh action will Council 437) (1944) (holding that the is not it can be abated nuisance because time). at appellant’s building case, Thus,
Id. nuisance, as the nuisances were subse- did not constitute the quent floodings allegedly drainage pipe. such, caused As each alleged new nuisance for which a individual constituted *9 id. cause of action accrues. See majority Appeals’ decision in Council
The
cites the Court of
437) (1944),
Augusta Boyd,
App. 686,
proposition
alleged
should be considered
that an
nuisance
complain
presence
of the
because the homeowners
Appeals Boyd
drainpipe.
never held that a
However, the Court of
alleged
equates
complaint
presence
nuisance
of the mere
of an
being
Rather, the
classified as a
nuisance.
that nuisance
perma-
improper
ditch,
not a
maintenance of the
court said “the
by
city
at
[nuisance], but rather one which can be abated
nent
any
Boyd
complaining
plaintiff in
. . . .” Id. at 688. That the
was
time
city’s
merely
that
maintenance of a ditch
demonstrates
about the
stopped
alleged
ditch,
nuisance, the maintenance of the
could be
constitutes a
nuisance. It does not
at
necessarily
time and thus
complaint
presence
that a
about the mere
follow
permanent,
alleged
that nuisance as
and the
nuisance classified
Boyd
hold as much.9
court
does not
incorrectly
majority
classifies the homeowners’ nuisance
The
part permanent
Norfolk as
nature and
claim
Defendant
part continuing
Rather,
the entire claim should be
continuing in nature. It is clear in this case that the
classified as
alleged
flooding
transient as the
was not constant and
nuisance was
during heavy
only
rain. The evidence here also demon-
occurred
alleged
Special
nuisance was abatable. The
Master
strates that the
flooding:
proposed processes to alleviate the
testified as to
drainpipe
of an additional
on Defendant Norfolk’s
construction
property
widening
drainpipe already
or the
there. Because the
continuing nuisance,
here should have been classified as a
nuisance
by
only damages against Defendant Norfolk that are barred
by
four-year statute of limitations are those that were incurred
filing
flooding
years prior
that occurred more than four
to the
complaint.
Cox,
See
at the time of the installation, the structures prevailing adequately standards drained the homeowners’ Special Rather, the Master noted that the date the was designs built is unknown and old for the located, cannot be probably that the sized to accommodate the flow from the many ago.10 Special basin as it existed decades Master explains also on the caused years has existed for and is not a recent occurrence. *10 Special likely Master notes that it is that additional devel- opment surrounding parties generate impervious would more generating sources, drainage pipe through therefore additional water runoff certainly question and culvert. This assertion creates a surrounding development superceding as to whether the is a cause to flooding property Special on the homeowners’ that the Master drainage pipe. concludes is a result of Defendant Norfolk’s However, Special specify because the Master does not how much the surround- ing development may have contributed to the water runoff or that it definitely appropriately even occurred, this issue of causation is not summary judgment. respectfully decided on a motion for Therefore, I majority’s opinion dissent to Divisions 1 and 2 of the and would Appeals. affirm the decision of the Court of joins
I am authorized to state that Chief Justice Sears in this dissent. 9 May 4, 200
Decided
RECONSIDERATION DENIED JUNE 2009. Jerry Chandler, DeLoach, Elizabeth B. L. Laura Sauriol-Gibris, of Atlanta. Special Even if the Master were to find that the Defendant’s did not created, necessarily cause preclude when it was this does not the Plaintiffs’ claim. As (Second) (f) § the Restatement of Torts states: physical harmful, [nuisance] In some cases the condition created is not of itself - upon becomes so person intervention of some other force the act of another liability person force of activity these cases the whose created the physical depends upon activity condition the determination that his was a substan- harm, causing intervening tial factor in superseding and that the force was not a Thompson, Curry Wilco,
Weissman, Nowack, C. & William Corporation. Morris, for Norfolk Southern Laura S. Craig Frankel, Lambert, Frankel, Lisa C. LeAnne M.
Gaslowitz Gilbert, for Kleber et al. M. THE STATE.
S08G1898. BROOKS v. Justice. Thompson, Appeals granted State, in Brooks v. certiorari to the Court of We 827) (2008), App. to consider whether justify grounds required a search and seizure of reasonable despite person probationer Jerry Matthew Brooks’ and/or probation validly imposed condition of the existence of a prospectively rights. Upon Fourth Amendment fur- waived Brooks’ scrutiny record, however, we conclude that this is not the ther appropriate on the that issue because this case turns case to address day validity search. We thus leave for another of a consent to supported by probation question search must be of whether a despite grounds a Fourth Amendment waiver. reasonable serving probated period During of time that Brooks was prior felony drug portion conviction, officers for a of a sentence *11 Squad County Multi-Agency assigned Narcotics to the Cherokee (CMANS) County Depart- Sheriffs informed the Cherokee lodged accusing complaints CMANS that Brooks had ment about agents conducting annoying his surveillance of interfering privacy. addition, In officers received his CMANS possession methamphet- anonymous tips that Brooks was two probation inquired of Brooks’ amine. The officers into the terms agreement had been and learned that certain conditions prohibited consuming imposed. pertinent part, Brooks was required produce substances; he urine alcohol or controlled presence specimens for the of such blood to be tested and/or prohibited upon request officers; law enforcement substances person subject home with or without he was to a search of his and/or requested do so law enforcement officers. a warrant whenever Based on the foregoing information, several officers went to Brooks’ probation The officers identified residence to conduct a search. they probation were there to conduct a themselves and stated probation agreement. with Brooks’ Brooks search accordance “okay,” objection replied, and voiced no to the search. The officers nothing if interest in the house and asked could have found key padlocked replied he did barn on the Brooks to a through key hole but he offered to crawl inside not have