Day on Torts
Summary judgment for a nuisance claim was affirmed where the plaintiffs failed to provide any evidence beyond their own affirmations that a nuisance existed.
In Heatley v. Estate of Gaither, No. M2024-01097-COA-R3-CV (Tenn. Ct. App. May 29, 2025), the plaintiffs and the defendants lived on two plots of land that were joined as one property until around 1990. While the land was owned by one party, a septic tank was installed on the plaintiffs’ side that serviced the property the defendants eventually owned.
In 2013, the plaintiffs discovered the septic tank, and the defendants had the septic line “permanently severed and sealed under the supervision of the Tennessee Department of Environment and Conservation” in 2014. In early 2014, the plaintiffs filed their first lawsuit related to the septic tank, alleging claims for negligence and trespass. The defendants were granted summary judgment on the nuisance claims in that matter, and the remaining claim was eventually nonsuited in 2022.
In August 2022, the plaintiffs filed the complaint that gave rise to this appeal, this time alleging claims for negligence, nuisance, and trespass. The trial court granted summary judgment to the defendants, and the Court of Appeals affirmed.
The plaintiffs only appealed summary judgment as to their nuisance claim. Regarding this claim, the Court noted that the plaintiffs “must first establish that a nuisance exists on their property, and, if so, that [the defendant] did some act or engaged in some conduct to cause or maintain the nuisance.” Although the plaintiffs asserted that extreme levels of e-coli existed on their property because of the septic tank, they failed to submit any evidence to support that allegation. One affidavit submitted by the plaintiffs did not include the affiant’s qualifications, and the affiant never actually “opine[d] that unacceptable amounts of e-coli were found” on the plaintiff’s property. The second declaration submitted by the plaintiffs described the life cycle of e-coli, but it said nothing about testing or samples from the plaintiffs’ property. The defendants, meanwhile, submitted a declaration from a plumber with septic tank experience who was licensed by TDEC. He explained that he went to the property in 2019, saw no signs of septic leakage, and successfully “permanently dismantled” the remaining portions of the tank so that “there was no way the tank would hold liquid and there was no way for liquid to access the field lines…”
“[A]t the summary judgment state, the nonmoving party may not rest upon the mere allegations or denials of its pleadings…” (internal citation omitted). Because the plaintiffs failed to come forward with evidence to support their nuisance claim, and the defendant had successfully negated the existence of a nuisance on the property, summary judgment was affirmed.
This opinion was released two months after oral arguments in this matter.