Atlanta Injury Law Blog

It has been a very rainy July in Georgia. All over the state we have seen news coverage of flooding in places that never flooded before. Countless Georgians have seen enormous flood damage to their homes and businesses, and living outside what was normally considered a flood zone, they probably did not have flood insurance.

Why? Look at what has been happening upstream. Unfortunately, too many developers and the local governments which are supposed to regulate them have not learned how to develop land without damaging downhill/downstream neighbors.

For more than a hundred years in Georgia, folks damaged by such a "nuisance" have had the right to recover not just "special" (out of pocket) damages, but also damages for the "loss of use and enjoyment" of their property. The measure of such damages is the enlightened conscience of a fair and impartial jury. What's the value of being forced out of your home, as your home and all your worldly possessions drowned in nasty flood water?

The common excuse is "act of God", e.g., 'these hurricanes are doing it'. Sometimes that is true. But rain -- sometimes very heavy rain -- is foreseeable. When there is flooding where no flooding has been before, and uphill/upstream woods & pastures have been converted to rooftops, paving and lawns, there is no doubt what has caused the flooding. An expert + aerial photos proves the cause, and the developer has no defense.

Sadly, despite the fact local governments are supposed to regulate development and protect their own existing taxpayers who already live there, many local governments do not protect their citizens against this abuse. Too often, local governments are under the control of the development community. EPD can't do the job. It has been starved of funds and restricted for decades, and the DNR Board is largely controlled by the development community.

In many such instances, an expert aided by aerial photos can prove the case against an upstream developer who creates a "nuisance" that needlessly exposes downstream neighbors to flood risks. If flooded neighborhoods band together to seek recovery, they can prevail.

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

In appropriate cases, the government can also be held liable for damage to homes & property caused by upstream development.

In City of Columbus v. Myszka, 272 S.E.2d 302 (Ga. 1980) the Georgia Supreme Court held that the city, which chose to act by approving uphill development projects giving rise to a nuisance resulting from increased rain water runoff, was liable for damages and the landowner could recover any special damages in a continuing, abatable nuisance case.

In Columbus, Ga. v. Smith, 316 S.E.2d 761 (Ga. App.1984) the court held that the city, which approved intense upstream development projects that gave rise to a nuisance resulting from increased rainwater runoff, could be held liable for the property damage caused by such flooding.

Also, City of Lawrenceville v. Heard, 391 S.E.2d 441(Ga. App.1990) held that a city's failure to maintain drainage structures, and its approval of upstream development which results in a nuisance arising from increased surface water runoff can give rise to municipal liability.

Lastly, in Sumitomo Corp. of America v. Deal, 569 S.E.2d 608 (Ga. App.2002) the court held that a detention pond constructed by a developer was a nuisance, even though the construction of the pond was arguably done in a lawful manner, where the pond increased surface water flow to downstream landowners' property in a way that caused harm and inconvenience. The court further determined that the $175,738.98 compensatory damages and $250,000 punitive damages awards were not excessive.

As the Sumitomo case above indicates, a developer may be held liable even when they follow regulations & obtain governmental approval for their project. In Weldin Farms, Inc. v. Glassman, 414 A.2d 500 (Del. 1980) the owners of downstream property brought an action against a residential developer of upstream property. The Delaware Supreme Court upheld a judgment enjoining the developer from draining surface waters from its development into a stream in any way which would increase the volume of its natural flow above what it had been before development of the upstream property. In addition, insofar as county regulations (under which the developer was required to obtain the county's approval of drainage plans for the proposed development) conflicted with existing common law, such regulations were ineffective. The fact that the county approved the developer's drainage plan did not preclude the issuance of injunctive relief against the carrying out of such a plan.

The West Coast, infamous for its destructive landslides, offers similar recourse for homeowners. Martin v. County of Los Angeles, No. B142528, 2002 WL 31117056 (Cal. App. 2 Dist. Sept. 25, 2002) (expert testimony by civil engineer and engineering geologist supported conclusions that runoff from upstream residential developments caused erosion in ravine and landslides and that county and its flood control district were liable for destruction of homes on theories of nuisance, inverse condemnation, and creation of a dangerous condition).

Also, Ektelon v. City of San Diego, 200 Cal. App. 3d 804, 246 Cal. Rptr. 483
(Cal. App. 4 Dist. 1988) (upstream landowner had no absolute right to protect his land from floodwaters by constructing structures which increased downstream flow of water into its natural watercourse, but rather, upstream landowner's actions were governed by ordinary principles of negligence).

And our neighbors along the Gulf Coast also agree that a governing body can be held liable for its negligent approval of developments that place too great a strain on a drainage system and cause flooding in an existing development. Eschete v. City of New Orleans, 245 So.2d 383 (1971) (holding that city, through its agents and employees, had known for many years of dangerous drainage situation in area where plaintiffs' home was built, and that city had deliberately, and therefore maliciously, authorized new subdivisions causing flooding during any ordinary heavy rainfall); Pennebaker v. Parish of Jefferson, 383 So.2d 484 (La. App. 4th Cir.1980) (extensive development and overpass construction approved in an area already plagued by severe flooding rendered parish liable for its failure to implement adequate drainage).

My neighbors in the Horseshoe creek subdivision would like to file a class action agaist the builder that we feel caused our homes to flood down hill. Can we win such a case and will the lawyer take his pay once the case is settled?

Each case is different and is dependent up on its unique facts. It's difficult to even venture a guess without a thorough knowledge of the facts of the case, the injuries, and the parties involved. Consult a licensed attorney in your area to get specific advice for your situation.

By way of example, compare the following two cases:

Texas Dept. of Transp. v. Barrier, 40 S.W.3d 153 (Tex. App. 2001) (Property owners brought class action against state agencies and private developers based on allegations that manner in which beltway and subdivisions were constructed and developed increased flooding that occurred following heavy rainfall; class certification not warranted).

Boudreaux v. State, Dept. of Transp. and Development, 690 So.2d 114 (La. App. 1997) (Landowners brought action against Department of Transportation and Development (DOTD), alleging that its negligent design and construction of bridge resulted in flooding of plaintiffs' properties; evidence supported class certification).

Time, however, is of the essence. Georgia's legislature is considering major changes to the state's class action & contingency fee laws. See the article at the link following this quote: "In Georgia, lawmakers are currently considering a separate bill on class action reform, and reformers are putting leadership on notice that we intend to come back next year with collateral source offset and contingency fee reform." Full discussion of this insidious wave of legislation available at http://www.legalreforminthenews.com/Op-Ed/Op_Ed-Enacting_Reform_GA.html

But see, Amalgamated Transit Union Local 1324 v. Roberts, 434 S.E.2d 450 (Ga. 1993) (statute authorizing admission in evidence of collateral sources of recovery available to plaintiff seeking special damages for tortious injury is unconstitutional).

MY HOME OF 17 YEARS WAS RECENTLY FLOODED BY HURRICANE DENNIS. PRIOR TO THE HEAVY RAINS FORM CINDY AND DENNIS DEVELOPMENTS OF TWO PROPERTIES HAD STARTED UP STREAM FROM ME. OUR HOMES WERE BUILT IN 1985. THE DRAINAGE FOR OUR AREA WAS OKAY FOR THE 3 DIVISIONS OF JOHNSONS CROSSING, PHASE 1, PHASE 2 AND PHASE 3. WHEN LAND DEVELOPERS STARTED CLEARING OFF LAND ABOVE WHERE WE LIVE ON BOTH SIDES IT BEGAN TO CAUSE STREET FLOODING AND A DIFFERENCE WAS NOTICED BY THESE NEW CLEANING OFF OF PROPERTIES. WEW SIT IN THE MIDDLE OF TWO PROPERTIES THEY ARE BUILDING UPSTREAM FROM US. WE ARE GETTING WATER FROM BOTH DIRECTIONS AND IT IS ACCUMLATING RIGHT HERE WHERE I LIVE ON THE CORNER OF THE DOWNSTREAM OF THESE TWO NEW DEVEOPMENTS. I AM GETTING IT FORM BOTH DIRECTIONS NOW. I aAD NEVER EXPERIENCED FLOODING OF MY HOME FOR ALL THESE 17 YEARS TILL JULY 11TH WHEN HURRICANE DENNIS SENT US EXCESSIVE RAIN.
IF THE LAND HAD BEEN AS IT WAS BEFORE THEY GRADED IT WE WOUDL NOT HAVE BEEN FLOODED HERE. I AM TOTALLY AMAZED THE COUNTY WOULD ALLOW THIS TO HAPPEN TO US HERE. THEY COUDL CARE LESS ABOUT OUR NEIGBORHOOD DOWNSTREAM FORM THESE TWO NEW DEVELOPMENTS THAT CUASED OUR HOME TO FLOOD. WE TOOK ON 14 INCHES OF WATER INSIDE THE WHOLE DOWNSTAIRS OF OUR HOME THIS SUMMER AND WE ARE STILL TRYING TO REPAIR AND RECIVER FORM ALL THIS DAMGE WE INCURRED. WE LOST A LOT OF THINGS DOWNSTAIRS AND HAD NO CLUE THAT THIS SORT OF THING COULD EVER HAPPEN HERE.
DO I HAVE A CASE AGAINST THE COUNTY. I HAVE MAPS AND PICS AND NAMES OF PEOPLE WITHT HE COUNHTY I HAVE SPOKEN WITH ABOUT THIS DEVELOPMENT THAT CAUSED US ALL THIS HARM. PLEASE ADVISE. THANKS ! THIS IS UNREAL WHAT HAPPENED HERE.