Georgia Court Upholds Substantial Verdict for Storm Water Damages

In the opinion in the case of Ingles Markets, Inc. v. Kempler, 730 S.E.2d 444 (2012), the Georgia Court of Appeals recently upheld a jury verdict awarded in a Hall County court to the owners of land next door to a commercial shopping center.  At the trial of the case, the jury awarded damages for diminution in the value of the land, damages for the injury to the peace and happiness of the plaintiffs, damages for the costs of remediation, and attorneys' fees and punitive damages.   The court held that the evidence at the trial showed the defendants had control over the cause of the harm and were responsible for the full range of damages awarded by the jury.

The court also addressed the Georgia statute regarding apportionment of liability to nonparties, O.C.G.A. Section 51-12-33(c), and held that the trial court's limitation of the apportionment to an identified nonparty was not error; the trial court was not required under the statute to require consideration of all possible sources of the storm water in assessing liability, and was only required to instruct the jury to consider the sources identified by the defendants pursuant to the notice provision of the statute. 

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.