Georgia Environmental Pollution Tort Claims

  

ENVIRONMENTAL CLAIMS IN GEORGIA

 

By Christopher R. Reeves, Esq.

The Finley Firm, P.C.

 

© 2008 Christopher R. Reeves

 

Environmental claims can come in many forms in Georgia for issues relating to the release of pollutants into the environment.  Below is a short list of potential claims likely to be seen in environmental litigation in Georgia.

 

Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), §§ 107(a) and 113(f), codified at 42 U.S.C. §§ 9607(a), 9613(f).

  • Section 113(f) provides “[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) [§ 107(a)] of this title.” 42 U.S.C. § 9613(f)(1). 
  • Section § 107(a)(2) provides “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.”   42 U.S.C. § 9607(a)(2).

 The Georgia Hazardous Site Response Act (HSRA) (O.C.G.A. § 12-8-96.1(e))

·         “persons who have contributed to a release of hazardous waste, a hazardous constituent, or a hazardous substance” within the meaning of HSRA as defined by O.C.G.A. § 12-8-92(9) are jointly and severally liable for cleanup costs associated with a corrective action.

 

 Contribution Pursuant to O.C.G.A. § 51-12-32

  • The right of contribution among joint tortfeasors is set forth in O.C.G.A. § 51-12-32, which provides in pertinent part:

Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.

·         Cross-claims for contribution are “separate and distinct from the claims asserted in the underlying litigation, and . . . are not extinguished by release, dismissal, or judgment in the underlying litigation, and are not barred by failure to assert them in the underlying litigation.”  Scott v. Rakestraw, 252 Ga. App. 408, 409, 556 S.E.2d 493 (2001).  O.C.G.A. §  9-11-14(a),  provides as follow:

At any time after the commencement of the action, a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part the plaintiff’s claim against him. 

 

Common Law Indemnity

Under Georgia law, “[a] person who is compelled to pay damages because of liability imputed to them as a result of a tort committed by another may maintain an action for indemnity against the person whose wrong has thus been imputed to him.”  Carolina Cas. Ins. Co. v. R.L. Brown & Assocs., 2006 U.S. Dist. LEXIS 89412, 45-46 (D. Ga. 2006) citing, Auto Owners Ins. Co. v. Anderson, 252 Ga. App. 361, 363, 556 S.E.2d 465 (2001).  In order to allow a plaintiff to assert a claim for common law indemnity, Georgia courts require that a wrong committed by the defendant is imputed on the plaintiff.  See Nguyen v. Lumbermens Mut. Cas. Co., 261 Ga. App. 553, 557, 583 S.E.2d 220 (2003) (affirming directed verdict in favor of defendant on common law indemnity claim where no wrong was imputed to plaintiffs and plaintiffs’ duty to pay stemmed from the surety bond issued in favor of the defendant); see also North Georgia Elec. Membership Corp. v. Thomason & Holsomback Constr. Co., Inc., 157 Ga. App. 719, 720, 278 S.E.2d 433 (1981) (affirming trial court’s dismissal of common law indemnity claim where plaintiff failed to show a wrong was imputed to it).

 

Continuing Trespass

  • Generally, a property owner may bring an action for nuisance and trespass against one who contaminates his property with a foreign substance. 

 

Continuing Nuisance:   

·               A nuisance is defined as “performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience, or injury.  Mayor & C. of Savannah v. Palmerio, 242 Ga. 419, 426 (1978).  O.C.G.A. § 41-1-1 defines a nuisance as anything that causes hurt, inconvenience or damage, even if it is lawful.  Though it can be temporary, nuisance cannot be a single act.  Columbia County v. Doolittle, 270 Ga. 490, 493 (Ga. 1999).  A Plaintiff can recover for damage to it personally, as well as damage to its property.  Georgia law allows recovery of damages for discomfort and annoyance to the owner of property as part of the actual damage to the property itself.  See Segars  v. Cleland 255 Ga. App. 293, 564 S.E.2d 874 (2002); City of Atlanta v. Murphy 194 Ga. App. 652, 391 S.E.2d 474 (1990). 

 

  • In order to be liable for a nuisance, a defendant must either be the “cause” or a “concurrent cause” of the creation, continuance or maintenance of the nuisance. Sumitomo Corporation of  America v. Deal 256 Ga. App. 703, 569 S.E.2d 608 (2002).  A plaintiff must present evidence a defendant caused or contributed to cause the damages claimed, or its case may be dismissed if evidence demonstrates other sources could have caused or contributed to such injury.  Bennett Street Properties v. CSX Transportation Inc. 248, 686, 548 S.E.2d 619 (2001.  Plaintiff has pled numerous events and the condition exists even today, such that he has lost profits and enjoyment of his property.

 

Negligence: 

·               Negligence is generally defined as “the failure to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.” Ford Motor Co. v. Carter, 239 Ga. 657, 662 (Ga. 1977)  citing 65 CJS 433, Negligence, § 1 (2) (1966).  Plaintiff will attempt to use his negligence per se argument to avoid having to get testimony from industry experts on the standard accepted in the industry.

 

Negligence Per Se: 

·         Proof of duty can also be established through negligence per se.  To establish negligence per se, plaintiff must present evidence that:

defendants violated a specific code provision, that the provision was mandatory and had the force of law, that she was in the class the provision was intended to protect, that she suffered the types of harm that the provisions were intended to guard against, and that the alleged negligence per se proximately caused her injuries.

Norman v. Jones Lang LaSalle Americas, Inc., 277 Ga. App. 621, 628 (2006).   Under negligence per se, no other evidence regarding the duty of care is necessary.  See Mitchell v. Austin, 261 Ga. App. 585, 583 S.E.2d 249 (2003).  However, negligence per se does not mean liability per se, the Plaintiff must still establish causation or damages.  Norman, supra  at 627.  This is probably Plaintiff’s strongest claim.

 

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s




%d bloggers like this: