In a recent opinion in a case considered by the Georgia Court of Appeals, the court reversed an order of a Georgia trial court that dismissed a claim. In Newton's Crest Homeowners' Ass'n v. Camp, 2010 WL 3719894, 4 (Ga.App., Sept. 24, 2010), the court held that testimony from property owners that flooding never started until a developer had performed work on its development created an issue for the jury to decide. Testimony from the developer's engineer that the pond was designed to reduce post development storm water flows was not enough to support the developer's motion for summary judgment. The court held that opinion testimony creates a jury issue in the face of testimony of first hand observations from witnesses who observe when and how storm water damages occurred.
In the Camp case, the property owner testified that he had never had any problems with flooding until the developer started clearing the development and that the development substantially increased the volume and speed of stormwater runoff from a pond that the developer used as a detention pond. The court held that this evidence was sufficient to state a claim for a jury to determine even in light of testimony from the developer's licensed engineer that the pond functioned as designed. The court indicated that it was up to the jury to say whether the engineer's testimony was accurate, or whether the property owners were telling the truth. The court cited appellate opinions in DeKalb County v. McFarland, 231 Ga. 649, 653(2)(g), 203 S.E.2d 495 (1974), McGonagil v. Treadwell, 216 Ga.App. 850, 853(1), 456 S.E.2d 260 (1995) (“Opinion testimony can preclude (but not support) a grant of summary judgment.”)
The court also ruled in favor of a homeowner association that the developer had cross claimed against based on an indemnity contract under which the developer had attempted to assign its obligations to the association. The court held the assignment violated a Georgia law that prohibits a party from attempting to contractually evade liability for the party's sole negligence.