Day on Torts
Where a pipe could be altered but the expense to do so would be “considerable” and there were no indications that any alterations were intended, a nuisance claim based on the pipe was considered to be a permanent nuisance, meaning that the statute of limitations was three years “from the time of the creation of the nuisance.” In addition, where a trespass claim involved complicated questions regarding water runoff and flow patterns and plaintiffs did not have a competent expert witness to testify as to causation, summary judgment for the defendant was appropriate.
In Ray v. Neff, No. M2016-02217-COA-R3-CV (Tenn. Ct. App. July 20, 2018), plaintiffs filed a claim for nuisance and trespass related to their adjacent neighbors’ installation of a pipe on their property. Plaintiffs claimed that the pipe was first placed in 2008, and that after extensive flooding in 2010, “changes to the pipe…modified the course of a creek” and caused water to flow directly towards their home, causing property damage.
Plaintiffs filed their original complaint in 2010, which was nonsuited and then re-filed within the savings statute. In 2015, plaintiffs nonsuited their second complaint after settling with the company who did the paving and grading work for defendant homeowners in 2010. Plaintiffs filed the instant case in April 2015, and because they had already taken advantage of the savings statute, only claims that were still within the relevant statutes of limitations could be pursued.
In a three-part ruling over the course of many months, the trial court granted summary judgment to defendants. Summary judgment on the trespass claims was based on plaintiffs’ inability to prove causation as well as some statute of limitations issues, while summary judgment on the nuisance claim was based on the statute of limitations. The Court of Appeals affirmed summary judgment.
First, the Court analyzed the nuisance claim. A nuisance can be permanent, temporary or continuing, and the category a nuisance falls under affects the statute of limitations to be applied. If the “defendant is negligently operating its property so as to unnecessarily create the damage and it is within the defendant’s power to operate in a non-negligent manner, then the nuisance is temporary.” (internal citation and quotation omitted). On the other hand, if the “operation is done with due care considering the use thereof, and it is not contemplated that any change in operation will be made, the damage is permanent.” (internal citation and quotation omitted). Here, the trial court found the pipe to be an alleged permanent nuisance, and the Court of Appeals agreed. The Court noted that the pipe was repositioned in 2010 and “has been completely unchanged since that time;” that the pipe was originally approved by the city; and that substantial grading, dirt and rock work had been done for the pipe. The Court noted that while the pipe could be removed, doing so would take substantial work and money, and the defendants did not appear to have contemplated doing so. In addition, the Court pointed out that plaintiffs had offered no evidence, other than their pleadings, that the pipe was “unreasonable and unlawful.”
Because the nuisance was permanent, the statute of limitations “commence[d] to run from the time of the creation of the nuisance” and only ran for three years. Since the nuisance was created in 2010 and the present case was not filed until 2015, the nuisance claim was time-barred and summary judgment was affirmed.
Next, the Court looked at the trespass claims. The trial court had based its ruling on both the statute of limitations and the failure to prove causation, but the Court of Appeals ruled that the causation issue was determinative. Because trespass is subject to a three-year statute of limitations, plaintiffs agreed that any claim for trespass had to be one for temporary or continuing trespass to survive summary judgment. Accordingly, the only trespass claims that could have possibly moved forward would have had to occur within three years of the filing of the complaint, or since April 2, 2012.
In their statement of undisputed material facts, plaintiffs cited to an expert report, but that report was dated October 2011. The Court pointed out that this report could not possibly have taken into account the photographs of the flooding events that were within the statute of limitations, as those had not yet occurred, and that the report was “inapplicable because the opinions offered do not relate to the proper time period.” Plaintiffs also relied on a declaration from plaintiff husband, the homeowner, who described the changes to the water flow. The Court held, however, that this case involved complicated issues regarding “water flow patterns, the effects, if any, of the land modification on the water flow, and the effects, if any, of the pipe alone on the water flow.” The Court ruled that the “analysis required to separate the effects resulting solely from the pipe from the effects that also resulted from the work done by [the paving company] is therefore simply not within ordinary knowledge, common sense, and practical experience.” The Court ruled that expert testimony was required here, and that because plaintiffs’ only expert report was irrelevant to the time period at issue, plaintiff could not prove causation and summary judgment was affirmed.
This case contains a fairly thorough analysis of how to qualify nuisance claims as either temporary or permanent. It also serves as a reminder that a second voluntary dismissal can result in major statute of limitations problems if a plaintiff decides to re-file for a third time.