nuisance claim in Georgia

2021However, we need not address these doubts and questions to resolve the case before us, because, as we will explain, the Gattos’ nuisance claim against the City goes beyond even Phillips’ expansion of the nuisance doctrine. 16 242 Ga. at 427 (3).

2021However, we need not address these doubts and questions to resolve the case before us, because, as we will explain, the Gattos’ nuisance claim against the City goes beyond even Phillips’ expansion of the nuisance doctrine. 16 242 Ga. at 427 (3).

2005See Earnheart, supra, citing City of Bowman, supra. Further, the water main rupture, which directly caused the damage at issue, was likewise an isolated event that cannot support a nuisance claim.

1992“The grant of summary judgment [in the instant case] was correct as to the nuisance claim, because the factors set out in City of Bowman v. Gunnells, [supra at] 811 (2) ... , did not exist here.” Robinson v. City of Decatur, 253 Ga. 779 (3) ( 325 SE2d 752 ) (1985), overruled on other grounds, Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 303, fn. 1 ( 357 SE2d 569 ) (1987).

2021Oglethorpe v. Phillips, 224 Ga. 834 ( 165 SE2d 141 ) (1969) and its “expansive effect on the municipal nuisance doctrine” (emphasis added)); id. at 15 (“By extending the nuisance doctrine to include personal injuries beyond those tied to the plaintiff’s property, Phillips enlarged the scope of municipalities’ potential liability in nuisance.” (emphasis added)); see also Shank, 263 Ga. at 624 (1) (“[T]he doctrine of sovereign immunity and the nuisance exception which makes municipalities liable for maintaining a nuisance have co-existed for many years in this state.

2021Oglethorpe v. Phillips, 224 Ga. 834 ( 165 SE2d 141 ) (1969) and its “expansive effect on the municipal nuisance doctrine” (emphasis added)); id. at 15 (“By extending the nuisance doctrine to include personal injuries beyond those tied to the plaintiff’s property, Phillips enlarged the scope of municipalities’ potential liability in nuisance.” (emphasis added)); see also Shank, 263 Ga. at 624 (1) (“[T]he doctrine of sovereign immunity and the nuisance exception which makes municipalities liable for maintaining a nuisance have co-existed for many years in this state.

2021Oglethorpe v. Phillips, 224 Ga. 834 ( 165 SE2d 141 ) (1969) and its “expansive effect on the municipal nuisance doctrine” (emphasis added)); id. at 15 (“By extending the nuisance doctrine to include personal injuries beyond those tied to the plaintiff’s property, Phillips enlarged the scope of municipalities’ potential liability in nuisance.” (emphasis added)); see also Shank, 263 Ga. at 624 (1) (“[T]he doctrine of sovereign immunity and the nuisance exception which makes municipalities liable for maintaining a nuisance have co-existed for many years in this state.

2021Oglethorpe v. Phillips, 224 Ga. 834 ( 165 SE2d 141 ) (1969) and its “expansive effect on the municipal nuisance doctrine” (emphasis added)); id. at 15 (“By extending the nuisance doctrine to include personal injuries beyond those tied to the plaintiff’s property, Phillips enlarged the scope of municipalities’ potential liability in nuisance.” (emphasis added)); see also Shank, 263 Ga. at 624 (1) (“[T]he doctrine of sovereign immunity and the nuisance exception which makes municipalities liable for maintaining a nuisance have co-existed for many years in this state.

2021In applying the nuisance doctrine, the challenge is “determining what conduct or act on the part of the municipality will result in the creation or maintenance of a nuisance, as opposed to an action in negligence.” Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).

2021In applying the nuisance doctrine, the challenge is “determining what conduct or act on the part of the municipality will result in the creation or maintenance of a nuisance, as opposed to an action in negligence.” Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).

2015Contrary to the trial court’s conclusion, we believe that some evidence exists for causation in Bord and Bondar’s counterclaims. “[OJpinion evidence in opposition to a motion for summary judgment can be sufficient to preclude a grant of summary judgment.” (Citations omitted.) Hammond v. City of Warner Robins, 224 Ga. App. 684, 692 (1) ( 482 SE2d 422 ) (1997) (reversing the grant of summary judgment based on expert testimony on the elements of a nuisance claim).

2015Contrary to the trial court’s conclusion, we believe that some evidence exists for causation in Bord and Bondar’s counterclaims. “[OJpinion evidence in opposition to a motion for summary judgment can be sufficient to preclude a grant of summary judgment.” (Citations omitted.) Hammond v. City of Warner Robins, 224 Ga. App. 684, 692 (1) ( 482 SE2d 422 ) (1997) (reversing the grant of summary judgment based on expert testimony on the elements of a nuisance claim).

2012Co. v. Kitchings, 110 Ga. App. 599, 600 ( 139 SE2d 417 ) (1964) (holding that a plaintiff cannot maintain a nuisance claim based upon damage to a house resulting from a defect constructed into the house that was concealed from the plaintiff by the builder and/or the seller; instead, the applicable causes of action are fraud against the seller and/or negligent construction against the builder).

2012Co. v. Kitchings, 110 Ga. App. 599, 600 ( 139 SE2d 417 ) (1964) (holding that a plaintiff cannot maintain a nuisance claim based upon damage to a house resulting from a defect constructed into the house that was concealed from the plaintiff by the builder and/or the seller; instead, the applicable causes of action are fraud against the seller and/or negligent construction against the builder).

2021See Thomaston Acquisition, LLC v. Piedmont Const. Group, Inc., 306 Ga. 102 , 104 (2) (a) ( 829 SE2d 68 ) (2019).

2021See Thomaston Acquisition, LLC v. Piedmont Const. Group, Inc., 306 Ga. 102 , 104 (2) (a) ( 829 SE2d 68 ) (2019).

2021In setting out these “propositions,” our Supreme Court cited cases from this Court in which we distinguished allegations of nuisance premised on the municipalities actions, such as installing and then failing to maintain a defective traffic device as was the situation in Phillips, from situations where the nuisance claim was premised on “a classic case of non-action by the city, [such as where] there 7 was no traffic light in place and the question is whether an alleged hazardous condition brought about by the absence of a traffic light constituted the maintenance of a nuisance.” Hancock v. Ci

2021In setting out these “propositions,” our Supreme Court cited cases from this Court in which we distinguished allegations of nuisance premised on the municipalities actions, such as installing and then failing to maintain a defective traffic device as was the situation in Phillips, from situations where the nuisance claim was premised on “a classic case of non-action by the city, [such as where] there 7 was no traffic light in place and the question is whether an alleged hazardous condition brought about by the absence of a traffic light constituted the maintenance of a nuisance.” Hancock v. Ci

2018See also Mayor and Aldermen of City of Savannah v. Jones , 149 Ga. 139 , 139, 99 S.E. 294 (1919) (performance of a duty connected with the preservation of the public health is a governmental function).

2018See also Mayor and Aldermen of City of Savannah v. Jones, 149 Ga. 139, 139 ( 99 SE 294 ) (1919) (performance of a duty connected with the preservation of the public health is a governmental function).

2018See also Mayor and Aldermen of City of Savannah v. Jones , 149 Ga. 139 , 139, 99 S.E. 294 (1919) (performance of a duty connected with the preservation of the public health is a governmental function).

2018See also Mayor and Aldermen of City of Savannah v. Jones, 149 Ga. 139, 139 ( 99 SE 294 ) (1919) (performance of a duty connected with the preservation of the public health is a governmental function).

2018See Spooner v. City of Camilla, 256 Ga. App. 179, 183 (2) (b) ( 568 SE2d 109 ) (2002) (plaintiff contended that city had maintained a nuisance (a mining pit filled with water on a city-owned property)); City of Vidalia v. Brown, 237 Ga. App. 831, 835 (2) ( 516 SE2d 851 ) (1999) (plaintiff claimed city had maintained a nuisance within the city-owned right-of-way).

2018See Spooner v. City of Camilla, 256 Ga. App. 179, 183 (2) (b) ( 568 SE2d 109 ) (2002) (plaintiff contended that city had maintained a nuisance (a mining pit filled with water on a city-owned property)); City of Vidalia v. Brown, 237 Ga. App. 831, 835 (2) ( 516 SE2d 851 ) (1999) (plaintiff claimed city had maintained a nuisance within the city-owned right-of-way).

2013Cf. Ethridge v. City of Lavonia, 101 Ga.App. 190, 191 ( 112 SE2d 822 ) (1960) (no nuisance where plaintiff’s property was damaged by a single fire that spread from a city garbage dump to plaintiff’s property; event was “more in the nature of a tort or a trespass inflicting in one act a direct injury and damage (even though in effect one of more or less lasting duration) to plaintiff’s realty as distinguished from the maintenance of a nuisance where the injury complained of is the result of a continuous or recurrent act or condition and is of an indirect character”).

2013Cf. Ethridge v. City of Lavonia, 101 Ga.App. 190, 191 ( 112 SE2d 822 ) (1960) (no nuisance where plaintiff’s property was damaged by a single fire that spread from a city garbage dump to plaintiff’s property; event was “more in the nature of a tort or a trespass inflicting in one act a direct injury and damage (even though in effect one of more or less lasting duration) to plaintiff’s realty as distinguished from the maintenance of a nuisance where the injury complained of is the result of a continuous or recurrent act or condition and is of an indirect character”).

2012The Landings Assn. v. Williams, 309 Ga.App. at 329-330 (3).

2012Id. at 329-330 (3).

2018Whether the city was entitled to sovereign immunity was discussed only in the context of the plaintiffs' negligence claims, not in the context of the nuisance claim.), overruled on other grounds by Martin v. Ga. Dept. of Public Safety , 257 Ga. 300 , 357 S.E.2d 569 (1987).

2018Whether the city was entitled to sovereign immunity was discussed only in the context of the plaintiffs' negligence claims, not in the context of the nuisance claim.), overruled on other grounds by Martin v. Ga. Dept. of Public Safety , 257 Ga. 300 , 357 S.E.2d 569 (1987).

2021The Court reasoned that, viewed in this light, “the moniker ‘nuisance exception’ is a misnomer, and it is more apt to refer to the ‘nuisance doctrine’ when evaluating whether municipal liability may be imposed in a given case.” Id. 5 The Court next turned to the application of the nuisance doctrine, recognizing, as it had before, “the challenge is determining what conduct or act on the part of the municipality will result in the creation or maintenance of a nuisance, as opposed to an action in negligence.” (Punctuation omitted.) Id. at *8, quoting Hibbs v. City of Riverdale, 267 Ga. 337, 338 (

2017See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc. , 294 Ga. 593 , 596 (2), 755 S.E.2d 184 (2014) (explaining that Shank is premised on the takings clause of our Constitution); Rowland , 334 Ga. App. at 149 (1), 778 S.E.2d 409 (same); Howard v. Gourmet Concepts Intl., Inc. v. De K alb County , 242 Ga. App. 521 , 529 S.E.2d 406 (2000) (trial court properly granted summary judgment to County for an alleged nuisance causing personal injury because such injury does not constitute personal property that can be taken for purposes of inverse condemnation).

2020See Bord v. Hillman, 335 Ga. App. 18, 21 (1) ( 780 SE2d 725 ) (2015) (“To recover under a nuisance claim, the plaintiff must show the existence of the nuisance complained of, that he or she has suffered injury, and that the injury complained of was caused by the alleged nuisance.”) (citation and punctuation omitted).4 Judgment affirmed.

2020See Bord v. Hillman, 335 Ga. App. 18, 21 (1) ( 780 SE2d 725 ) (2015) (“To recover under a nuisance claim, the plaintiff must show the existence of the nuisance complained of, that he or she has suffered injury, and that the injury complained of was caused by the alleged nuisance.”) (citation and punctuation omitted).4 Judgment affirmed.

2025To 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.17 Plaintiffs cite no case in which a lease termination or breach o

2025To 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.17 Plaintiffs cite no case in which a lease termination or breach o

2023In Barngrover, we noted that well before the nuisance claim arose, the legislature consolidated the governments of the City of Columbus and Muscogee County, creating a new joint government and abolishing the previously separate municipal and county governments. 250 Ga. App. at 596-597 (4); see also Troup County Electric Membership Corp. v. Georgia Power Co., 229 Ga. 348, 350-351 ( 191 SE2d 33 ) (1972) (discussing the City of Columbus/Muscogee County consolidation).

2023In Barngrover, we noted that well before the nuisance claim arose, the legislature consolidated the governments of the City of Columbus and Muscogee County, creating a new joint government and abolishing the previously separate municipal and county governments. 250 Ga. App. at 596-597 (4); see also Troup County Electric Membership Corp. v. Georgia Power Co., 229 Ga. 348, 350-351 ( 191 SE2d 33 ) (1972) (discussing the City of Columbus/Muscogee County consolidation).

2023In Barngrover, we noted that well before the nuisance claim arose, the legislature consolidated the governments of the City of Columbus and Muscogee County, creating a new joint government and abolishing the previously separate municipal and county governments. 250 Ga. App. at 596-597 (4); see also Troup County Electric Membership Corp. v. Georgia Power Co., 229 Ga. 348, 350-351 ( 191 SE2d 33 ) (1972) (discussing the City of Columbus/Muscogee County consolidation).

2023Following the consolidation, the legislature also determined that “[t]he tort liability, expressly including liability based on a theory of nuisance, of the consolidated government shall be the tort liability applicable to counties.” Barngrover, 250 Ga. App. at 596 (4) (citation and punctuation omitted).

2022To the extent that Edwards’s claim is 10 See George v. Hercules Real Estate Svcs., 339 Ga. App. 843, 846-847 (1) (a) ( 795 SE2d 81 ) (2016) (holding that because there was no evidence that increasing security would have affected the crime rate in general or the particular crime that injured the plaintiff, the evidence was insufficient to create a question of fact on whether the plaintiff’s injuries were proximately caused by any act or omission of the defendant); Walker v. Aderhold Properties, 303 Ga. App. 710, 714-715 (2) ( 694 SE2d 119 ) (2010) (“[A] plaintiff must do more than merely specul

2022To the extent that Edwards’s claim is 10 See George v. Hercules Real Estate Svcs., 339 Ga. App. 843, 846-847 (1) (a) ( 795 SE2d 81 ) (2016) (holding that because there was no evidence that increasing security would have affected the crime rate in general or the particular crime that injured the plaintiff, the evidence was insufficient to create a question of fact on whether the plaintiff’s injuries were proximately caused by any act or omission of the defendant); Walker v. Aderhold Properties, 303 Ga. App. 710, 714-715 (2) ( 694 SE2d 119 ) (2010) (“[A] plaintiff must do more than merely specul

2022To the extent that Edwards’s claim is 10 See George v. Hercules Real Estate Svcs., 339 Ga. App. 843, 846-847 (1) (a) ( 795 SE2d 81 ) (2016) (holding that because there was no evidence that increasing security would have affected the crime rate in general or the particular crime that injured the plaintiff, the evidence was insufficient to create a question of fact on whether the plaintiff’s injuries were proximately caused by any act or omission of the defendant); Walker v. Aderhold Properties, 303 Ga. App. 710, 714-715 (2) ( 694 SE2d 119 ) (2010) (“[A] plaintiff must do more than merely specul

2022To the extent that Edwards’s claim is 10 See George v. Hercules Real Estate Svcs., 339 Ga. App. 843, 846-847 (1) (a) ( 795 SE2d 81 ) (2016) (holding that because there was no evidence that increasing security would have affected the crime rate in general or the particular crime that injured the plaintiff, the evidence was insufficient to create a question of fact on whether the plaintiff’s injuries were proximately caused by any act or omission of the defendant); Walker v. Aderhold Properties, 303 Ga. App. 710, 714-715 (2) ( 694 SE2d 119 ) (2010) (“[A] plaintiff must do more than merely specul

2021Id. at 120-121 . 9 See Holman v. Burgess, 199 Ga. App. 61, 64 ( 404 SE2d 144 ) (1991) (a party is “not entitled to discover information concerning [another party’s] personal financial resources absent an evidentiary showing (by affidavit, discovery responses, or otherwise) that a factual basis existed for [the] punitive damage claim”). 18 It is true that based on the evidence in the record a jury would be authorized to find that Southern Fiber and Turton were innocent trespassers, in which case punitive damages would not be warranted.

2021Id. at 120-121 . 9 See Holman v. Burgess, 199 Ga. App. 61, 64 ( 404 SE2d 144 ) (1991) (a party is “not entitled to discover information concerning [another party’s] personal financial resources absent an evidentiary showing (by affidavit, discovery responses, or otherwise) that a factual basis existed for [the] punitive damage claim”). 18 It is true that based on the evidence in the record a jury would be authorized to find that Southern Fiber and Turton were innocent trespassers, in which case punitive damages would not be warranted.

2021Id. at 96.

2021See Younger v. Dunagan, 318 Ga. App. 554, 555-556 ( 733 SE2d 81 ) (2012) (holding that landlord was not liable on the plaintiff’s nuisance claim regarding a vicious dog on the premises, where the landlord relinquished 16 possession and control over the premises to the tenant); Diffley v. Marshall’s at East Lake, 227 Ga. App. 343, 344-345 ( 489 SE2d 123 ) (1997) (holding that the landlord was not liable for nuisance because the tenant was in full possession of the premises).

2021See Younger v. Dunagan, 318 Ga. App. 554, 555-556 ( 733 SE2d 81 ) (2012) (holding that landlord was not liable on the plaintiff’s nuisance claim regarding a vicious dog on the premises, where the landlord relinquished 16 possession and control over the premises to the tenant); Diffley v. Marshall’s at East Lake, 227 Ga. App. 343, 344-345 ( 489 SE2d 123 ) (1997) (holding that the landlord was not liable for nuisance because the tenant was in full possession of the premises).