MORRIS et al. v. DOUGLAS COUNTY BOARD OF HEALTH et al.
S01A1648
Supreme Court of Georgia
March 25, 2002
274 Ga. 898 | 561 SE2d 393
FLETCHER, Chief Justice.
Plаintiffs John and Deanna Morris and LaSalle Home Mortgage Corporation sued defendants Douglas County Board of Health (the “Board of Health“), Douglasville-Douglas County Water and Sewer Authority (the “Authority“), and Peter Frost, the Authority‘s executive director, alleging that the defendants had failed to maintain and repair the Morrises’ septic system. Because we find that the Board of Health did not create or maintain a nuisance and the Authority and Frost breached no duty owed to the plaintiffs, we affirm the trial court‘s grant of summary judgment in favor of the defendants.
In 1995, John and Deanna Morris purchased the house on lot 10 of Lithia Place subdivision in Douglas County. Although the previous owners had never reported any trouble with the septic systеm, the Morrises began to experience seepage from the septic system shortly after they moved into the house. These problems led the Board of Health to notify the Morrises that they were in violation of Douglas County ordinanсes regarding the discharge of raw sewage onto the ground. The Morrises moved out of their house and, together with their mortgage company, sued the defendants, seeking damages and a writ of mandamus requiring the Authority to connect the Morrises to the central sewer.
1. The Board of Health is liable in this case only if the Board‘s actions created a nuisance that rose to the level of an inverse condemnation.1 Mere negligence is not enough.2 Here, the Board of Health took two actions, six years apart, with respect to the Morrises’ property. First, in 1989, it approved the installation of a septic system. Second, in 1995, it made a visual inspection of the Morrises’ property looking for seepage from the septic systеm. The Board of Health had no ongoing obligation to maintain the Morrises’ septic system, and the two actions it did take are insufficient as a matter of law to make the Board of Health liable for inversely condemning the Morrises’ property.
A county is not liable for a nuisance merely because it approved a construction project.3 The Board of Health approved the installation of septic systems at the Morrises’ subdivision based on a portion
Similarly, the Board of Health is not liable for anything that it did or did not do while visually inspecting the Morrises’ property for seepage from the septic system. To be liable for a nuisance, a county must perform “a continuous or regularly repetitious act, or creat[e] a continuous or regularly repetitious condition” that caused the harm.5 A single act of negligence is insufficient.6
When the Morrises were considеring whether to purchase their house, they decided not to hire a home inspector and, instead, requested the Board of Health to inspect the septic system. In September 1995, the Board of Health conducted a visual inspection by walking the Morrises’ property looking for signs of seepage from the septic system. Unbeknownst to the Morrises or the Board of Health, the previous owners of the property allegedly had hidden any seepage by dumping roughly four and one-half feet of dirt on top of the septic system.
Following its visual inspection, the Board of Health sent the Morrises a letter that informed them the Board had seen no signs of seepage while walking around on the property. The letter concluded with a paragraph that expressly disclaimed any guarantee as to the status of the septic system or assumption of liability:
Issuance of this visual inspection letter for an on-site system shall not be construed as a guаrantee that such system will function satisfactorily for a given period of time; furthermore, said representatives do not, by any action taken, assume any liability for damages which are [ca]used, or may be caused by the malfunction of such system.
Finally, nothing in DeKalb County v. Orwig8 supports a different conclusion. In Orwig, plaintiff‘s home was connected to the county-owned and maintained sewer system. An obstruction in this county sewer system caused sewage to back up periodically into plaintiff‘s home. In contrast to Orwig, the Morrises’ septic system is not owned or maintained by the Board of Health. Because the Bоard of Health is not charged with the ongoing maintenance of the Morrises’ septic system, Orwig simply does not apply to the facts in this case.
2. The trial court also correctly granted summary judgment to the Authority and Frost. The basis for the plaintiffs’ claim against the Authority and Frost is that the Authority had an ongoing duty to maintain and repair the Morrises’ septic system. To support this contention, the plaintiffs rely on section 11-43 (g) of the Douglas County Code, which provides that the Authority “shall be solely responsible for the ongoing inspection, maintenanсe and repair of [ ] on-site septic tank[s].”
The Authority, however, was created by the General Assembly, and Douglas County cannot unilaterally impose obligations on the Authority that are contrary to its enabling legislation.9 Although the Authority‘s enabling lеgislation allows the Authority to enter agreements regarding septic systems,10 the record demonstrates that the Authority did not agree to assume the duties set forth in Code § 11-43 (g) and, in fact, was unaware of Douglas County‘s attempt to expand the Authority‘s оbligations. The record further demonstrates that there was no other enforceable agreement between the Authority and Douglas County that obligated the Authority in any way to inspect, maintain, or repair the Morrises’ septic system. Acсordingly, the trial court correctly granted the Authority summary judgment. For the same reasons, Frost, who was sued in his official capacity as the Authority‘s executive director, was also entitled to summary judgment.
3. Based on the rationale set forth above, none of the defendants is liable under
Judgment affirmed. All the Justices concur, except Hunstein and Thompson, JJ., who concur in part and dissent in part.
HUNSTEIN, Justice, concurring in part and dissenting in part.
The issue in this appeal is whether the Douglas County Board of Health is entitled to summary judgment on appellants’ claim that it created a nuisance. Because the majority‘s holding, which concludes that the Board of Health cannot be held responsible for creating or maintaining a nuisаnce, is unsupported by the circumstances of this case and is contrary to this Court‘s holding in DeKalb County v. Orwig, 261 Ga. 137 (402 SE2d 513) (1991), I respectfully dissent.
The majority holds that the trial court did not err by granting summary judgment to the Board of Health under evidence which showed that the Board of Health issued a building permit for the lot with knowledge that the soil conditions were unsuitable for and incapable of supporting the ongoing operation of a permanent septic system. At the time the Morrises purchased the property, the permitted two-yеar septic system had been in operation for six years and had already failed. Notwithstanding that the Board of Health had the information solely within its purview, namely, that the septic system was originally approved for a two-year pеriod and originally installed as a temporary measure, the report issued by a Board of Health “specialist” failed to note the inherent inadequacies with the system. Without the on-going camouflage of the septic seepagе promulgated by the previous owners, the septic system unsurprisingly failed within weeks of the Morrises’ purchase. Ultimately, the home had to be abandoned because it was impossible to make the septic system function properly.
A nuisance has been repeatedly defined as ” ‘anything that works hurt, inconvenience, or damage to another. . . .’ ” State of Ga. v. Ball Investment Co., 191 Ga. 382, 389 (2) (12 SE2d 574) (1940), or the performance or creation of a continuous or regularly repetitious act or condition which causеs hurt, inconvenience, or injury. Orwig, supra at 139 (2);
In light of Orwig, which stresses that even limited instances of negligence can create a continuing nuisance, I would hold that the evidence introduced was sufficient to create a question for the jury. Contrary to the majority‘s position, summary judgment was not demanded on the basis that the Board of Health “took two actions, six years apart, with respect to the Morrises’ property.” One clear function of the Board of Health‘s permitting process is to insure that waste discharged from individual septic systems does not contaminate water, property or create a health hazard. Thus, while I recognize that each case of claimed nuisance depends upon many factors, I am of the firm opinion that a question exists under the circumstances of this case whether the Board of Health should be held liable for inversely condеmning the Morrises’ property where there is evidence that the Board of Health issued the building permit to install the septic system, that it failed to notify the Morrises that the septic system it was asked to inspect was of a temporary nature and operating past the time allowed, and it took no effort to connect the home to the sewer system constructed only 1,000 feet from the home upon learning that the septic system had failed. See Fielder v. Rice Constr. Co., 239 Ga. App. 362 (1) (522 SE2d 13) (1999) (health department‘s aрproval of the lot for septic tank use, setting aside requirements of its own office which allowed substandard septic tank conditions to be approved, and failure to take the appropriate steps necessary tо abate the nuisance raise a jury question whether such acts and omissions constituted maintaining a nuisance by the health department).
Accordingly, I respectfully dissent to the majority‘s affirmance of the trial court‘s order granting summary judgment to thе Board of Health but concur with the majority‘s affirmance of the trial court‘s order granting summary judgment to the Authority and its executive director.
I am authorized to state that Justice Thompson joins in this dissent.
DECIDED MARCH 25, 2002.
Leon A. Van Gelderen, Roy A. Banerjee, for appellants.
Drew, Eckl & Farnham, Burke A. Noble, John P. Reale, Robert L. Welch, Hartley, Rowe & Fowler, Joseph H. Fowler, Freeman, Mathis & Gary, T. Bart Gary, Stuart W. Gray, for appellees.