Who’s a Nuisance?

Design professionals are not typically named as defendants on nuisance claims arising out of construction projects. However, plaintiffs are increasingly attempting to bring nuisance claims against design professionals on the basis that they are responsible for the creation, continuance, or maintenance of nuisances originating from their designs. The Court of Appeals of Georgia has addressed such claims and has determined that design professionals lack the requisite control for nuisance liability under Georgia law.

In Georgia, a nuisance is anything that causes hurt, inconvenience, or damage to another or interferes with another’s right of enjoyment in using their property. [See, e.g., O.C.G.A. § 41-1-1; Board v. Hillman, 335 Ga. App. 18, 21-22, 780 S.E.2d 725, 729 (2015)]. Like all tort claims, causation is an essential element to recovering on a nuisance claim. [See Lore v. Suwanee Creek Homeowners Ass’n, Inc., 305 Ga. App. 165, 172 (2010)]. As the Court of Appeals of Georgia has put it, “The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance.” [See Fielder v. Rice Constr. Co., 239 Ga. App. 362, 366, 522 S.E.2d 13, 16 (1999)]. And, to cause a nuisance, one must have control over the cause of the harm. Thus, “the essential element of nuisance is control over the cause of the harm.” (See Fielder).

In the construction context, a project is controlled by the owner of the property, the general contractor that is building the project, and perhaps the subcontractors and tradesmen that are constructing the project. Design professionals, on the other hand, have no control over the project or the construction means and methods that are employed by the general contractor and its subcontractors to construct the project. Rather, design professionals merely create the plans for constructing a project and then provide them to the owner and general contractor for construction.

The essential issue for a nuisance claim against a design professional is whether the design professional has the requisite control over the creation, continuance, or maintenance of a nuisance emanating from a construction project. Only one Georgia case has touched on this issue. In McLendon & Cox v. Roberts, the plaintiff brought nuisance claims against a number of parties, including a landscape architect, due to stormwater runoff flowing across his property. The landscape architect sought a dismissal of the action on the basis of the plaintiff’s failure to attach an expert affidavit to his complaint

as required by O.C.G.A. § 9-11-9.1. The landscape architect argued that the only viable claim that could be asserted by the plaintiff against it was a claim of professional negligence because it did not control the nuisance that was damaging the plaintiff’s property. In analyzing the issue, the court determined that the owner of the property and anyone else who controlled the property from which the nuisance emanates are generally the proper defendants on a claim of nuisance.

The court further reasoned that the landscape architect did not own or control the property from which the nuisance emanates and that it merely designed the landscaping for the property. Consequently, the court found that the plaintiff’s claim against the landscape architect necessarily sounded in professional negligence rather than nuisance and reversed the denial of the landscape architect’s motion to dismiss.

Under McLendon, any claim asserted against a design professional for damages caused by a nuisance emanating from a construction project must necessarily sound in professional negligence and be supported by an affidavit as required by O.C.G.A. § 9-11-9.1. A design professional’s mere design of a construction project does not afford the requisite control required to establish a claim of nuisance under Georgia law.

With the current trends in stormwater litigation, plaintiffs will no doubt continue to name design professionals in lawsuits alleging nuisance. In defending against such claims, the design professional should emphasize lack of control of the nuisance and that such claims necessarily sound in professional negligence under McLendon.