An issue that will always stay relevant in construction disputes is the applicable statute of limitations. The accrual date the statute of limitations begins to run can make or break whether a cause of action is timely.
In Columbus v. Cielinkski, the Court of Appeals of Georgia addressed the applicable accrual date for triggering of the period of limitations for a nuisance action brought by a resident against the city regarding an allegedly inadequate drainage system and failure to maintain the drainage system, resulting in repeated flooding of her land and home. The trial court granted the city’s motion for summary judgment with respect to punitive damages but denied it without explanation as to all other claims. The city contended that the trial court erred in denying its motion for summary judgment because the resident’s nuisance claim was barred by the applicable four-year statute of limitations. The city took the position that the resident’s claims were based on the installation of the pipes and inlets near her home in 1991 and therefore that was when the statute of limitations began to run on her nuisance claim.
The court cited to the factually similar case of City of Atlanta v. Kleber, in which the Supreme Court of Georgia held that “the classification of an alleged nuisance as continuing in nature directly controls the manner in which the statute of limitations will be applied to the underlying claim.” 285 Ga. 413, 416(1), 677 S.E.2d 134 (2009). The court held that a permanent or continuing nuisance accrues immediately upon the creation of the nuisance and against which the statute of limitations begins to run. To the contrary, a nuisance which is not permanent but is one which can be fixed by the person maintaining it, is a fresh nuisance each time the nuisance is continued and the statute of limitations runs from the time of such continuance.
Based upon this ruling, the court here held that to the extent the nuisance claim was based on installation of the drainage pipe, the cause of action was permanent in nature and thus the limitations period ran from the installation of the pipe. Additionally, the court held that to the extent the cause of action was based on the city’s allegedly negligence or improper maintenance of the drainage system, the claim was continuing in nature and thus the limitations period ran from the dates of maintenance. Thus, the trial court’s holding was affirmed in part, reversed in part, and remanded.
Therefore, it is critical when pleading or responding to a complaint to determine whether the claim arises out of initial installation or maintenance. This issue often controls whether a claim is or is not subject to applicable statutes of limitations.
Columbus v. Cielinkski, 734 S.E.2d 922 (Ga. Ct. App. 2012).