KLINGENSMITH et al.
LONG COUNTY, GEORGIA.
MILLER, P. J., RICKMAN and REESE, JJ.
Miller, Presiding Judge.
appeal stems from a negligence and nuisance action that
various residents who live in or around the Vickers Hill
subdivision filed against Long County, Georgia ("the
County"), due to the repeated flooding of the
subdivision. The trial court granted summary judgment to the
County on various grounds that included sovereign immunity,
failure to comply with the presentment requirement of OCGA
§ 36-11-1, and the merits. The plaintiffs now appeal
from the trial court's summary judgment order,
challenging each of the grounds on which the trial court
relied in its order. We conclude that (1) the plaintiffs'
negligence claims are barred by sovereign immunity; (2) any
claims of a permanent nuisance or trespass are barred by the
one- year presentment requirement of OCGA § 36-11-1; and
(3) the plaintiffs failed to produce evidence to create a
genuine issue of material fact on a claim for continuing
nuisance. We therefore affirm.
judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of
law. We review the grant or denial of summary judgment de
novo, construing the evidence in favor of the
nonmovant." (Citation and punctuation omitted.)
Summer v. Security Credit Svcs., LLC, 335 Ga.App.
197, 197-198 (779 S.E.2d 124) (2015).
viewed, the record shows that, around 2006, Georgia Coastal
Land Company acquired land in Long County, Georgia, with the
intent to develop and build a residential subdivision called
Vickers Hill. Georgia Coastal had P.C. Simonton &
Associates, Inc., a civil engineering firm, prepare a
preliminary plat for the subdivision to submit to the County
for approval. The County approved the plat in April 2007,
and, at that time, Georgia Coastal began selling lots to
private parties for development and construction.
after construction began in Vickers Hill, standing water
became an issue for many of the residents of the subdivision.
In 2014, after receiving many complaints of the flooding from
the residents of Vickers Hill, the County studied the issue
of flooding at the subdivision and issued a report. The
report concluded that the development of the subdivision
increased the total runoff from the area by approximately 25
cubic-feet-per-second, which was significantly higher than
the 1 cubic-foot-per-second increase that was set by the
County's ordinance. This large increase of runoff
resulted in a back-up at the culvert on the property of Carl
Steen, who lives adjacent to the subdivision at the point
where the runoff from the subdivision is released, which
served as a major drainage point for the wetlands that are
adjacent to the subdivision. The report recommended that the
pipes on Steen's property be widened, that various pipes
within the subdivision be replaced or widened, and that
various ditches and pipes within the subdivision be cleaned
and restored to the proper grade.
March 27, 2015, a notice to the County was sent by counsel on
behalf of "several families who reside in and around
Vickers Hill Subdivision" who had claims against the
county. The notice specified that it was sent to comply with
the requirements of OCGA § 36-11-1, and it stated that
the residents had claims for the continuing nuisance and
trespass caused by the insufficient drainage and resultant
standing water, which still had not been fixed and had also
led to the deterioration of the roadways within the
subdivision. The notice did not identify any of the residents
Randall and Beth Klingensmith, Walter Pelton, William
Karriker, James Wine, and Chester Bradley filed the instant
complaint on February 9, 2016, against the County, two
fictitious "John Doe" defendants that were alleged
to be employees or agents of the County, and P.C.
Simonton. Except for Steen, the plaintiffs are all
residents of Vickers Hill. The plaintiffs raised the
following claims against the County: (1) negligence due to
the County's alleged failure to oversee and monitor the
development and construction within Vickers Hill, the
County's approval of a development plan for the
subdivision that violated the County's own regulations,
and the County's failure to maintain the roadways and
signage within the subdivision; (2) nuisance arising from the
alleged failure to take sufficient action to address the
extensive flooding and standing water problems in the
subdivision; and (3) trespass for the water that intruded
upon and remained on the plaintiffs' properties due to
the inadequate drainage systems in the subdivision. Service
was effected on the County on February 20, 2016.
discovery, the County moved for summary judgment on all
claims. After a hearing, the trial court granted the
County's motion for summary judgment. The trial court
concluded that (1) the Plaintiffs' ante litem notice was
insufficient under OCGA § 36-11-1 because the notice did
not identify any of the claimants; (2) the four-year statute
of limitations (OCGA § 9-3-30 (a)) barred the claims for
negligence and trespass; (3) the negligence claim was barred
by sovereign immunity; (4) the nuisance claim for the alleged
flooding and standing water failed as a matter of law because
the record showed that the County did not construct or
maintain the drainage system; and (5) the nuisance claim for
the condition of the roads failed as a matter of law because
the County did not own the roads. This timely appeal
plaintiffs first argue that the trial court erred in its
conclusion that their negligence claims were barred by
sovereign immunity because individual government officials
may be held personally liable for ministerial acts
negligently performed, and they argue that they produced
sufficient evidence to show that the County's agents were
negligent in following the County's own subdivision
regulations in relation to the Vickers Hill
subdivision. They further argue that sovereign immunity
does not apply because the County was vicariously liable for
the actions of its agents. We disagree.
immunity is the immunity provided to governmental entities
and to public employees sued in their official
capacities." (Citation omitted.) Ratliff v.
McDonald, 326 Ga.App. 306, 309 (1) (756 S.E.2d 569)
(2014). On the other hand, "[t]he doctrine of official
immunity, also known as qualified immunity, offers public
officers and employees limited protection from suit in their
personal capacity." (Citation omitted.) Grammens v.
Dollar, 287 Ga. 618, 619 (697 S.E.2d 775) (2010). It is
true that official immunity afforded to individual public
employees is waived in cases where ministerial acts were
negligently performed or where official acts were performed
with malice or an intent to injure. See id. at 619-620.
However, "sovereign immunity and official immunity are
not synonymous, but are separate, related doctrines.
Sovereign immunity . . . refers to the immunity traditionally
granted governmental entites, such as the state or its
counties. Official immunity, on the other hand, is applicable
to government officials and employees sued in their
individual capacities." (Citations and punctuation
omitted.) Norris v. Emanuel County, 254 Ga.App. 114,
116 (1) (561 S.E.2d 240) (2002). Instead, our law is clear
that "[a] county may be liable for a county
employee's negligence in performing an official function
only to the extent the county has waived sovereign
immunity." (Citation omitted.) Ratliff, supra,
326 Ga.App. at 309 (1).
to pursue claims against the County, the plaintiffs must
point to a waiver of the County's sovereign immunity
regardless of whether any individual county official does or
does not have official immunity from the plaintiffs'
claims. The only waiver they point to is the
waiver of sovereign immunity for claims alleging the
negligent performance of ministerial duties. That waiver,
however, only applies to cities and does not apply to
counties. Rutherford v. DeKalb County, 287 Ga.App.
366, 367-369 (1) (a), (b) (651 S.E.2d 771) (2007). Compare
OCGA § 36-33-1 (b) ("For neglect to perform or
improper or unskillful performance of their ministerial
duties, [municipal corporations] shall be liable.") with
OCGA § 36-1-4 (setting out the sovereign immunity of
counties and containing no such waiver for ministerial
duties). Because "[a] waiver of sovereign immunity must
be established by the party seeking to benefit from that
waiver, " (Citation omitted.) Liberty County v.
Eller, 327 Ga.App. 770, 771 (1) (761 S.E.2d 164) (2014),
and the plaintiffs did not (and do not) point to any other
purported waiver of sovereign immunity by the County for
their negligence claims, they are barred by sovereign
parties correctly point out, however, "the Constitution
provides for a wavier of sovereign immunity where a county
creates a nuisance which amounts to an inverse
condemnation." (Citation omitted.) Eller,
supra, 327 Ga.App. at 772 (1). Therefore, the plaintiffs'
nuisance claims are not barred by sovereign immunity to the
extent they constitute an inverse condemnation.
two related claims of error, the plaintiffs also argue that
the trial court erred in its conclusion that their nuisance
claims were barred by the requisite four-year statute of
limitations, OCGA § 9-3-30 (a), and that the trial court
erred in concluding that they failed to comply with the
presentment requirement ...