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By: Coleen D. Hosack
Can you maintain suit against the county that builds and maintains your roads if your car hits a pothole and is damaged as a result? Probably not — unless your car hits that pothole more than once and is damaged both times. Theron and Dana Davis brought a nuisance claim against Effingham County after Mr. Davis’s car hit and struck a pothole on a county maintained road, resulting in damages to his person and his vehicle. Even though there had been recent previous reports to the County of potholes along Chimney Road, a county maintained road, the Georgia Court of Appeals held the County could not be liable in nuisance because the basis for the nuisance claim was the ‘single isolated occurrence’ of the car hitting the pothole one time. Davis v. Effingham County Board of Commissioners
The Court explained that the idea of a nuisance is that it is continuing or regularly repeated. Unless that isolated occurrence is regularly repeated, it is not a nuisance if it happens just one time. The focus is on the occurrence or incident that caused the injury, not the existence or duration of the pothole itself, even if the county has actual or constructive knowledge of it. The idea of holding a county liable in nuisance for damages to property means that the county created, maintained, or worsened the nuisance. In the Effingham County case, the factual basis formulating the Court’s dismissing the County was the one-time occurrence coupled with the fact that the County did not create the pothole in the first place, the rain did.
The opinion also contains a good analysis of official immunity as it relates to the claim against the Effingham County Sheriff in his individual capacity. The Sheriff prevailed on summary judgment as well because the written policy dealing with how to investigate and deal with “roadway defects” required personal deliberation and judgment, as opposed to a ministerial act.