Recent Case Updates - Chapter 12 - Georgia Nuisance Law

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Georgia Nuisance Law - Hardcover

Georgia Nuisance Law - Electronic

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CHAPTER TWELVE
RECENT CASE UPDATES
The purpose of this chapter is to summarize some of the more important
nuisance related opinions from the Georgia appellate courts over the past
few years. These summaries are not intended to provide complete
discussions of these cases, but to give the practitioner a starting point for
researching particular areas of Georgia nuisance law.
I. Permanent v. Continuing Nuisance
City of Atlanta v. Kleber, 285 Ga. 413; 677 S.E.2d 134 (2009).
Plaintiffs alleged that Norfolk Southern Corporation and the City of
Atlanta caused repeated flooding on their property by failing to properly
maintain a nearby drainage pipe and culvert. The trial court granted
summary judgment to Atlanta and Norfolk Southern based on the expiration
of the four year statute of limitations in O.C.G.A. § 9-3-30(a). After the
Court of Appeals reversed that judgment, finding that a continuing, abatable
nuisance was present and, therefore, the statute of limitations did not bar
the action, the Supreme Court reversed and reinstated summary judgment
on behalf of the Defendants.
The problem at the heart of the case can be traced back to the late
1800’s, when Norfolk Southern installed tracks abutting the property that
the Plaintiffs purchased two centuries later. Norfolk also installed a
culvert and a 36 inch brick drainage pipe under the tracks sometime after
the original installation. At the time of the installation the culvert and
pipe were adequate and Norfolk Southern maintained the culvert and
pipe over the years without a problem. However, in 1997 the Plaintiffs
purchased their home and began experiencing flooding on the property
during heavy rains. The Plaintiffs communicated their problems to both
Norfolk Southern and the City of Atlanta, but did not file suit until October
28, 2004, after a particularly bad flood caused substantial property damage
to their home.

CHAPTER TWELVE:
Recent Case Updates
I. Permanent v. Continuing Nuisance
II. City and County Related Nuisances
III. Causation
IV. Attractive Nuisance
V. Express Easement
VI. Interlocutory Injunction
VII. Public v. Private Nuisance
VIII. Punitive Damages
IX. Land Ownership

About the Editor-in-Chief:
David J. Marmins is a Partner in Balch & Bingham's Litigation and Creditors Rights and Bankruptcy Sections in the Atlanta, Georgia office. David has significant experience handling commercial and real estate related disputes. David's real estate work focuses on land use disputes, construction litigation and homeowners association matters. David's practice also includes the representation of creditors and other major parties-in-interest in bankruptcy cases and commercial litigation. David also handles a variety of general business litigation and government affairs matters. He frequently teaches continuing education courses on nuisance law and related real estate litigation matters and has been an instructor for the Community Association Institute at its law seminars and annual conferences.

David has successfully tried cases in federal and state courts throughout Georgia and won appeals in the Georgia Supreme Court, Georgia Court of Appeals and the Eleventh Circuit Court of Appeals. David has been recognized by Law & Politics and Atlanta Magazine annually as a Georgia Super Lawyer "Rising Star" since 2005 and a Georgia Super Lawyer beginning in 2009. David has been rated "AV" by Martindale Hubbell.

David began his career as an Assistant Attorney General for the State of Georgia in the Civil Rights Litigation section. David joined Balch in January 2000. David also worked as a reporter for the Fulton County Daily Report before attending law school. David resides in Smyrna, Ga. with his wife Amanda, son Alec and daughter Tatum.

About the Contributors:

Brian E. Daughdrill is a partner in the firm of Roberts & Daughdrill, P.C. and concentrates his practice on real estate, zoning and construction issues. He regularly advises clients regarding nuisance, run-off and trespass issues related to development and construction matters. He graduated magna cum laude from Mercer University's Walter F. George School of Law in 2000 and was on the Mercer Law Review. He has authored a number of articles on land-use issues and is a frequent guest speaker for continuing legal education seminars.

Leigh Martin May is a partner in the Atlanta office of Butler, Wooten & Fryhofer, LLP. She obtained her B.S. from Georgia Tech and her J.D. from the University of Georgia School of Law, where she served as Editor-In-Chief of the Georgia Law Review. Before working for Butler, Wooten, she was a law clerk for the Honorable Dudley H. Bowen, Jr., U.S. District Court, Southern District of Georgia.

Lorna McGilvray Norton is counsel with Balch & Bingham in Atlanta. She received her undergraduate degree with honors from James Madison University in Harrisonburg, Virginia. After graduating from Emory Law School, where she was on the editorial board of the Emory Law Journal, she worked for Hunton & Williams in Atlanta in its litigation group, where her practice focused on complex commercial and environmental litigation. Her practice focuses on her specialized expertise in research, analysis and writing for a wide range of complex business and commercial litigation matters.

Melanie B. Paidipalli is an in-house attorney for Georgia State University in Atlanta, Georgia. Her practice focuses on advising and assisting the University in real estate transactions. Prior to joining Georgia State University's Office of Legal Affairs, Melanie worked as an associate in a boutique firm specializing in commercial real estate transactions.

Lucy R. Atkinson is an associate at Weinberg, Wheeler, Hudgins, Gunn & Dial in Atlanta. Lucy's practice focuses on business litigation and product liability defense with an emphasis on medical device and pharmaceutical litigation. Lucy graduated magna cum laude from Washington and Lee University in 2002 and graduated cum laude from University of Georgia School of Law in 2007.

Emily A. Poe is an Associate at Weinberg, Wheeler, Hudgins, Gunn & Dial in Atlanta. Emily's practice focuses on civil litigation with emphasis on product liability, foodborne illness, and environmental and toxic tort liability. Emily graduated with her B.A. from Princeton University in 2001 and graduated cum laude from the University of Georgia School of Law in 2006.