In Wildcat Cliffs Builders, LLC v. Hagwood, a landowner’s property was damaged by erosion and run-off water when a developer working on an adjoining property improperly constructed two concrete retaining walls on the landowner’s property and also graded over part of the landowner’s property, which destroyed over forty of the landowner’s hardwood trees. The landowner sued for trespass and nuisance, and the jury found in the landowner’s favor, awarding him $90,000 in compensatory damages and $100,000 in punitive damages.

On appeal, the Georgia Court of Appeals affirmed the award of punitive damages. The Court of Appeals looked to O.C.G.A. § 51-12-5.1(b), which states that punitive damages are available in tort cases in which the defendant’s actions are proven by clear and convincing evidence to show, inter alia, “that entire want of care which would raise the presumption of conscious indifference to consequences.” The jury’s finding that the developer did not damage the landowner’s property with intent to cause damage was not at issue. Instead, the question was whether the developer’s actions after the damage showed a “conscious indifference to consequences.” The Georgia Supreme Court has specifically held that such a conscious indifference may exist where one party causes run-off water damage to another’s property and subsequently fails to repair or ameliorate the damage. Therefore, the Court of Appeals stated that even where a defendant does not act with conscious indifference in creating a problem that leads to damage, punitive damages may be justified if the defendant acts with conscious indifference in failing to remedy the damage.

There was evidence here that, after creating the erosion and run-off water problems, the developer was put on notice of the damage to the landowner’s property, yet made no effort to ameliorate the damage. Since the evidence showed that the developer had no interest in remedying or compensating the landowner for the damage, the Court of Appeals held that there was sufficient evidence to support a jury finding of conscious indifference to consequences. Thus, the court affirmed the award of punitive damages. Wildcat Cliffs Builders, LLC v. Hagwood, 663 S.E.2d 818 (Ga. App. 2008).