Georgia Code, Volume 29A, 2012 Supplement

2012·19.1 MB·English

by  State of Georgia

OFFICIAL CODE OF GEORGIA
ANNOTATED
2012 Supplement
IncludingActs ofthe 2012 Regular Session ofthe General Assembly
Prepared by
The Code Revision Commission
The Office ofLegislative Counsel
and
The Editorial Staff ofLexisNexis®
Published Under Authority ofthe State of Georgia
Volume 29A
1997 Edition
Title 41. Nuisances
Title 42. Penal Institutions
IncludingAnnotations to the Georgia Reports
and the GeorgiaAppeals Reports
Place in Pocket of Corresponding Volume of
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ISBN 978-0-327-11074-3 (set)
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5012029
(Pub.41805)
THIS SUPPLEMENT CONTAINS
Statutes:
All laws specifically codified by the General Assembly ofthe State of
Georgia through the 2012 Regular Session ofthe General Assembly.
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tution of the United States by the Attorney General of the State of
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OtherAnnotations:
References to:
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Georgia State University Law Review.
Mercer Law Review.
Georgia State Bar Journal.
Georgia Journal ofIntellectual Property Law.
American Jurisprudence, Second Edition.
American Jurisprudence, Pleading and Practice.
American Jurisprudence, Proofof Facts.
American Jurisprudence, Trials.
Corpus Juris Secundum.
Uniform Laws Annotated.
American Law Reports, First through Sixth Series.
American Law Reports, Federal.
Tables:
In Volume 41, a Table Eleven-A comparing provisions of the 1976
Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table
Eleven-B comparing provisions of the 1983 Constitution of Georgia to
the 1976 Constitution of Georgia.
An updated version of Table Fifteen which reflects legislation
through the 2012 Regular Session ofthe General Assembly.
iii
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IV
.
TITLE 41
NUISANCES
Chap.
1. General Provisions, 41-1-1 through 41-1-10.
2. Abatement ofNuisances Generally, 41-jM through 41-2-17.
3 Places Used forUnlawful Sexual and DrugActivities, 41-3-1
through 41-3-13.
CHAPTER
1
GENERAL PROVISIONS
Sec. Sec.
41-1-7. Treatmentofagricultural facil- 41-1-10. Hunting operations not nui-
ities and operations and forest sances under certain condi-
land as nuisances. tions.
41-1-1. Nuisance denned generally.
—
Law reviews. For survey article on Rev. 447 (2005); and58MercerL. Rev. 477
real propertylawfortheperiodfromJune (2006). For survey article on zoning and
1, 2002 to May 31, 2003, see 55 Mercer L. land use law, see 59 Mercer L. Rev. 493
Rev. 397 (2003). For annual survey of (2007) and 60 Mercer L. Rev 457 (2008).
zoning and land use law, see 57 Mercer L.
JUDICIAL DECISIONS
Analysis
General Consideration
Power of Municipality to Create Nuisance
Classes of Nuisances
4. Continuing Nuisance
Manner of Proof
Illustrative Cases
General Consideration other and the fact that the act done may
unCcoonusnttiytutniooin.sael.o—rdiAnatnricael cdoueretmdeed- bonetehinentrgwifiastehneubiedsaalanmwcafegu.elAsihtnaculaliusnsaoentscekieseiscpopimteprflmreaot-me
clared a Effingham County, Georgia noise when the action creating the nuisance
ordinance to be unconstitutional and the nrstoccurs andgivesrisetoasinglecause
county did not appeal that decision. faction that initiates the running ofthe
Effingham County Bd. of Comm'rs v. statuteoflimitation. Onthe otherhand, a
Shuler Bros., 265 Ga. App. 754, 595 nuisance is not permanent if it causes
S.E.2d 526 (2004). continuing damage and is one which can
Nuisances are anything that cause and shouldbe abated bythe person erect-
hurt,inconvenience,ordamagetoan- ing or maintaining it. In that case, every
2012 Supp. 1
41-1-1 NUISANCES 41-1-1
continuance of the nuisance is a fresh church's motion for judgment notwith-
nuisance for which a fresh action will lie standingtheverdictin apropertyowner's
andafreshstatuteoflimitationsbeginsto action for trespass and nuisance on the
run. Oglethorpe Power Corp. v. Forrister, ground that there was an absence ofevi-
303 Ga. App. 271, 693 S.E.2d 553 (2010). dence of negligence or proximate cause
Qualification on use ofproperty. linking the church to the owner's injuries
Restrictive covenant prohibiting "nox- because the evidence showed that excess
ious or offensive activity" or anything rainwater flowed from the church prop-
"which may be or may become an annoy- erty onto the owner's property in a con-
ance or nuisance" is too vague, indefinite tinuing manner; even though the church
and uncertain for enforcement in a court did not cause the initial leak, own the
ofequity by injunction, except insofar as water that leaked, or have any responsi-
these words may be included within the bilityforthecompactionofthesoilaround
definitionofanuisance. Douglasv. Wages, the underground utility lines, the jury
271 Ga. 616, 523 S.E.2d 330 (1999). could find that the initial leak caused a
Cited in Meredith v. Thompson, 312 condition on its property that in turn
Ga. App. 697, 719 S.E.2d 592 (2011). caused continued excessive floodingofthe
Power ofMunicipality to Create owner's property thereafter. Bailey v.
Nuisance Annistown Rd. Baptist Church, Inc., 301
Ga. App. 677, 689 S.E.2d 62 (2009), cert,
City could not be held liable for an denied, No. S10C0669, 2010 Ga. LEXIS
alleged nuisance created by the home- 468 (Ga. 2010).
owners' decision to plug an underground
drainage pipe because there was no evi- Manner ofProof
dence that the city owned the pipe or
Insufficient allegations.
exerciseddirectdominionandcontrolover Because an Olympic Committee acted
the pipe. Merlino v. City ofAtlanta, 283 in a lawful manner in operation of an
Ga. 186, 657 S.E.2d 859 (2008). Olympic Park, and no evidence was pre-
Classes ofNuisances sented to the contrary, a nuisance claim
against it lacked merit. Anderson v. At-
4. Continuing Nuisance lanta Comm. forthe Olympic Games, Inc.,
Continuance gives rise to new 261 Ga. App. 895, 584 S.E.2d 16 (2003),
cause ofaction. aff'd, sub nom. Atlanta Comm. for the
Where a municipality negligently con- Olympic Games, Inc. v. Hawthorne, 278
structs orundertakes tomaintain a sewer Ga. 116, 598 S.E.2d 471 (2004).
or drainage system that causes the re- Illustrative Cases
peated flooding of property, a continuing
abatable nuisance is established, for Flooding after pluggi—ng of under-
whichthe municipalityis liable. Martinv. ground drainage pipe. In a suit in-
City of Ft. Valley, 235 Ga. App. 20, 508 volving two landowning couples, it was
S.E.2d 244 (1998). error to grant summaryjudgment to the
As the home buyers presented evidence second couple on the first couple's nui-
thatadeveloper'sactionsinclearingtrees sance claim after the second couple
from the adjacent property increased the plugged an underground drainage pipe.
surface water flow and erosion on their Although the act of plugging the pipe
land and made their drainage problem mightnothavebeenwrongfulinitself,the
worse, thesefactswould supportafinding potential consequence ofthe uphill flood-
ofa continuing nuisance. Walkerv. John- ing ofthe first couple's property after the
son, 278 Ga. App. 806, 630 S.E.2d 70 pipe was plugged created an issue offact
(2006), overruled on other grounds, as to whether the couple could be held
Kleber v. City of Atlanta, 291 Ga. App. liable for creating a continuing nuisance.
146, 661 S.E.2d 195 (2008). Merlino v. City ofAtlanta, 283 Ga. 186,
Duty of wrongdoer to terminate 657 S.E.2d 859 (2008).
continuing nuisance. Nuisanceclaimbarredbystatuteof
—
Trial court did not err by denying a repose. Purchaser's nuisance claims
2012 Supp.
41-1-1 GENERAL PROVISIONS 41-1-1
against a county, the county health de- An isolated incident involving a city in-
partment, and builders were barred by spector's giving the taxi a passing grade
the statute of repose, O.C.G.A. § 9-3-51, despite the taxi's extremely worn tires
because the purchasercould notmaintain was insufficient to give rise to a nuisance
anuisance action underthefacts asserted claim against the city. Ga. DOT v. Heller,
in the purchaser's complaint; a plaintiff 285 Ga. 2—62, 674 S.E.2d 914 (2009).
cannot maintain a nuisance claim that is Mills. Appeals court affirmed sum-
based upon damage to a house resulting mary judgment for a chip mill; the mill
from a defect constructed into the house was operatedlawfullyin acountylocation
that was concealed from the plaintiff by thatthe mill and county specificallynego-
the builder and/or the seller because, in- tiated and rezoned for its operation, and
stead, the applicable causes ofaction are the lawful operation was not conditioned
fraud against the seller and/or negligent on hours ofoperation, so the mill's opera-
construction against the builder. Wilhelm tion was not a nuisance. If the act is
v. Houston County, 310 Ga. App. 506, 713 lawfulinitself,itbecomes anuisanceonly
S.E.2d 660 (2011), cert, denied, 2012 Ga. when conducted in an illegal manner to
LEXIS 219 (Ga. 2012). the hurt, inconvenience, or damage ofan-
Permanent obstruction of city other. Effingham County Bd. of Comm'rs
streets. v. Shuler Bros., 265 Ga. App. 754, 595
In view of evidence that a property S.E.2d 526 (2004). —
owner's private road impeded the neces- Detention pond. Judgmententered
sarypassage ofa city's emergencyperson- for plaintiffs on their nuisance claim was
nel so as to significantly endanger the proper; although the developer's main-
health and safety ofthose persons resid- taining a detention pond was itselflegal,
ing at apartment complexes adjacent to it became a nuisance when conducted in
the road, the owner was improperly an illegal manner to the damage ofplain-
granted summary judgment in the city's tiffs'land. The fact that defendant did not
suit seeking abatement of a public nui- own the pond that created the nuisance
sance under O.C.G.A. § 41-1-2. City of did not shield defendant from liability, as
College Park v. 2600 Camp Creek, LLC, the jury could have found from defen-
293 Ga. App. 2—07, 666 S.E.2d 607 (2008). dant's ownership interest in the entity
Taxi cabs. In a wrongful death and that maintained the detention pond that
nuisance suit wherein the victim was it had sufficient control over the decision
killed while traveling in a taxi cab on a not to modify the pond so as to hold it
state highway, and the taxi cab had liableforthedamagescausedbythepond.
passed a mandatory city inspection the SumitomoCorp.v. Deal, 256Ga.App. 703,
day prior, the trial court properly granted 569 S.E.2d 608 (2002). —
summary judgment to the city on the Excess water runoff. In two cases
nuisanceclaim; asamatteroflaw,thecity involving a dispute for nuisance and tres-
had no notice of a dangerous condition pass arising out ofexcessive water runoff
within the meaning of a nuisance via its whichflowed onto a landowner's land, the
inspection as, even though there was evi- trial court's grant of summary judgment
dence in the record that inspector did not to a construction contractorwas reversed,
measure tire tread depth, there was no while the denial ofsummaryjudgment to
evidence that taxicabs with insufficient a developer was affirmed, as: (1) the tes-
tread on their tires routinely passed city timony as to the presence of the excess
inspections and thereafter were involved runoffand its cause, presented questions
in collisions that caused injury. Heller v. of fact for a jury; (2) merely because the
City of Atlanta, 290 Ga. App. 345, 659 county approved the development activi-
S.E.2d 617 (2008), aff'd, Ga. DOT v. ties did not mean that either the contrac-
Heller, 285 Ga. 262, 674 S.E.2d 914 tor or the developer or both could not be
(2009). held liable for a nuisance; and (3) the
Decedent was killed when the taxi in landowner's action against the alleged
whichthe decedentwasridingspunoutof creators of the water-runoff was autho-
control on a rain-slickroad andhit a tree. rized, regardless ofthe landowner having
2012 Supp.
41-1-1 NUISANCES 41-1-2
sold the property. Green v. Eastland drain—age pipe that caused flood dam-
Homes, Inc., 284 Ga.App. 643, 644 S.E.2d age. Appellate courterredbyreversing
479 (2007), cert, denied, 2007 Ga. LEXIS summary judgment to a railroad and a
629 (Ga. 2007). cityinthehomeowners'nuisanceandneg-
Diversion ofsurface water. ligence suit as the homeowners' perma-
Landowners'ofalakefrontpropertycre- nent nuisance claim was barred by the
ated a nuisance when they went onto a four year statute oflimitations period set
corporation's dam and plugged the weak- forthin O.C.G.A. § 9-3-30; and thehome-
eneddamtopreventalakefromdraining. ownersfailedtoshowtriableissuesoffact
Bishop Eddie Long Ministries, Inc. v. on their continuing nuisance claim that
Dillard, 272 Ga.App. 894, 613 S.E.2d 673 the railroad improperly maintained the
(2005). culvert and drainage pipe at issue orthat
Although the government required the the city had any duty to maintain the
owners ofaweakeneddamtotakecertain culvert and pipe since the homeowners
safetyprecautionstomaintainthelevelof failed to show thatthe cityhad taken any
water in a lake at a low level, the owners' control overthe propertyinquestion. City
refusal to repair the dam was not ajusti- of Atlanta v. Kleber, 285 Ga. 413, 677
fication for creating a nuisance. Bishop S.E.2d 134 (2009).
Eddie LongMinistries, Inc. v. Dillard, 272 Electromagnetic radiation.
Ga. App. 894, 613 S.E.2d 673 (2005). Churchwasnotliablefornuisancetoan
Jury properly awarded damages injured party who was criminally at-
against a corporation and in favor ofthe tacked adjacent to its property by a
lakefront landowners because the corpo- third-party as a one-time occurrence did
rationcreatedanuisancebyattemptingto not amount to a nuisance and was an
breachthedam anddrainthelake, rather isolated occurrence or act, despite the in-
than repairing and maintaining a dam so jured party's accusations that her assail-
it could impound water. Bishop Eddie ant might have concealed himself in the
Long Ministries, Inc. v. Dillard, 272 Ga. bushes near the abandoned church build-
App. 894, 613 S.E.2d 673 (2005). ing before attacking her. Barnes v. St.
Railroad and city alleged to have Stephen'sMissionaryBaptistChurch, 260
failed to maintain a culvert and Ga. App. 765, 580 S.E.2d 587 (2003).
RESEARCH REFERENCES
—
ALR. Toweror antenna as constitut- Hog breeding, confining, or processing
ing nuisance, 88ALR5th 641. facility as constituting nuisance, 93
Keeping of domestic animal as consti- ALR5th 621.
tuting public or private nuisance, 90 Remedies for sewage treatment plant
ALR5th 619. alleged or deemed to be nuisance, 101
Sewage treatment plant as constituting ALR5th 287.
nuisance, 92ALR5th 517. Municipalliabilityfordamageresulting
Nudity as constituting nuisance, 92 from obstruction or clogging of drain or
ALR5th 593. sewer, 54ALR6th 201.
41-1-2. Classes of nuisances; public and private nuisances de-
fined.
—
Law reviews. For annual survey of Rev. 289(2005); and58MercerL. Rev. 267
local government law, see 57 Mercer L. (2006).
JUDICIAL DECISIONS
Analysis
General Consideration
2012 Supp.
41-1-2 GENERAL PROVISIONS 41-1-3
Public Nuisance
General Consideration brought by the property owners against a
Cited in Thompson v. City of c7i4t7y.,D6a2v1isS.vE..C2idty49of5F(o2r0s0y5t)h., 275 Ga.App.
Fitzgerald, 248 Ga. App. 725, 548 S.E.2d —
Disposal of chemicals. The plain-
368 (2001).
tiff's disposal ofits chemicals at a speci-
Public Nuisance fied site did not amount to creation of a
All members of public not injured. public nuisance since (1) any contamina-
— tionofthe propertycausedbytheplaintiff
Trial court correctly entered summary did not affect a common right ofall mem-
judgment against the mothers on their
bers of the public, such as the right to
public nuisance count because the evi-
tdheencpeubdliidc wnohtoschaomwe itnhtaotcaolnltamcetmwbietrhsthoef cslheoawnnaitrhaotrctlheeanriwgahttesr,ofamnodr(e2)tihtawnaasfneowt
individuals were affected by the contami-
rtpiiuvvbeellriycweenrruaeisseiadn.njcuDeruecrdaiuansnged,tohtfehaudcset,ciaotndheewsmaopstriheoefrfre'tcso- ncraettieonS.alBersig&gsSe&rvsS.t,ra2t9toF.nSCuoprpp..2vd. C1o3n7-2
the deaths, no other person had ever (M.D. Ga. 1998).
drowned when entering the river via the Defect—ive condition of private
boat ramp, whether duringpowergenera- street. In view of evidence that a
tion or otherwise, and the other six boys property owner's private road impeded
who accompanied the decedents into the the necessary passage of a city's emer-
water on the ramp that day were unin- gency personnel so as to significantly en-
jured. White v. Ga. Power Co., 265 Ga. danger the health and safety of those
App. 664, 595 S.E.2d 353 (2004). persons residing at apartment complexes
Because there was no evidence that a adjacent to the road, the owner was im-
sewerlinebackupinjuredmorethanafew properly granted summary judgment in
individuals who came into contactwith it, the city's suit seeking abatement of a
it did not constitute a public nuisance, public nuisance under O.C.G.A. § 41-1-2.
pursuant to O.C.G.A. § 41-1-2, and the City ofCollege Parkv. 2600 Camp Creek,
four-year limitations period of O.C.G.A. LLC, 293 Ga. App. 207, 666 S.E.2d 607
§ 9-3-30 applied to the nuisance claim (2008).
RESEARCH REFERENCES
—
ALR. Tower or antenna as constitut- Nudity as constituting nuisance, 92
ing nuisance, 88ALR5th 641. ALR5th 593.
Keeping of domestic animal as consti- Remedies for sewage treatment plant
tuting public or private nuisance, 90 alleged or deemed to be nuisance, 101
ALR5th 619. ALR5th 287.
Sewage treatment plant as constituting
nuisance, 92 ALR5th 517.
41-1-3. Right of action for public nuisance generally.
JUDICIAL DECISIONS
—
Pleadings in civil action. Even inform defendant that they were relying
though it appeared that a homeowner's on anuisance theoryuntil theymoved for
operation of an elevator in violation of a directed verdict at the close ofthe evi-
departmental rules and regulations gave dence, the court did not err in denying
rise to a public nuisance under their motion for directed verdict on a
§ 8-2-107(a), because plaintiffs did not ground not timely asserted. Childers v.
2012 Supp.
41-1-3 NUISANCES 41-1-4
Monson, 241 Ga. App. 70, 524 S.E.2d 326
(1999).
RESEARCH REFERENCES
—
ALR. Remedies for sewage treat-
ment plant alleged or deemed to be nui-
sance, 101 ALR5th 287.
41-1-4. Right of action for private nuisance generally.
JUDICIAL DECISIONS
—
Non-owner lacked standing. A compensatory damages in the amount of
party could not prevail on its claim for $300,000 and that amount was not exces-
continuing private nuisance since it sold sive, as a matter of law, as there was
the property at issue and did not own the evidence thatthe propertyowner suffered
propertyduringanypart ofthe fouryears special damages in the amount of
precedingthefilingofthe action. Briggs & $203,376, including loss ofpersonal prop-
Stratton Corp. v. Concrete Sales & Servs., erty, diminution in the value ofthe prop-
29 F. Supp. 2d 1372 (M.D. Ga. 1998). erty, and rental expenses incurred when
Recovery for both personal and the property owner was forced to move
property damage, etc. from the home. There was also sufficient
In accord with City ofAtlanta v. Mur- evidence to support an award ofdamages
phy. See Arvida/JMB Partners v. for personal injuries and damages for an-
Hadaway, 227 Ga. App. 335, 489 S.E.2d noyance and discomfort. CityofAtlantav.
125 (1997). Hofrichter, 291 Ga. App. 883, 663 S.E.2d
Where the owners'evidence ofrepeated 379 (2008). —
floodingestablishedanabatablenuisance, Damages not excessive. Because
an award of both personal and property the jury heard evidence of defendant's
damages as well as attorney's fees was interference with plaintiff's right to enjoy
adequate; thetrialcourt'sjurychargewas possession ofhis property and his discom-
proper and the court did not abuse its fort and annoyance and the unobjected to
discretion in denying a directedverdict or jury form specifically authorized general
a judgment notwithstanding the verdict. damages, trial court did not abuse its
CityofGainesvillev. Waters, 258 Ga.App. discretion in rejecting the claim ofexces-
555, 574 S.E.2d 638 (2002). siveness.WoodmenoftheWorldv. Jordan,
Where the owners'evidence ofrepeated 231 Ga. App. 517, 499 S.E.2d 900 (1998).
floodingestablishedanabatablenuisance, Landowners'ofalakefrontpropertycre-
an award of both personal and property ated a nuisance when they went onto a
damages as well as attorney's fees were corporation's dam and plugged the weak-
adequate; thetrialcourt'sjurychargewas eneddamtopreventalakefromdraining.
proper and the court did not abuse its Bishop Eddie Long Ministries, Inc. v.
discretion in denyinga directedverdict or Dillard, 272 Ga.App. 894, 613 S.E.2d 673
a judgment notwithstanding the verdict. (2005).
CityofGainesvillev. Waters, 258 Ga.App. Inver—se condemnation for nui-
555, 574 S.E.2d 638 (2002). sance. Summaryjudgment was prop-
Inanuisancesuitbroughtbyaproperty erly granted to a county on an inverse
owner against the City ofAtlanta, involv- condemnation claimfiledbyfourproperty
ingthe city failingto properly maintain a owners as the countydidnoteithercreate
storm pipe that traversed and served the or maintain a construction project that
property owner's land which resulted in allegedly created a nuisance that harmed
extensive flooding of the land and the the owners since a city owned and main-
home, the trial court properly awarded tained the nuisance property, the county
2012 Supp.