In a case asserting damages to real property due to defects in construction, the measure of damages is the cost to repair the problem, or alternatively, the diminution in value of the property as measured at the time of injury. In the recent case of Pollman v. Swan, Appeal No. S10G1989 (Slip. op., Ga. Oct. 3, 2011), the Georgia Supreme Court followed this rule and affirmed a decision of a trial court and an opinion of the Georgia Court of Appeals dismissing a claim for construction damages. The Court held that evidence of the sales price of the property in 2008 as measured against the purchase price years earlier was not evidence of the diminution of the value of the property at the time of injury in 2004. Since the plaintiffs did not introduce any evidence of the cost of repair of the property, the plaintiffs could not maintain their claims.
A similar rule applies in other real property related cases where a plaintiff is claiming damages. For example, there are cases in Georgia that apply a similar rule to nuisance claims. On the other hand, one difference in the range of recovery of damages for the tort of nuisance is that -- except in cases against counties -- plaintiffs can recover general damages and mental distress damages related to the interference with the enjoyment of the property. These damages are recoverable based on the enlightened conscience of the jury. However, it is still important to show some special damages related to repair costs in such cases.
