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Georgia Court of Appeals Affirms that Cities Must Have Dominion or Control over Private Property for a Nuisance Claim to Stand

June 26, 2018

 

                Jack Waldrip filed an action against the City of Gainesville (the “City”) for damages which resulted from the flooding of Waldrip's property.  City of Gainesville v. Waldrip, 811 S.E.2d 130 (Ga. Ct. App. 2018), reconsideration denied (Mar. 29, 2018).  Specifically, Waldrip alleged nuisance, trespass, and the taking of the property through per se and inverse condemnation.  The City was granted partial summary judgment and appealed, arguing that the trial court should have granted summary judgment on all claims.

 

                Waldrip’s property flooded on five occasions from 2008 to 2013.  Waldrip concluded that the flooding resulted from trash, debris, and other material clogging his surface water drainage system.  Further, Waldrip claimed that the City caused the drainage system to clog because it collected storm water in a basin uphill from Waldrip’s property and drained the basin downhill.

 

                The City argued that it did not have a duty to abate the flooding on Waldrip's property and it did not take any action that altered or increased the natural flow of water onto Waldrip's property.  Therefore, it was not the cause of any flooding.  To prove that the City created an abatable nuisance, Waldrip was required to provide sufficient evidence to create a factual question as to (1) whether the private property onto which the Rainey Street culvert discharged water was part of the drainage system that the City had undertaken to maintain, and (2) whether the City's maintenance (or lack thereof) of the drainage system caused the repeated flooding.  Waldrip was unable to present any evidence that the City had exercised any dominion or control over the uphill property.  Therefore, the City argued that because the problematic debris, trash, and sediment originated from and are picked up on this private property, it was absolved of liability.  The Georgia Court of Appeals agreed and held that the City was entitled to summary judgment on all claims and the Georgia Supreme Court has not granted certiorari.

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