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Klingensmith v. Long County

Court of Appeals of Georgia, Second Division

September 23, 2019

KLINGENSMITH et al.
v.
LONG COUNTY, GEORGIA.

          MILLER, P. J., RICKMAN and REESE, JJ.

          Miller, Presiding Judge.

         This 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.

         "Summary 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).

         So 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.

         Soon 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.

         On 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 by name.

         Steen, 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.[1] 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.

         Following 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 followed.

         1. The 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.[2] They further argue that sovereign immunity does not apply because the County was vicariously liable for the actions of its agents. We disagree.

         "[S]overeign 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).

         Thus, 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.[3] 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 immunity.

         As the 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.[4]

         2. In 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 ...


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