By Elizabeth W. Boswell, Equire Carol Clark Law Editorâs
C. The Causation Requirement
Liability of uphill owners is by no means absolute. Regardless of whether a plaintiff âs claims sound in nuisance, trespass, or negligence, causation remains a central element of a plaintiff âs case, as an essential element of a tort claim under Georgia law is the existence of damage proximately caused by the alleged tortious act.1 A temporal connection between the uphill project and conditions downhill is not enough, because â[t]he mere fact that one event chronologically follows another is along insufficient to establish a causal relationship between them.â In order to prevail, a plaintiff must âlink the work performedâ uphill to his drainage problems in order to establish causation.2 As to a claim of nuisance, â[t]he essential element of nuisance is control over the cause of the harm. The tortfeasor must either be the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance.â3
An example of a plaintiffâs failure to prove causation is Bennett Street Properties, L.P. v. CSX Transportation, Inc., 248 Ga. App. 686, 548 S.E.2d 619 (2001). In Bennett Street, the Georgia Court of Appeals affirmed a directed verdict for the defendant property owners, holding that the plaintiff had failed to present a prima facie showing that its adjoining property owner acted in any way to cause or contribute to the plaintiffâs intermittent flooding, where the plaintiffâs expert did not know whether a culvert on the adjoining property actually caused the flooding, where the flooding may have been the result of uphill construction, and no studies had been conducted to determine whether water from sources other than the culvert might have caused the flooding problem.4
The recent case of Lore et al. v. Suwanee Creek Homeowners Association, Inc., 305 Ga. App. 165, 699 S.E.2d 332 (2010) further demonstrates the pivotal nature of the causation requirement. In Lore, Rebecca and David Lore sued their homeownersâ association, alleging claims for nuisance, trespass, and negligence based on water runoff from a recreation area owned by the association, adjacent to the Loresâ property. The Lores also asserted a personal injury claim based upon injuries Mrs. Lore sustained when the ground upon which she was standing collapsed, attributing the collapse to the repeated flowing and storm water runoff washing away the earth under what appeared to be solid ground. The trial court granted summary judgment to the homeownersâ association as to the Loresâ personal injury claims and denied summary judgment as to the remaining claims for trespass, nuisance, and negligence based on water runoff. The Court of Appeals reversed both of these decisions. As to the stormwater runoff claims, the Court of Appeals reiterated the rule that â[c]ausation is an essential element of nuisance, trespass, and negligence claimsâ:
To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendantâs conduct and the alleged injury. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.
Lore et al. v. Suwanee Creek Homeowners Association, Inc., 699 S.E.2d at 338-39. The Court closely scrutinized the Loresâ evidence, and concluded as follows:
Here, pretermitting the efficacy of SCHOAâs other defenses, the Lores have failed to demonstrate a causal connection between their damages and any action (or inaction) on the part of SCHOA that artificially increased the water runoff from its upper land to the Loresâ lower property or caused the water to concentrate, collect, and discharge on their property in a harmful manner different from that which it would have received if it simply ran down upon it by the laws of gravity. Mrs. Loreâs testimony that she observed water âcoming specifically from the [SCHOA] propertyâ from pipes is simply insufficient. There is no evidence regarding the amounts or sources of water runoff from the Recreation Area to the Loresâ property before the property was developed. And the Lores have presented no testimony, expert or otherwise, that any damage to their property was a result of an increase in quantity or concentration of water caused by SCHOA and different than if â[the water] simply ran down upon it from the upper [property] by the law of gravitation. Rather, the Lores rely on theÂ mere fact that the drainage ditch was not installed by the developer or SCHOA thereafter, but they do not causally link this fact to the soil and landscaping washing away. The Loresâ failure to present evidence of proximate cause is fatal to their claims for nuisance, trespass, and negligence based on water runoff from SCHOA property. Accordingly, the trial court erred by denying summary judgment to SCHOA on these claims.
Lore, 699 S.E.2d at 339.
These findings are entirely consistent with Georgia precedent on the causation issue. What makes them remarkable in the Lore case, however, is the other half of the Courtâs opinion. The trial court had granted summary judgment to the homeownersâ association on Mrs. Loreâs personal injury claims. The Court of Appeals reversed that ruling, finding that there were genuine issues of material fact as to (a) whether the association had failed in its duty to conduct a reasonable inspection of the sinkhole and surrounding area, and (b) whether Mrs. Lore had exercised ordinary care for her personal safety. The Court of Appeals specifically concluded âthat the issue of whether SCHOA had constructive knowledge of the hazards associated with the sinkhole and surrounding areas were raised both before the trial court and on appeal.â Id. What makes the Courtâs ruling on the stormwater runoff issues remarkable is the Courtâs apparent acknowledgment that the sinkhole presented or could have presented a hazard, and that jury questions existed regarding whether the homeownersâ association could be held liable for Mrs. Loreâs personal injuries. Without saying so in so many terms, the Courtâs opinion seems to suggest that while the Lores failed to establish proximate cause of increased water runoff, they had adequately presented evidence that Mrs. Loreâs personal injuries may have been proximately caused by the actions or inactions of the homeownersâ association relative to the sinkhole. An explanation for this apparent contradiction may be the fact â although the opinion is somewhat unclear on this point — that the sinkhole was on the homeownersâ associationâs recreation area property and not on the Loresâ property, whereas the Loresâ claims for trespass and nuisance related to stormwater runoff onto their own property. Nevertheless, in view of the Courtâs receptiveness to Mrs. Loreâs personal injury claims, Lore clearly demonstrates that proximate cause absolutely must be established for a plaintiff âs water runoff claims to be viable.
Related to the causation requirement is the issue of the plaintiff âs own contributory negligence. To the extent that the plaintiff âs claims sound in negligence, evidence of the plaintiff âs contributory negligence or failure to avoid consequences will be admissible. In Bailey v. Annistown Road Baptist Church, Inc., the plaintiff asserted claims for negligence, trespass, and nuisance against the church and county in connection with water intrusion on her property. At issue in the case was Baileyâs decision not to install French drains on her property with funds received from a partial condemnation by the county, which defendants contended would have significantly alleviated the plaintiff âs water problems. The trial court admitted the evidence of Baileyâs decision not to install French drains, and the jury initially found Bailey 50 percent at fault for the damages to her property. Although the Court of Appeals reversed the juryâs first verdict finding Bailey 50 percent at fault (based upon faulty jury charges), the Court of Appeals affirmed the juryâs second verdict finding Bailey 49 percent at fault and found no error in the trial courtâs admission of evidence regarding Baileyâs decision not to install drains.5 As the Court of Appeals explained, âevidence showing that the plaintiff âis to some degree responsible for the injury or damages claimedâ is relevant and admissible for reduction and apportionment of damages in cases involving injury to persons or property. . . . âClosely allied to the doctrine of contributory negligence is the rule of âavoidable consequences,â which denies recovery for any damages which could have been avoided by reasonable conduct on the part of the plaintiff.â . . . [A] plaintiff injured by the negligence of another âmust mitigate his damages as far as is practicable by the use of ordinary care and diligence.â 6
To completely prevail, therefore, a plaintiff must establish that the defendant proximately caused his damages, and that there was no âreasonable conductâ on the part of the plaintiff which could have avoided or lessened his damages.
D. The Role of Non-Expert Testimony
Expert testimony is not always dispositive in surface water invasion cases. Defendants cannot be assured that their expertsâ testimony will carry the day. In Ponce de Leon Condominiums et al. v. DiGirolamo et al., 238 Ga. 188, 232 S.E.2d 62 (1977), a seminal Georgia Supreme Court surface water case, landowner DiGirolamo brought suit against the developer of adjacent condominiums, alleging that the building of the condominiums had caused his property to receive unnatural quantities of surface waters. The trial court awarded actual and exemplary damages, injunctive relief, and attorneysâ fees, and the Georgia Supreme Court affirmed. Among the errors enumerated by Ponce de Leon Condominiums was the contention that the award of injunctive relief was contrary to the evidence. In support of this contention, the appellant âpointed out that all of the expert testimony introduced at trial was to the effect that the engineering design utilized by appellants could not in theory have resulted in the accumulation or discharge of surface waters onto appelleeâs property in excess of that which existed under natural conditions prior to the development.â7 The Georgia Supreme Court held, however, that the jury âwas authorized to conclude otherwise from the nonexpert testimony introduced, the photographic evidence of the conditions existing before and after development, and their own site inspection during trial. The record also provides ample evidence upon which the jury could conclude that the problem would continue unless enjoined by the Court.â8 In other words, even in the face of uncontroverted expert testimony that an engineering design is sufficient to prevent discharges of unnatural quantities of surface water, a plaintiff can prevail based upon his non-expert testimony and photographic evidence to the contrary. Ponce de Leon is and has been the law of Georgia for three decades and has effectively shifted the odds in surface water cases greatly in favor of plaintiffs and against defendants, no matter how unassailable defendants may believe their engineering practices to be.9
Newtonâs Crest Homeownersâ Association v. Camp et al., 2010 WL 3719894 (Ga. App. Sept. 24, 2010) further illustrates the role of lay testimony versus expert testimony and demonstrates that, while expert opinion can preclude a grant of summary judgment, it cannot support it. In Newtonâs Crest, Donald and Brenda Camp owned property in Gwinnett County that was downhill from the Hunterâs Pond subdivision, which was developed in the 1970s.Â Historically excess stormwater from Hunterâs Pond drained into a natural creek on the Campsâ property. In 2001 developer Kennedy began clearing land on a new subdivision, Newtonâs Crest, uphill from Hunterâs Pond. According to Donald Camp, Kennedyâs activities at Newtonâs Crest caused an increase in the amount and velocity of stormwater, silt, and mud running onto his property and into his creek from Hunterâs Pond each time it rained, causing substantial erosion, tree loss, and other damage to his property and reducing its value. Camp testified that he had lived on his property for over thirty years and that he had ânever had any problemsâ with excess stormwater running onto his property until Kennedy cleared the Newtonâs Crest property and began development of the subdivision. The Camps presented photographs of their property that showed that they alleged to be the widening of their creek caused by erosion and the increase in runoff from Hunterâs Pond. The Camps filed suit against Kennedy and others, alleging that Kennedy was negligent when it developed the Newtonâs Crest subdivision and modified Hunterâs Pond, and that the increase in stormwater runoff resulting from Kennedyâs actions constituted a nuisance and continual trespass onto their property.
Kennedy moved for summary judgment, which motion the trial court denied. On appeal, Kennedy contended that the denial of his motion for summary judgment was in error, arguing that the Camps failed to present any evidence that any act of omission on the part of Kennedy caused of contributed to their alleged damages. According to Kennedy, the campsâ allegations regarding the cause of the excess stormwater runoff and siltation were based upon nothing but their âmere speculation and conjecture,â were insufficient to eliminate other possible causes for the increased stormwater runoff, and were insufficient to contradict Kennedyâs expertâs opinion that Kennedy was not responsible for any increase in the runoff. The Court of Appeals disagreed.10
The Court of Appeals reiterated that causation is an essential element of nuisance, trespass, and negligence claims, and the rule that lower lots owe a servitude to higher lots provided the owner of the latter has done no act to increase stormwater flow by artificial means. Applying these principles, the Court of Appeals held that âthe questions of whether Kennedyâs acts or omissions artificially increased the amount or velocity of water discharged onto the Campsâ property and whether such acts or omissions caused or contributed to the Campsâ damages are ordinarily for the jury to decide; the trial court may only resolve these questions on a motion for summary judgment if the evidence is either plain and undisputed or based purely on speculation or conjecture.â11 The Court reiterated Campâs testimony that he had never had any problems with excess stormwater runoff until Kennedy began clearing the Newtonâs Crest subdivision in 2001, that Kennedyâs work on the subdivision property and on Hunterâs Pond significantly increased the amount and velocity of stormwater, silt, and mud running onto his property and into his creek each time it rained, that the excess runoff caused substantial erosion, tree loss, and other damage to his property, and that even after Kennedy modified the Hunterâs Pond spillway in 2003, the runoff problem because worse. The Court found this testimony to be competent and admissible evidence, not âmere speculation or conjecture.â12 Kennedy presented an expert affidavit in which the expert opined that Kennedyâs âdevelopment of Newtonâs Crest did not increase the peak rate of storm water discharge onto [the Campsâ] property above and beyond the pre-development peak rate, nor did it artificially concentrate the storm water discharge [onto their] property.â The Court held, however, that such expert opinion evidence âdid not entitle Kennedy to summary judgment, but simply was additional evidence on the issue of causation for the jury to consider. âOpinion testimony can preclude (but not support) a grant of summary judgment.ââ13 The Court cited to Ponce de Leon v. DiGirolamo for the proposition that notwithstanding a defendantâs expertâs opinion that a particular engineering design âtheoretically could not have caused on increase in the discharge of water onto the plaintiff âs property, the jury was authorized to conclude otherwise from the plaintiff âs nonexpert testimony and the photographic evidence presented.â14 Expert opinions are not dispositive and cannot be relied upon as such.
End of Part Two -To be continued.
- See, e.g., Walls et al. v. Moreland Altobelli Associates, Inc., 290 Ga. App. 199, 659 S.E.2d
418 (2008). ↩
- Walls v. Moreland Altobelli Associates, Inc., 290 Ga. App. at 200-01, 659 S.E.2d at 420-21. ↩
- Grinold v. Farist, 284 Ga. App. 120, 122, 643 S.E.2d 253, 255 (2007). ↩
- Bennett Street Properties, L.P. v. CSX Transportation, Inc., 248 Ga. App. 686, 548 S.E.2d
619 (2001). ↩
- Bailey v. Annistown Road Baptist Church, Inc., 301 Ga. App. 677, 689 S.E.2d 62 (2009). ↩
- Id., 301 Ga. App. at 682, 689 S.E.2d at 69 (citations omitted). See also Goode v. Mountain Lake Investments, LLC, 271 Ga. 722, 524 S.E.2d 229 (1999), further discussed in Section E below, in which the Georgia Supreme Court affirmed the trial courtâs requirement that the uphill defendant contribute 50 percent of the cost to construct a ditch across the downhill plaintiff âs property, where the plaintiffs were 50 percent responsible because they had allowed the ditch to become clogged. ↩
- Ponce de Leon Condominiums et al. v DiGirolamo et al, 238 Ga. at 190-91, 232 S.E.2d at 65 (1977). ↩
- Ponce de Leon v. DiGirolamo, 238 Ga. at 191, 232 S.E.2d at 65. ↩
- See also, Green v. Eastland Homes, Inc. et al., 284 Ga. App. 643, 647, 644 S.E.2d 479, 482 (2007)(citing to Ponce de Leon v. DiGirolamo for the proposition that the jury could rely on nonexpert testimony and photographs regarding runoff to reject expert testimony to the contrary). ↩
- Newtonâs Crest Homeownersâ Association v. Camp et al., ., 2010 WL 3719894. ↩
- Id. ↩
- Id. ↩
- Id. ↩
- Id., citing to Ponce de Leon v. DiGirolamo, 238 Ga. 188, 232 S.E.2d 62 (1977). ↩