John Bolton filed a nuisance and inverse condemnation action against the City of Roswell and Jere Wood, in his official capacity as mayor of the City, for property damage caused by increased surface and storm water runoff. A jury awarded Bolton $259,100, itemized to include damages for diminution in property value, costs of repair, loss of peace of mind, and attorney fees. 1 The trial court also ordered injunctive relief.
In Case No. A04A1395, the City claims the trial court erred in (i) denying its motion for a directed verdict, (ii) admitting a copy of a City ordinance relating to inspection of storm water management control facilities, (iii) admitting evidence of damages arising prior to six months before Bolton’s ante litem notice to the City, (iv) failing to give two requested charges to the jury, and (v) allowing a double recovery. For the reasons set forth below, we find no merit in the City’s claims other than its contention that the damages awarded by the jury constituted an impermissible double recovery for costs to restore and diminution in value for the same injury. Accordingly, we affirm in part and reverse in part and remand the case for a new trial on the issue of damages. In Case No. A04A1396, the City argues that the trial court erred in granting injunctive relief because the City did not maintain a nuisance. We disagree and affirm.
Case No. A04A1395
The evidence adduced at trial shows that in 1979, Bolton purchased a house in the City. At that time there was a shallow creek located in the backyard, about 20 to 25 feet from the house, which was narrow enough to step across and shallow enough to be traversed by a bicycle. Area development in the 1980s through the early 1990s caused increased water flow in the stream, and the stream flooded in 1991 after a heavy rainfall. Shortly afterward, Bolton contacted a City engineer who came to look at his property. The City made repairs to storm water detention facilities in the Warsaw Drainage Basin, where Bolton’s property was located, and the flooding situation improved significantly from 1991 until construction of the Commerce Parkway.
In 1996, the City and the Georgia Department of Transportation began construction of the Commerce Parkway upstream from Bolton’s property. They began laying asphalt in 1998, and construction was completed that year. Bolton had previously contacted the City to express his concern about the effect of the Commerce Parkway on his property,
The City’s director of public works, Stuart Moring, testified that the City was responsible for maintaining the storm water management facilities associated with the Commerce Parkway. Moring further testified that all of the storm water runoff from the Commerce Parkway project flowed into the stream bordering Bolton’s property. According to Moring, a portion of the runoff flowed into the stream without being held in the detention pond. A water detention pond held another portion of the storm water runoff from the Commerce Parkway, but Moring admitted City engineers found the detention pond located at the Commerce Parkway not to be functioning according to its design.
Moring became aware of Bolton’s complaints about storm water runoff in 1998. In 1999, citing streambank erosion, loss of topsoil, and exposed sewer lines in Warsaw Drainage Basin, Moring submitted an application on behalf of the City for federal funding for “stream bank stabilization” on properties including the Bolton property, but funding was denied. The City did not perform any stream bank stabilization work on Bolton’s land.
1. The City claims the trial court erred in denying its motion for a directed verdict because Bolton failed to prove the elements of his nuisance claim. We disagree. “A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions, demands a particular verdict.” (Footnote omitted.)
H. J. Russell & Co. v. Jones,
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 omitted.)
Mayor &c. of Savannah v. Palmerio,
In this case, the jury could conclude that the City’s construction of the Commerce Parkway and its failure to adequately maintain the drainage system associated with the Commerce Parkway created a condition which subjected Bolton’s property to repeated flooding. The jury could also conclude the City was aware of the harmful condition, but failed to rectify it. “[Wjhere a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable.” (Citations and emphasis omitted.)
Hibbs v. City of Riverdale,
The City argues that it was nevertheless entitled to a directed verdict under authority of
City of Atlanta v. MARTA,
The City cites another traffic signal case,
City of Bowman v. Gunnells,
2. The City claims the trial court erred in allowing Bolton to introduce Section 7.1.8 (d) of the City’s Code of Ordinance, which arguably required the City to establish inspection schedules for all storm water management control facilities in its jurisdiction. The City argues that the introduction of the ordinance was unfairly prejudicial because the City could not be liable for negligent inspection or failure to inspect facilities over which it had no control. See, e.g.,
Morris v. Douglas County Bd. of Health,
The trial court allowed the ordinance to be introduced for purposes of impeachment. On cross-examination, Bolton questioned Moring about the ordinance’s inspection requirement in connection with Moring’s statement that the City did not inspect storm water
detention facilities after completion other than on a “complaint basis.” We conclude the trial court did not abuse its discretion in allowing the ordinance to be used for purposes of impeachment because whether the City had undertaken the responsibility of maintaining drainage facilities affecting the Bolton property was at issue. Furthermore, “[e]vidence tendered for impeachment purposes need not be of the kind or quality required for proving the facts.” (Punctuation omitted.)
Atlanta Warehouses v. Housing Auth. of Atlanta,
The City also contends that allowing the ordinance into evidence amounted to “reading law” to the jury. See
Groover v. Dickey,
3. The City claims the trial court erred in allowing Bolton to introduce evidence of flood events before October 9,1998, the date six months before his ante litem notice to the City. We disagree.
OCGA § 36-33-5 (b) requires a claimant to give written notice to a municipality of a suit for damages to person or property “[wjithin six months of the happening of the event” upon which the claim is based. See
Cundy v. City of Smyrna,
The trial court instructed the jury that although they had heard evidence of events occurring before October 9, 1998, they may not
award damages for events that happened before that date, and further informed the jury that evidence of anything that occurred before October 9, 1998, was admitted “for the purpose of showing notice to the City of the condition, whether it existed or not.” Evidence of flooding before October 9, 1998, was relevant to the issue of bad faith and the award of attorney fees. See OCGA § 13-6-11;
City of Gainesville v. Waters,
4. The City contends that the trial court erred in refusing to instruct the jury on the entirety of its request to charge with respect to the definitions of “ordinary negligence,” “gross negligence,” and “mere negligence.” The City also claims that the trial court erred in failing to give its requested charge that the sole act of approval of a construction project leading to an increase in surface water runoff cannot be the basis of any liability on its part. “A request to charge must be correct, legal, apt, and precisely adjusted to some principle in the case.”
Tumlin v. State,
The trial court instructed the jury as to “ordinary negligence.” The trial court also charged the jury that “mere negligence is insufficient to constitute a nuisance.” The City claims that the trial court’s decision to charge the jury only as to “ordinary negligence” was inadequate. Setting aside Bolton’s contention that the City waived the right to object to the charge given, we find no error.
The City’s requested charge defined ordinary negligence and gross negligence and then instructed that “[m]ere negligence includes both ordinary and gross negligence.” We conclude that the requested charge was not precisely adjusted to the principles of the case because Bolton asserted claims of continuing nuisance and trespass and inverse condemnation, and introducing the concept of
gross negligence was potentially confusing to the jury. Furthermore, the courts have generally
The trial court also refused to give the City’s requested charge that “[t]he sole act of a city’s approval of a construction project which leads to an increase in surface water runoff cannot be the basis of any liability on the part of the city for creating or maintaining a nuisance.” For this principle, the City relied on
Hibbs v. City of Riverdale,
[T]he sole act of approving a construction project which leads to an increase in surface water runoff cannot impose liability for creating or maintaining a nuisance. However, where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable.
(Citations omitted; emphasis in original.) Id. at 338.
The City’s requested charge instructs that a sole act of approval “cannot be the basis of any liability on the part of the city.” Arguably, the requested instruction would prohibit the jury from using the City’s approval of the Commerce Parkway in any consideration leading to liability on the part of the City; including, for instance, whether the approval tended to show the City was responsible for maintaining the associated drainage facilities. The suggested instruction is not strictly consistent with the principle, as stated in
Hibbs,
that a sole act of approval “cannot impose liability.” Id. “If
any portion
of the request is inapt or incorrect, denial of the request is proper.” (Footnote omitted; emphasis in original.)
Lifestyle Family v. Lawyers Title Ins. Corp.,
5. The jury found that “Bolton’s property has been diminished in value by acts of the Defendant in the amount of $30,000,” and that Bolton is “entitled to compensation for the cost to repair the actual, physical damage to his property caused hy the [City] in the amount of $89,100.” The City claims the verdict was an impermissible double recovery. We agree.
Bolton claims the City waived the issue of double recovery on appeal because it did not object to the verdict at trial or raise the issue in a post-trial motion. As a rule, an appellate court will not consider arguments raised for the first time on appeal. See generally
Pfeiffer v. Ga. Dept. of Transp.,
The City relies on
Ga. Northeastern R. v. Lusk,
Bolton claims the evidence presented with respect to diminution in value was based on damages to his house and did not include the costs of repairs to his stream bank and other property, and there was therefore no recovery for diminution in value and costs to repair for the same injury. We disagree. The only testimony as to diminution in value was that of appraiser John Maggi, who testified the value of Bolton’s property, not accounting for the flooding problems, was $140,000, and the impaired value of the property was in the range of $110,000 to $116,000. This testimony corresponds to the jury’s award of $30,000 for diminution in value. Bolton points out that Maggi largely based his valuation on the estimated costs to repair the foundation to the house, which was $15,087, and Maggi did not take into account the costs to repair the stream bank, which was estimated at $52,535. However, the appraiser’s valuation applied to Bolton’s property as a whole and cannot be directly equated to the costs to repair the house. Maggi was asked “to do a physical inspection of the site and the improvements, and to estimate the market value of that property.” Maggi gives his opinion as to the “impaired fair market value or ‘as is’ of this property,” and not simply the residence. 2 The appraiser included what he calls a “risk factor” in his valuation, and so there is no dollar for dollar correlation between the foundation repair costs and the diminution in value. We can only conclude that the evidence of diminution of value of Bolton’s property applied to the property as a whole and that the jury’s award for diminution in value to Bolton’s “property’ also applied to the property as a whole. It follows the jury awarded Bolton damages for the loss in fair market value caused by the flooding of the stream bank as well as the cost to repair his property so as to alleviate the flooding, thus making him twice whole. 3 See Lusk 11,277 Ga. at 246 (1) (given language in special verdict form, court could not conclude jury’s award for diminution in value did not also include decrease in value caused by destabilized condition of riverbank, which injury would have been remedied by the jury’s award of restoration costs). We are therefore constrained to reverse the judgment as to damages and remand the case for a new trial on the issue of damages.
Case No. A04A1396
The City claims that the trial court erred in granting Bolton injunctive relief in its February 2,2004 order because the City did not maintain a nuisance. In view of the result in Case No. A04A1395, in which we have ordered a new trial on the issue of damages but have otherwise rejected the City’s claims of error on the issue of its liability for maintaining a nuisance, this contention is without merit. The order must be affirmed.
Notes
The jury awarded damages for continuing trespass, continuing nuisance, and inverse condemnation. The trial court entered a judgment in the amount of $179,100 for continuing nuisance, and $80,000 in attorney fees. The jury’s continuing nuisance award included (i) $30,000 for diminution in value, (ii) $89,100 for cost to repair the actual damage to Bolton’s property, and (iii) $60,000 for aggravation and loss of peace of mind.
In his appellate brief Bolton admits that he sought recovery at trial for “diminution for fair market value of the property as a whole.”
The $89,100 award for the “cost to repair the actual, physical damages to [Bolton’s] property” is significantly greater than the $52,535 estimated cost to repair the stream bank and $15,000 estimated cost to repair the damage to the foundation of the house. Although we cannot be sure how the jury arrived at its award, there is no basis for treating the award as other than for the costs to repair Bolton’s property as a whole. And if the jury awarded Bolton the costs of restoring his property as a whole it would follow than an additional award for diminution in value based on the “as is” state of the property was an impermissible double recovery.