TOYO TIRE NORTH AMERICA MANUFACTURING, INC. v. DAVIS Et Al. , 333 Ga. App. 211 ( 2015 )

WHOLE COURT
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July 16, 2015
In the Court of Appeals of Georgia
A15A0201. TOYO TIRE NORTH AMERICA
MANUFACTURING, INC. v. DAVIS et al.
MILLER, Judge.
Duron and Lynn Davis (“the Davises”) filed suit against Toyo Tire North
American Manufacturing, Inc. (“Toyo Tire”), asserting claims for trespass, continuing
trespass, and nuisance, arising out of Toyo Tire’s operation of a tire manufacturing
facility in close proximity to real property that the Davises own and where they
reside.1 Toyo Tire filed a motion for summary judgment, which the trial court denied.
The trial court certified its order for immediate review, and we granted Toyo Tire’s
1
The Davises stipulated that any claim based on an alleged diversion of the
natural flow of surface water on their property was barred by the statute of limitation,
and the trial court granted summary judgment for Toyo Tire on that issue.
application for interlocutory review. On appeal, Toyo Tire contends that it was
entitled to summary judgment. For the reasons that follow, we affirm.
Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law.
O appeal from the denial or grant of summary judgment, the appellate
court is to conduct a de novo review of the evidence to determine
whether there exists a genuine issue of material fact, and whether the
undisputed facts, viewed in the light most favorable to the nonmoving
party, warrant judgment as a matter of law.
(Punctuation and footnotes omitted.) Taylor v. Campbell, 320 Ga. App. 362 (739
SE2d 801) (2013).
So viewed, the evidence shows that the Davises own and reside on property
located at the intersection of U. S. Highway 411 and Shinall Road in Bartow County
(the “Property”). The Davises have lived on the Property since 1995. The Toyo Tire
manufacturing facility at issue is located on the other side of Highway 411 from the
Property, 1000 feet or less from the Davises’ house.
Construction on the facility began in 2004 and was completed in 2005. Toyo
Tire’s facility began operating in January 2006. The Davises subsequently hired
counsel, who sent a letter to Toyo Tire on the Davises’ behalf on October 25, 2007.
The Davises’ counsel enclosed a draft complaint asserting claims for trespass,
nuisance, and negligence but stated that the Davises wished to pursue an amicable
2
resolution of the matter and, as such, were requesting that Toyo Tire purchase their
home.
The Davises filed their complaint in the instant action on February 27, 2013.
The complaint alleges that, since Toyo Tire began operating the manufacturing
facility, the Davises have been subjected to: constant noise from, among other
sources, truck traffic in and out of the facility, backup alarms on vehicles at the
facility, and the facility itself; lights from the truck traffic, equipment and the facility
itself; black dust that invades the Property, believed to be carbon black; foul odors
from the facility; drastically increased traffic on Highway 411 and Shinall Road from
trucks entering and leaving the facility and employees going to and from work; and
the unsightliness of the facility.
The record reflects that Toyo Tire’s operations have expanded over time. Toyo
Tire’s president and plant manager testified that the Toyo Tire facility and operations
have grown in several phases. The initial phase, Phase I, was completed in October
2006, and at that time, the plant was producing approximately 3000 tires a day and
approximately 90,000 per month. In 2008, the facility reached a production level of
approximately 4500 tires a day and approximately 135,000 per month after Phase II,
an internal expansion involving the addition of equipment, was complete. By the time
3
a Phase III expansion was completed in the summer of 2011, the factory was
producing approximately 13,500 tires a day, 400,000 tires per month, and 4.7 million
tires per year. Between 2006 and 2011, the number of employees at the facility
increased from approximately 350 or 400 to 1000. At the time of the plant manager’s
deposition, March 10, 2014, Toyo Tire had initiated a Phase IV expansion that was
expected to bring production to between 6.7 to 7 million tires per year and the number
of employees at the factory to roughly 1450.
1. Toyo Tires contends that all of the Davises claims are barred by the four-year
statute of limitation OCGA § 9-3-30. We disagree.
The resolution of this issue is controlled by the Georgia Supreme Court’s
decision in Cox v. Cambridge Square Towne Houses, Inc., 239 Ga. 127 (236 SE2d
73) (1977). In Cox, a storm drain system was installed in an apartment complex
owned by the defendant. Id. at 127. More than four years later the plaintiff, a
neighboring property owner, filed a trespass action against the apartment complex
owner, alleging that the drain system had increased the flow of surface waters across
his land. Id. The trial court granted summary judgment for the defendant on the basis
that the action was barred by the four-year statute of limitation applicable to actions
4
for trespass upon or damage to realty. Id. Relying on the Restatement of Torts, our
Supreme Court reversed. Id. at 129.
The Supreme Court first quoted Section 930 of the Restatement, which
addresses damages for future invasions on land, as follows:
(1) Where, by the maintenance of a structure on his own land or by acts
and operations thereon, a person causes continuing or recurrent tortious
invasions of the land of another, the other is entitled to recover for
future [invasions] if, and only if, it appears that (a) the situation will
continue indefinitely and (b) it is incident to (i) an enterprise affected
with a public interest, the operation of which as presently operated will
not be enjoined, or (ii) other enterprises if the injured person so elects.
Id. at 128, citing Restatement of Torts § 930. It went on to discuss comment d to
Section 899.2 Id. Comment d begins by explaining that “where there is a series of
harms caused by the existence of a structure or by the operation of a business outside
the land, the time when the statute of limitations begins to run depends upon the rules
. . . stated in § 930.” Restatement of Torts § 899, cmt. d. Comment d first explains the
accrual rules that apply “[i]n cases where a public utility or governmental agency
2
That section sets forth the general principle that “[a] cause of action for a tort
may be barred through lapse of time because of the provisions of the statute of
limitations.” Restatement of Torts § 899.
5
erects a harmful structure . . . or conducts a harmful activity, . . . and the interference
with the plaintiff’s interests is not abatable by a proceeding in equity.” Restatement
of Torts § 899 cmt. d. The portion of comment d upon which the Supreme Court
relied in Cox, however, concerns “other cases when there is a series of continuing
harms.” The comment explains that in these other cases, “the plaintiff, under the
rule[] stated in . . . § 930 has an election to recover or is permitted to recover damages
only for harm to the use of the land up to the time of trial. In cases of this type, the
statute does not run from the time of the first harm except as to the harm then
caused.” Id.; Cox, supra, 239 Ga. at 128. The Supreme Court in Cox found that it
clearly appeared from the record that the situation giving rise to the alleged
interference would continue indefinitely such that the plaintiff could elect whether
to sue for damages incurred in the past four years or seek all damages, past and
prospective. Cox, supra, 239 Ga. at 129. It then construed the relevant portion of
comment d, set forth above, as providing that in either event, the statute of limitation
“does not preclude recovery for any damages save those which were suffered more
than 4 years prior to the filing of the suit.” Id.
The same Restatement rules the Supreme Court relied upon in Cox have been
carried forward in the Restatement (Second) of Torts, which the Supreme Court has
6
more recently used to guide its decisions on statute of limitation issues in nuisance
cases. See Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 333-337 (2), (3) (711
SE2d 641) (2011); City of Atlanta v. Kleber, 285 Ga. 413, 417 (1) (677 SE2d 134)
(2009).3
Here, the evidence establishes that the Toyo Tire facility is continuing to grow
and expand, and while Toyo Tire claims that certain invasions alleged by the Davises
cannot be proved or are not actionable, it does not generally dispute that the Davises’
allegations relate to invasions that are enduring in character and not readily alterable.
See Restatement (Second) of Torts § 930, cmt. b. (“When the private structure or
enterprise that is producing the invasions is substantial and relatively enduring in
character and not readily alterable so as to avoid future injury, its maintenance or
operation ordinarily indicates that the owner intends to continue indefinitely to cause
invasions upon the neighboring land.”). Applying Cox, we conclude that the
“permanence” of the invasions alleged here would entitle the Davises to elect to
recover all available past and prospective damages but that the Davises’ claims are
3
Section 930 has been reworded in the interest of clarity. See Restatement
(Second) of Torts § 930, reporter’s note.
7
not time-barred except as to damages for past invasions occurring more than four
years before they filed their complaint.
Contrary to Toyo Tire’s arguments, Oglethorpe Power, supra, and Kleber,
supra, do not require a different result. In each of those cases, the Supreme Court
applied the analytical framework the Restatement (Second) of Torts provides for
determining when a nuisance claim accrues against an entity providing an essential
public service, such as electricity or railroad transportation. For example, both cases
relied upon comment c to Section 930, which explains when a nuisance caused by
such an entity is considered non-abatable. See Oglethorpe Power, supra, 289 Ga. at
334 (2); Kleber, supra, 285 Ga. at 417 (1). That comment states:
Damage to neighboring landowners is frequently incident to the
construction and operation of establishments employed in necessary
public service, which nominally have the right of taking land by eminent
domain. A railway embankment with an inadequate culvert diverts water
upon nearby land; a municipal electric plant sends smoke and fumes into
homes and factories; a city sewage disposal system pollutes a stream to
the injury of bordering landowners. If the damage results from some
minor feature of construction or management, so that it could be averted
at slight expense, the normal remedy of successive actions for past
invasions or relief by injunction would alone be available, as is also true
if the harm results from an improper and unnecessary method of
operation. But if the invasions are caused by some substantial and
8
relatively enduring feature of the plan of construction or from an
essential method of operation, then it will usually not be abatable by
injunction and the desirability of granting the injured person complete
compensation for past and future invasions is apparent.
(Emphasis supplied.) Restatement (Second) of Torts § 930, cmt. c. In Oglethorpe
Power, supra, the Supreme Court also relied on the portion of comment d to Section
899, which states, among things:
In cases in which a public utility or governmental agency erects a
harmful structure such as a bridge or conducts a harmful activity such
as opening a sewer that pollutes a stream and the interference with the
plaintiff’s interests is not abatable by a proceeding in equity, the
statutory period normally begins when the structure is completed or the
activity is begun.
(Emphasis supplied.) Restatement (Second) of Torts § 899, cmt. d.; Oglethorpe
Power, supra, 289 Ga. at 333 (2). Cox, supra, by contrast, sets forth the statute of
limitation analysis we must apply when an alleged nuisance is created by a private
entity that is not engaged in providing a necessary public service. See Provident Mut.
Life Ins. Co. of Philadelphia v. City of Atlanta, 938 F. Supp. 829, 834 (N.D. Ga.
1995).
9
Thus, under Cox, the “permanence” of the alleged invasions entitled the
Davises to recover all available past and prospective damages, and that their claims
are not time-barred except as to damages for past invasions occurring more than four
years before they filed their complaint.4
2. Toyo Tires next contends the Davises failed to show that the alleged
nuisances and trespasses proximately caused their property to decrease in value. We
disagree.
Causation is an essential element of nuisance, trespass, and
negligence claims. To establish proximate cause, a plaintiff must show
a legally attributable causal connection between the defendant’s conduct
and the alleged injury. The plaintiff must introduce evidence which
affords a reasonable basis for the conclusion that it is more likely than
not that the conduct of the defendant was a cause in fact of the result.
(Footnote omitted.) Alexander v. Hulsey Environmental Svcs., Inc., 306 Ga. App. 459,
462 (3) (702 SE2d 435) (2010). “The existence of proximate cause is a question of
fact for the jury, except in palpable, clear, and indisputable cases.” (Punctuation and
4
Toyo Tire further argues for the first time on appeal that it may rely on
Oglethorpe Power, supra, and Kleber, supra, because it qualifies as an “enterprise
affected with a public interest” under Restatement (Second) of Torts § 930. We need
not consider arguments raised for the first time on appeal. See Pfeiffer v. Ga. Dept.
of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002).
10
footnote omitted.) Sprayberry Crossing Partnership v. Phenix Supply Co., 274 Ga.
App. 364, 365 (1) (617 SE2d 622) (2005).
Here, the Davises submitted the opinion testimony of a property appraiser
familiar with properties in Bartow County. The expert appraiser opined that the fair
market value of the Property would be $280,000 if not located directly across the
street from the Toyo Tire facility, and the property’s value depreciated between 40
and 50 percent because of its proximity to the Toyo Tire facility. The appraiser also
testified that, out of the total reduction in value, between 15 to 25 percent was
attributable to particulate emissions contributed in the reduction in value.
Toyo Tire does not challenge the appraiser’s qualifications, but rather argues
that the appraiser did not specifically testify that any diminution in value was caused
by the alleged nuisances and trespasses. Toyo Tire also argues that the appraiser
expert’s opinion was without foundation and, therefore, lacked probative value.
The appraiser testified, however, that he was charged with determining the
diminution in value given the communicated characteristics of the Toyo Tire facility’s
operations, including the round-the-clock shifts, heavy traffic, and the light and noise
from the facility. While the appraiser did not independently analyze the amount of
noise, light, or pollution affecting the Property, he could base his opinion on the
11
information that was communicated to him. See OCGA § 24-7-703 (“The facts or
data in the particular proceeding upon which an expert bases an opinion or inference
may be those perceived by or made known to the expert at or before the hearing.”);
see also Humphrey v. Morrow, 289 Ga. 864, 872 (II) (B) (1) (717 SE2d 168) (2011)
(an expert witness may rely on the statements of others in forming his or her expert
opinion).
Moreover, notwithstanding Toyo Tire’s challenges to the expert appraiser’s
basis for determining the diminution in value, this presents no basis for excluding the
expert’s opinion on summary judgment, because any deficiencies in the expert’s
opinion go to the weight and credibility of his testimony.
[Even] if the expert’s opinion was based upon inadequate knowledge,
this does not mandate the exclusion of the opinion but, rather, presents
a jury question as to the weight which should be assigned the opinion.
If it be developed that the opinion is based on inadequate knowledge,
this goes to the credibility of the witness rather than to the admissibility
of the evidence. The weight given to expert testimony in negligence
cases is for the trier of fact who can, but is not required to give it
controlling influence.
(Citations and punctuation omitted.) Layfield v. Dept. of Transp., 280 Ga. 848, 851
(1) (632 SE2d 135) (2006) (reversing this Court’s affirmance of summary judgment
12
to the movant because this Court incorrectly determined that the plaintiff’s expert’s
testimony lacked sufficient information to reach a probative opinion). Furthermore,
“[t]he appropriate standard for assessing the admissibility of the opinion of an expert
is not whether it is speculative or conjectural to some degree, but whether it is wholly
so.” Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857, 862 (2) (b) (686 SE2d 455)
(2009).
Given the expert witness’s testimony that he considered the characteristics of
Toyo Tire’s facility that give rise to the alleged nuisance and trespass claims, his
opinion on the diminution of the value of the Property was not wholly speculative.
Therefore, the Davises, as the nonmoving parties, presented sufficient evidence to
defeat Toyo Tire’s motion for summary judgment. See Layfield, supra, 280 Ga. at 850
(1) (in the summary judgment context, a nonmoving party is “not required to produce
evidence demanding judgment [in their favor], but only to present evidence which
raises a material issue of fact.”) (citation omitted).
3. Toyo Tire contends that it is entitled to summary judgment on the Davises’
claims to the extent they are premised on the Property’s exposure to carbon black
emanating from Toyo Tire’s facility because the Davises have no proof that black
dust on their Property came from Toyo Tire or is carbon black. We disagree.
13
It is undisputed that carbon black is a filler and reinforcement material used in
large quantities in the tire-manufacturing process at the Toyo Tire facility.5 For
example, in December 2012, 3,999,563 pounds of carbon black were used at the Toyo
Tire facility. It is also undisputed that Toyo Tire has an air quality permit from the
Georgia Department of Natural Resources (“DNR”) permitting the discharge of
particulate matter into the environment. There is evidence in the record that Toyo Tire
uses dust collection systems on the mixing lines where carbon black is introduced
into the mixing process and that an outside company performed an evaluation of the
particulate emissions from three dust collectors in February 2008. While the
evaluation demonstrated that the particulate emissions from the dust collectors were
below permitted limits, it also provides some evidence that carbon black in at least
some amount is emitted in the normal course of operations at the Toyo Tire facility.
The record also includes January 30, 2013, July 28, 2011, and January 29, 2008
reports in which Toyo Tire informed the DNR of filter ruptures resulting in brief
releases of carbon black dust into the atmosphere.
5
The plant manager explained that carbon black is a soot-like material that is
manufactured from the carbon black oil that is produced in the oil refining process.
14
Here, the Davises testified that they began to observe black dust on the
Property after the Toyo Tire facility began operating. Duron Davis recalled first
observing the dust during a family gathering in or around the summer of 2007. He
testified that his grandchildren were running in the grass, and the adults noticed that
everywhere the children ran they were kicking up black dust. The children’s shoes
were covered in black and were difficult to clean. Lynn Davis recalled the same
event. Duron Davis testified that he sometimes buys and sells motor homes and that
if he left one on the Property for long, it would become black and would be difficult
to clean. He also recalled pulling an apple off of one of his apple trees that was
completely black and that his air conditioning system became clogged with a sticky
black substance. Lynn Davis testified that the black dust is on anything outside that
you wipe down.
Given the evidence of Toyo Tire’s use and emission of carbon black, the very
close proximity of the Davises’ home to Toyo Tire’s facility, and the Davises’
testimony about observing the black dust after the facility began operations, we
conclude that a fact issue exists as to whether the black dust the Davises have
observed emanates from the Toyo Tire facility and is carbon black.
15
4. Toyo Tire next contends that the Davises may not recover damages for both
diminution in value to their property and personal discomfort and annoyance. It is
well settled, however, that a plaintiff in an action for nuisance may recover for both
damage to person and damage to property. See City of Atlanta v. Hofrichter/Stiakakis,
291 Ga. App. 883, 890 (4) (663 SE2d 379) (2008); see also OCGA § 41-1-4.
Moreover, this argument is premature because it presumes that the jury will award the
Davises the damages it seeks on both claims. See Edwards Bros., Inc. v. Overdrive
Logistics, Inc., 260 Ga. App. 222, 224 (2) (581 SE2d 570) (2003).
5. Toyo Tire, citing Oklejas v. Williams, 165 Ga. App. 585 (302 SE2d 110)
(1983), contends that it was entitled to summary judgment in its favor to the extent
that the Davises’ nuisance claim is based on the alleged unsightliness of the Toyo
Tire facility. We held in Oklejas that the trial court should have granted the
defendant’s motion for directed verdict on the plaintiff’s nuisance claim that was
based on the construction of an unsightly wall in between the parties’ properties. 165
Ga. App. at 586 (1). We recited the principle that “the unsightliness of adjacent
property alone, tending to devalue the adjoining property, is not such inconvenience
as to amount to a nuisance for which an injunction will lie or damages recovered.”
(Citations and punctuation omitted.) Id. Oklejas is inapposite, however, as the
16
unsightliness of the Toyo Tire facility is only one aspect of the nuisance the facility
allegedly has created. See Segars, supra, 255 Ga. App. at 295 (1) (distinguishing
Oklejas and concluding that unsightliness of roof on house next to plaintiff’s home
was among evidence supporting jury’s finding that house constituted nuisance); see
also Sowers v. Forest Hills Subdivision, 294 P3d 427, 432 n.5 (Nev. 2013)
(aesthetics-based complaints can be one of several factors to consider in determining
the presence of a nuisance). This enumeration of error is without merit.
6. Similarly, Toyo Tire contends that the Davises cannot base their nuisance
claim on an alleged increase in traffic caused by the Toyo Tire facility. We disagree.
Even if a nuisance claim based on increased traffic alone would not be viable,
the Davises’ nuisance claim identifies increased traffic as only one of the
circumstances creating a nuisance. Compare Goddard v. Irby, 255 Ga. 47, 48 (3) (335
SE2d 286) (1985) (trial court did not err in granting summary judgment for defendant
on nuisance claim when plaintiff’s only assertion of nuisance was that construction
of the townhouses on neighboring lot would lead to an increase in traffic congestion
in front of his property) and Prairie Hills Water and Development Co. v. Gross, 653
NW2d 745, 752 (S.D. 2002) (trial court authorized to conclude that noise, dust and
large vehicle traffic associated with sandblasting business in residential neighborhood
17
constituted nuisance); Fugazzoto v. Brookwood One, 325 So2d 161, 162 (Ala. 1976)
(increased traffic may be one element of a nuisance action).
7. Since the Davises concede on appeal that their trespass claim is premised
solely on the alleged invasion of their property by black dust, Toyo Tire’s remaining
enumeration of error is moot.
In sum, the trial court properly denied Toyo Tire’s motion for summary
judgment because the Davises presented sufficient evidence to demonstrate that they
had viable claims. Accordingly, we affirm.
Judgment affirmed. Barnes, P. J., Ellington, P. J., and McFadden, J., concur.
Dillard, J., concurs in judgment only. Branch, J., concurs fully in all but Division 2
and dissents as to Division 2. Andrews, P.J., concurs in judgment only in all but
Division 2 and dissents in Division 2.
18
A1 5 A0 2 0 1 . TOYO TIRE NORTH AMERICA
MANUFACTURING, INC. v. DURON DAVIS et al.
ANDREWS, Presiding Judge, dissenting in part.
I respectfully dissent to Division 2 because Plaintiffs’ expert appraiser has not
offered an opinion that even addresses whether Plaintiffs’ property has suffered a
diminution in market value caused by the alleged invasions at issue in this case and
Plaintiffs have no other evidence of diminution in market value.
Plaintiffs’ appraiser testified that the fair market value of the Property would
be $280,000 if the Toyo Tire facility were not located directly across the street but
that its proximity to the Toyo Tire facility caused a market value depreciation of
between 40 and 50 percent. The expert explained that in reaching his valuation
conclusion, he relied in part on a paired sales analysis, which involved looking for
pairs of sales of two similar houses, one of which was located in very close proximity
to an industrial facility in or near Bartow County and the other far away from it but
still in the same general market area. He ultimately relied on three paired sales, which
included pairs of houses located close to and far from Dobbins Air Force Base, a
Budweiser plant, and a Shaw plant. The expert testified that the purpose of the
analysis was to measure whether there was “any diminution in value to a residential
property from being close to industry or a plant or something like that.” He stated
that the paired sales analysis showed that the closer a house is to an industry, the
greater the depreciation. Based on that analysis and considering the general
agricultural and residential character of the area, the expert testified that 35 to 40
percent of the reduction in value he found in this case comes from the mere presence
of the Toyo Tire facility across the street from Plaintiffs’ home. The expert testified
that the emission of particulates could cause a further reduction in value of up to 50
percent.
The expert admitted that in reaching his conclusions he did not consider the
amount of light coming on to the Property from the Toyo Tire facility or the amount
of traffic, amount of noise, or any particular odors Plaintiffs were experiencing. He
testified that he had never seen the complaint in this case or talked to Plaintiffs, and
while he was aware of the general nature of the disturbances Plaintiffs were
complaining about, he admitted, among other things, that he had no idea what kind
of noise Plaintiffs were complaining about and could not recall with specificity
anything Plaintiffs’ counsel had communicated to him about the odors affecting
2
Plaintiffs. The expert did not visit any of the properties involved in his paired sales
analysis, and, apart from noise and problems with airplanes dumping fuel from the
air near Dobbins Air Force Base, he could not identify any factors other than
proximity that would cause a reduction in value in properties close to the other
industrial sites involved in his analysis. With respect to his opinion that particulate
emissions from Toyo Tire could cause a further reduction in the Property’s value, the
expert stated that he was relying on his experience in another case determining the
depreciation in value to properties exposed to concrete dust from a nearby concrete
recycling plant. But he testified that he had not done any specific analysis regarding
the alleged particulate on the Property, stating only that “if in fact this is an analogous
situation [to the case involving concrete dust] . . . there’s a reasonable probability it
will sell . . . for 15 to 25 percent less.”
While Plaintiffs’ appraiser’s valuation may validly reflect the reduction of
value that may result from a residential property’s proximity to an industrial site
generally, that is not an issue presented in this case. Rather, the issue presented is
whether the specific invasions allegedly caused by the Toyo Tire facility and its
operations proximately caused a diminution in market value. Plaintiffs’ appraiser
admittedly did not gather any evidence about the specific invasions involved here or
3
conduct any analysis of whether the other industrial sites in his paired sales analysis
involved similar situations. Although Plaintiffs’ appraiser has prior experience in a
different case involving concrete dust, he admitted that he simply applied the same
reduction in value finding from that case to Plaintiffs’s Property based on a
hypothetical assumption that the situations were similar. Given the methodology
involved in his appraisal, any opinion that Plaintiffs’ appraiser were to offer that the
prospect of future invasions caused by the Toyo Tire facility has reduced the value
of Plaintiffs’ property would be speculative and without foundation or probative
value. See Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 305 (425 SE2d 380)
(1992). Likewise, to allow a jury to base a damages award on his valuation opinions
would be to invite an exercise in speculation, since the jury would be left to
guesswork to determine what portion, if any, of the diminution in value he found
could be attributed to the tortious conduct at issue.
Causation is an essential element of nuisance [and] trespass claims . . .
A mere possibility of such causation is not enough; and when the matter
remains one of pure speculation or conjecture, or the probabilities are at
best evenly balanced, it becomes the duty of the court to grant summary
judgment for the defendant.
4
(Footnotes and punctuation omitted.) Lore v. Suwanee Creek Homeowners Assn., 305
Ga. App. 165, 172 (2) (699 SE2d 332) (2010). I would hold that the trial court erred
in failing to grant partial summary judgment for Toyo Tire on the issue of Plaintiffs’
right to recover damages for prospective diminution in market value. I am authorized
to state that Judge Branch concurs in this dissent.
5