Recently, the Court of Appeals of the State of Georgia in the case of Tri-County Investment Group, Ltd. v. Southern States, Inc., case number A97A2178 (3-16-98) addressed and summarized the law in the State of Georgia pertaining to the statute of limitations concerning cases involving "continuing torts".
The Instant Case
The Tri-County case involved a suit alleging groundwater contamination. In 1989, contaminants were found in the City of Hampton's water supply. In response to requests from the Georgia Environmental Protection Division, Southern State, Inc. drilled monitoring wells and concluded that a plume of pollutants extended from a landfill located on Southern's property. Engineers employed by Southern issued a report in November 1993, stating that Southern's contamination had spread into the groundwater onto the property of Tri-County. Further, the engineers admitted that it was feasible that the contamination could be spreading in the groundwater. In May 1995, Tri-County sued Southern seeking damages for continuing trespass and continuing nuisance due to the contamination of the groundwater.
The Court of Appeals addressing this factual situation provided that ordinarily, claims for property damage are governed by a four year statute of limitations. However, the theory of continuing tort exists in this state. Under Georgia law, a cause of action for a tort that is continuing in nature (for example, the frequent runoff of contaminated water across land, or ... the adjoining property) accrues at the time of the continuance. See, Tucker v. Southern Wood Piedmont Company, 28 F.3d 1089 (11th Cir. 1994). Additionally, where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining the nuisance, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie.
Continuing Torts vs. Permanent Nuisances
In Tucker, the plaintiffs owned property near defendant's land in which defendant had for decades treated wood with creosote and other chemicals. The plaintiffs argued that hazardous waste was leaking on their property from the defendant's land. The 11th Circuit concluded that this was a continuing tort and not a permanent nuisance and therefore not barred by the four-year statute of limitations. In Hoffman v. Atlanta Gas Light Co., 206 Ga.App. 727 (1992) the Court of Appeals ruled that old leaks from a pipeline, which had been corrected, did not constitute the nuisance. Rather, the nuisance was the continuing exudation and leaching of chemicals into the ground from contaminants deposited long ago through the leaks.
A similar analysis was employed in Smith v. Branch, 226 Ga. 626 (1997), where plaintiff sued a dry cleaning business for contamination of property with the dry cleaning waste and chemicals. In Smith, the contamination caused by the defendant's business was continuing to migrate and did so within four years of the plaintiffs action for the continuing trespass and continuing nuisance.
Based on the foregoing cases, the Court of Appeals held that although the act originally causing the nuisance might have been committed beyond the applicable statute of limitations, Tri-County had submitted some evidence that the groundwater contamination is a continuing tort that has continued to inflict damages within the four years prior to filing this suit. Therefore, summary judgment was inappropriate in the Tri-County case on the basis that the suit was time barred.
Additionally, the Tri-County Court addressed issues pertaining to the applicable measure of damages in continuing tort cases. The Court provided that in cases of nuisances which cause permanent injury to land, the ordinary rule is that the measure of damages is the depreciation of the market value of the subject property. In regard to nuisances, which are non-permanent, abatable, or temporary in nature, the depreciation in the usable rental value ordinarily furnished the measure of damages.
Punitive damages may be awarded in suits in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression or that entire want to care which would raise the presumption of conscious indifference to consequences. Under O.C.G.A. 51-12-5.1(b), it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be certain circumstances of aggravation or of outrage.
In the Tri-County case, there was found to be insufficient evidence to support a finding that Southern willfully or with conscious indifference failed to abate the nuisance. Southern had drilled monitoring wells and tested property to establish the source of contamination. When Southern found a plume emanating from a landfill on the property it agreed to define the extent of the plume and clean up the contamination. There was no evidence that Tri-County demanded that Southern clean the contamination of the subject property or that Southern deliberately ignored any request to abate the nuisance.