In the recent Georgia Court of Appeals opinion in Landings Ass'n, Inc. v. Williams, Case Nos. A10A1955, A10A1956. (Ga. App., March 25, 2011), the surviving relatives of a woman sued a property owners association for nuisance and other claims arising out of a fatal alligator attack. Among other things, the court dismissed the nuisance claim holding that a nuisance claim arises where a use or lack of maintenance of one person's property interferes with another person's ownership of another tract. The court held the agent causing injury must emanate from the defendant's property. In that case, the alligator was not deemed to be such an agent of injury even though the evidence indicated the alligator may have lived in the association's lagoon.
The opinion in Landings Ass'n, Inc., follows a classic definition of nuisance as a different species of tort claim. Presumably, a person who controls the agent of injury would still be liable regardless whether the control person owns the property where the injury inducing agent originates. For example, other cases hold that control is the primary element and not ownership. Also, the court of appeals noted the wild alligator was not controlled by the association. Accordingly, the case does not alter the general principal that an association owning or controlling a failing storm water system with its pipes and detention or retention ponds is responsible for damages that emanate from the failing system.
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