The Georgia Supreme Court examined the issue of the time for bringing a nuisance claim against a public utility creating a nuisance in its opinion in Oglethorpe Power Corp. v. Forrister, Case No. S10G1244, issued on June 13, 2011. In its decision, the court discussed the difference between a permanent nuisance, and a nuisance that is not considered permanent, and the impact of the defined difference on how long a neighbor has to file a claim for damages. The court held that a power company creating a noise nuisance was deemed to be a permanent nuisance, but that a change in the nature of the aggravating noise at a certain point in time could trigger a new cause of action. Accordingly, while the plaintiffs had filed their claim too late in arguing that the electric utility was a nuisance in general, the court held the plaintiffs did have a claim for the added nature of aggravation that occurred when plant changes were made within the four (4) year statute of limitations. The court's exposition of the logic it employed is excellent; many nuisance principles are explained in an understandable way. But the opinion will undoubtedly lead to confusion.
Any attempt to understand the opinion requires an examination of the difference between a continuing permanent nuisance and a nuisance that is deemed continuing, but abatable. A continuing nuisance is any condition causing noise, aggravation or injury to another land owner that occurs repetitively over time due to conditions on land. For example, a stormwater condition damaging a down hill owner from construction of a detention pond on a property may be deemed to be a continuing nuisance.
Continuing nuisances can be deemed permanent or abatable. Where the defendant's injury causing property can be modified or returned to its pre-nuisance condition, the condition is deemed abatable. An abatable condition is simply one that can be stopped.
Where the defendant's condition on its land cannot be abated, then in such a case the law deems the condition to be permanent. In the most simple terms, a permanent nuisance exists where it would hurt public policy interests, or where it would be too difficult or expensive to stop it.
The plaintiff's available remedies are also different depending on whether the nuisance is deemed permanent, or abatable. An abatable nuisance gives rise to a new cause of action for damages each day the nuisance accrues. A neighbor can literally sue forever until the offending land owner makes a change that stops the injury. On the other hand, a plaintiff can only sue once for a permanent nuisance, and must obtain recovery for the entire injury in one suit. This recovery is generally the decline in the market value caused by the nuisance plus the general damages for the injury to property rights.
The distinction between a permanent nuisance and an abatable nuisance is defined by the law. Government or private utilities generally get the benefit of being deemed permanent. In general, public utilities are deemed to be permanent nuisances in that the utility cannot be required by law to remove the condition causing the injury.
An example of a public utility deemed permanent is a power plant. The policy behind the law is to protect uses that benefit the public by shortening the statute of limitations and the extent of damages over time. In other words, you cannot force Georgia Power to tear down a plant no matter how noisy it is; and you cannot sue Georgia Power forever once it builds a power plant in your backyard even though you hear it every day for years and years.
In all nuisance cases, the statute of limitations is important because changes to land causing injury to a neighbor are usually long lasting. A statute of limitations is a law that cuts off a plaintiff's claim after so many years following the occurrence of the injury. The statute of limitations is four (4) years for a nuisance claim.
If a continuing nuisance is deemed to be a permanent nuisance, then the statute of limitations runs from the date of inception of the nuisance, and does not renew. A plaintiff gets one shot at recovery for a permanent nuisance -- except under the circumstances at issue in the Oglethorpe case discussed below.
If the nuisance is deemed abatable, then a new statute of limitations runs each day that the act creating the nuisance occurs. For instance, where a condition on land causing erosion to a down hill property owner could be modified to stop the nuisance, the claim would renew each time the up hill land owner discharges water in a way that causes injury to the down hill owner. For example, the fact that the up hill owner's land began to create the nuisance due to changes seven (7) years ago would not matter -- even though the statute of limitations is only four (4) years. (Control over the condition that creates the harm is deemed to be the act that creates it; if a defendant can do something different to stop the harm but does not, then each time it rains, a new claim arises. )
In the facts underlying the opinion in Oglethorpe Power Corp., the plaintiffs brought suit against an electric plant because it was too noisy. However, the plant had been built seven (7) years before the plaintiffs filed suit. Accordingly, the court held that the four (4) year statute of limitations for nuisance claims had expired before the suit was filed. Yet, the court also held that the plaintiffs could maintain a claim for injuries caused due to alleged plant changes that had occurred less than four years before the plaintiffs filed suit.
The confusion that could result from the opinion is in discussion regarding the type of harm that may create a new cause of action from a permanent nuisance. The court held that the plaintiffs could not complain for an adverse change in the extent and the amount of the noise, but could complain for an adverse change in the nature of the noise. The court found that the plaintiffs in that case had presented evidence of a change in the nature of the noise within the four years prior to suit.
The court seemed to say that a defendant could ramp up the volume without triggering a new nuisance claim from the act of increasing the intensity of the use, but that if the defendant made a plant change that altered the character of the noise in a new way, then a new claim would arise.
Perhaps a change in the sound frequency or pitch of noise would be actionable regardless of the expiration of the original claim, but a change in the volume would not. In erosion or storm water cases, the change in intensity of rain fall events would not trigger a new cause of action -- if the nuisance is deemed permanent -- but a change in degree of sedimentation due to new land disturbance might.
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