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Davis v. City of Forsyth9/9/2005
ANDREWS, P. J., PHIPPS and MIKELL, JJ.
Ronald H. Davis and Beverly Davis filed an action against the City of Forsyth in 2001 seeking injunctive relief and damages for a continuing nuisance based on repeated sewage overflows onto their property dating to the early 1990s. The Davises amended their complaint in 2003 to add a personal injury claim. The City moved for partial summary judgment, which the trial court granted, ruling that the personal injury claim was barred due to the plaintiffs' failure to assert it in the ante litem notice given to the City on May 9, 2001. The court also ruled, in accordance with binding Supreme Court precedent, that all claims for property damage occurring prior to six months preceding the date of the notice were barred. The Davises appeal. Applying a de novo standard of review, we affirm.
1. The Davises assign error to the trial court's determination that their ante litem notice did not sufficiently state a claim for bodily injury. Although, on appeal from the grant of a summary judgment, we view the evidence, as well as all reasonable conclusions that may be drawn from it, in the light most favorable to the Davises, we agree with the trial court's ruling.
An ante litem notice is a prerequisite to the filing of suit against a municipality. The pertinent Code section, OCGA § 36-33-5 (b), requires a claimant " ithin six months of the happening of the event upon which a claim . . . is predicated" to present the claim in writing, "stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment." The purpose of the ante litem notice requirement is to give the municipality "the opportunity to investigate potential claims, ascertain the evidence, and avoid unnecessary litigation."
The Davises, through counsel, provided ante litem notice to the City on May 9, 2001. The notice, a two-page letter, thoroughly details the history of the sewage backups dating to the early-1990s and the various unsuccessful measures taken to alleviate the problem. The letter states that it serves as notice that the City is maintaining a public and private nuisance by permitting an inadequate sewer line to serve the Davises' neighborhood. Significantly, the letter does not state that the Davises seek to recover for personal injuries. Although the notice states that the sewage backup has "caused an ongoing health hazard," it only requests "monetary damages in the form of lost rental income, lost wages, expenses, and aggravation." The letter attributes the lost wages to "lost time from work . . . in having to deal with this problem."
We recognize that " ubstantial compliance with the requirements of OCGA § 36-33-5 is all that is necessary [and that] he statute is in derogation of the common law and must be strictly construed against the municipality." But the notice must provide enough information to enable the municipality to conduct an investigation into the alleged injuries and determine if the claim should be settled without litigation. To that end, the statute requires the notice to state the "extent of the injury," which we have defined as "the nature, character, and particulars of the injury." A statement that sewage overflows pose a "health hazard" does not serve as notice of "the nature, character, and particulars" of a personal injury claim. The letter does not state that the claimants had suffered any injury to their persons. Therefore, the City could not determine whether any such claim should be settled withou
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