In City of Atlanta v. McCrary, 760 S.E.2d 696 (2014) Plaintiffs alleged, among other claims, that the City of Atlanta maintained a nuisance by failing to enforce its own high speed pursuit policy after a high speed chase resulted in a deadly collision. In reversing the trial court, the Court of Appeals seemed skeptical that nuisance theory even applied noting in its consideration that “even assuming, without deciding, that nuisance law could apply in this context” that the trial court had incorrectly denied the City’s motion for summary judgment as to Plaintiffs nuisance claims. Id. at 700.
Pursuant to Georgia statutes nuisance is defined as “anything that causes hurt, inconvenience, or damage to another and the fact that the act done may be otherwise lawful shall not keep it from being a nuisance.” Id., quoting OCGA § 41–1–1. In order for a municipality or similar governmental entity to be held liable for creating or maintaining a nuisance “the defect or degree of misfeasance must exceed mere negligence as distinguished from a single act.” Id. (Citation and punctuation omitted). In addition, “there must be the maintenance of a dangerous condition on a continuous or regular basis over a period of time in which no action or inadequate action is taken to correct the condition after knowledge thereof.” Id. (Citation and punctuation omitted).
The Court noted that “[v]ehicle collisions are not uncommon occurrences, and the operation of police engaged in pursuit of their duties inherently involves some danger; to constitute a nuisance, such acts must constitute the continuous or regularly repetitious acts or conditions which could work damage to anyone who came in proximity to police cars.” Id. at 702. (Emphasis in original; citation omitted).
The Court further held that:
“Evidence that other collisions have occurred involving city police cars is not evidence of improper training of police officers, and does not create an inference that officers are improperly trained. Even the continuity and repetition necessary for a finding of nuisance does not prove nuisance as a matter of law, for nuisance is not shown by the occurrence of any number of collisions. Nuisance can be shown only by acts of [the City], that is, evidence of their specific failure or specific negligence in training which resulted in the collisions.” Id. (Emphasis in original).
In McCrary the Court found that there was “no evidence that any failure to train officers in the pursuit policy, or any failure to enforce the pursuit policy, potentially endangered everyone who was near those pursuits or that the City thus had notice or constructive knowledge of such a connection between a dangerous condition and failure to train officers in the pursuit policy or failure to enforce the pursuit policy.” Id. at 701. The Court also found the evidence showed a decrease in the number of pursuits and pursuit related accidents during the time period prior to the collision at issue. The Court held that “given these circumstances, we cannot say that the City was chargeable with notice of a dangerous condition within the meaning of a “nuisance;” that is, the repeated or continuous condition of failure to enforce, supervise, and train related to pursuit policy that caused injury.” Id. at 700.
While this holding is relatively narrow, it shows the difficulty Plaintiffs face when attempting to bring a nuisance claim related to policy and/or procedure violations of a governmental entity as opposed to a more traditional nuisance claim related to real property and/or property rights.
Lara P. Percifield