Whether Nuisance to Property Exists Is Jury Question

In Weller v. Blake, the Georgia Court of Appeals issued an opinion on March 27, 2012 that addressed the issue whether a neighbor's outdoor fireplace could amount to a nuisance.  315 Ga. App. 214 (2012).  In reversing the trial court's decision to dismiss the case, the court noted that the existence of a nuisance involves a determination of an objective standard by the jury.  The jury is to determine whether a reasonable person would suffer hurt, annoyance, inconvenience or damage due to the facts adduced by the plaintiff.  O.C.G.A.  Section 41-1-1.  Although the court noted that an alleged injury cannot be fanciful or the type that would affect only one of "fastidious taste," smoke from an outdoor fireplace could amount to a nuisance where the facts showed the smoke was affecting the plaintiffs inside their home.   The court also held that the claim supported a claim of negligence in addition to a claim of nuisance.

The court further held that a plaintiff may recover damages for the annoyance and inconvenience of the facts allegedly giving rise to the nuisance without proof of actual monetary loss.  The range of recovery for such general damages was intended to compensate the injured plaintiffs for the loss of enjoyment of the plaintiffs' property rights.  Damages for a nuisance also included punitive damages and attorneys' fees.  Even where it is clear that the defendant did not maliciously start the nuisance, the failure to abate it after receiving notice of the plaintiffs' claim could show conscious indifference to the circumstances.

The opinion in Weller v. Blake, supra, did not create any new law, but instead contained a thorough discussion of the current state of Georgia law with regard to nuisance claims.