Storm Water Run-Off Case Raises Several Issues of Procedure and Tort Law

A recent case involving storm water run-off from a residential construction development raises several issues of Georgia litigation procedure and the law of torts.  It also discusses the important interplay of federal and state laws in the context of storm water run-off litigation. 

Background

Developer began performing construction work near Homeowners’ existing homes.  Homeowners alleged that the work caused excess storm water run-off and sediment onto their properties.

Developer purchased the properties from a prior owner who had hired an engineering firm to conduct a water run-off study.  The study concluded that storm water run-off could be controlled by constructing a weir, which was installed by the prior owner.  Developer relied on the study to design and construct the development.

During construction, excessive amounts of storm water, dirt, sediment, and development debris were discharged into a creek and ultimately into the ponds located on Homeowners’ properties.   Another study concluded that the run-off was caused by Developer’s construction activities and its failure to install and maintain erosion control devices required by law.

At trial, the jury awarded Homeowners $2.49 million in damages, including attorney fees.  Developer appealed based on a number of alleged errors by the trial court.

Testimony from Plaintiff’s Attorney

Developer first contended that the trial court erred in allowing Homeowners’ attorney to testify at trial.  The testimony related to alleged spoliation of evidence (i.e., deleted emails from Developer’s email system).  Homeowners’ attorneys testified, based on their own observations, that documents were removed from a stack of documents to be copied.  Developer’s attorney responded that those documents were removed based on the attorney-client privilege.  Yet a court-appointed special master concluded that Developer had deleted the emails at issue.

Developer argued that Georgia law, and the Rules of Professional Conduct, prevent attorneys from testifying at trial.  But Homeowners countered that attorneys may testify about matters relating to their fees and the other party’s bad faith and stubborn litigiousness and causing unnecessary trouble and expense.  In addition, the Rules of Professional Conduct allow an attorney to testify where his or her disqualification would cause substantial hardship to the client.  Based on Homeowners’ arguments, the trial court did not err in allowing the attorney to testify.

Negligence Per Se Based on the Federal Clean Water Act

Homeowners brought their claims under Georgia’s environmental statutes (i.e., the Georgia Water Quality Control Act, the Georgia Waste Control Act, and the Georgia Erosion and Sedimentation Control Act).  Nevertheless, at trial Homeowners presented evidence that Developer violated the federal Clean Water Act in an attempt to establish negligence per se.

Negligence per se is a legal theory that, in part, allows a plaintiff to establish a defendant’s negligence by showing the defendant violated a rule of law.   In this case, the rule of law was the federal Clean Water Act.

Developer argued that testimony related to the federal Act should have been excluded from trial because the federal Act.  Its argument rests on (i) the absence of a private right of action under the federal Act (i.e., it does not authorize lawsuits by private citizens) and (ii) the Homeowners’ failure to provide the statutory notice under the federal Act.

The court was not persuaded by Developer’s arguments.  First, a plaintiff may cite a defendant’s violation of federal statute as evidence of negligence per se, even if the plaintiff’s claim is not based on the federal statute.  This is true even if the federal statute does not provide for a private right of action.  In other words, the statute may establish the level of care or standard of conduct without providing private citizens the right to sue based thereon.

Lastly, the court held that the Homeowners were not required to provide statutory notice under the federal Act because their lawsuit was not based on the federal Act.  The procedural requirements of the federal Act are not imposed on Homeowners simply because they cited Developer’s violation of the federal Act as negligence per se.

Conclusion

There are many instances in construction in which federal laws intersect with state law.  This case demonstrates that, at least in some cases, even if federal law does not apply, it may impose a standard that may be used to establish state law claims.

In addition, it is rare to see an attorney testify about events occurring during discovery.  But the peculiarity of this case – including the oddity of spoliation of evidence – may just give rise to one of the rare exceptions.

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