Although it’s sensible to believe a city may be held liable to failing to act when such failure results in the injury to one of its citizens, cities are often not as accountable for the injuries of citizens as many may think they are. Issues regarding municipal liability at the center of a recent decision from the Georgia Court of Appeals, City of Atlanta v. Demita, in which the court addressed a somewhat novel question regarding when a municipality may be held liable for maintaining a nuisance in the construction or upkeep of a municipal storm water drainage system.
The alleged nuisance at dispute in this litigation was located on a low-lying stretch of Oakridge Avenue in Atlanta, Georgia. In 2002, the plaintiff in this case purchased a newly constructed home located at this part of Oakridge Avenue. The street is owned and maintained by the city. The home was part of new fill-in construction in the area, and prior to this construction, water would run east to west across the street, which runs north to south. However, following construction, this home and the home across the street are at the thoroughfare’s low point, and water has pooled in the area during the duration of the plaintiff’s occupancy. There is no storm drain, sewer grate, manhole, retention pond, or catch basin on the street into which runoff water can drain. On days of heavy rainfall, water pools above the curb and overflows onto the plaintiff’s property, which has caused the property to sustain erosion, soil saturation, garage and crawlspace flooding, and other damage.