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McElmurray v. Augusta-Richmond County7/11/2005
of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of recovery comes within that authorized with reasonable certainty by the legal evidence submitted.
A plaintiff who establishes injury causation but fails to furnish sufficient data to enable a jury to estimate actual damages with reasonable certainty may still recover nominal damages.
(e) The trial court ruled that the McElmurrays' breach of contract claim is barred by a clause in the parties' agreement under which the McElmurrays agreed to "indemnify and hold harmless" Augusta and other entities "for any and all claims, demands, causes of actions or suits, of any kind whatsoever arising from the land spread application program, and all activities incident to said operation." Because a jury could interpret this clause as an agreement by the McElmurrays to indemnify the city from claims of third parties and not as an agreement to refrain from bringing suit on claims that the McElmurrays themselves might have against the city, the court erred in awarding summary judgment to Augusta-Richmond County on this ground.
Judgment affirmed in part and reversed in part. Ruffin, C. J., Blackburn, P. J., and Barnes, J., concur.
Andrews, P. J., Johnson, P. J., and Mikell, J., dissent.
Andrews, Presiding Judge, dissenting.
Because the damages claimed in this case did not occur as a result of the county's negligent use of a motor vehicle, they are not covered by the liability insurance purchased by the county. Therefore, I disagree with the majority's conclusion that the State has waived sovereign immunity and I respectfully dissent.
A county enjoys the same constitutional sovereign immunity as the State. Waiver of a State's sovereign immunity, like waiver of any constitutional right, is strictly construed in favor of the holder of the right. Pennhurst State School &c. v. Halderman, 465 U. S. 89, 99 (104 SC 900, 79 LE2d 67 (1984). See also Crider v. Zurich Ins. Co., 222 Ga. App. 177, 178 (474 SE2d 89) (1996). The majority's expansive interpretation of OCGA ยง 33-24-51 ignores this rule.
As the majority opinion states, the sludge was spread on the McElmurrays's land from 1979 until 1990. The damages claimed by the McElmurrays as a result of this sludge have no relation to the manner in which the sludge was applied to the land and did not occur during the spreading of the sludge. This case did not arise because Augusta-Richmond County spread the sludge. The claimed injuries would exist regardless of what means were used to spread the sludge.
A close reading of the only case relied on by the majority, Mitchell v. City of St. Marys, 155 Ga. App. 642 (271 SE2d 895) (1980), reveals that it does not support the majority's conclusion. In Mitchell, the plaintiff was sprayed with insecticide from a truck spraying for mosquitoes in the area. Id. at 642-643. The court in Mitchell stated:
Exact definition of the term "use" is elusive, and is not capable of a definition which will leave everyone "comfortable." Whether or not an injury arose from the "use" of a motor vehicle within the contemplation of a liability policy or statute depends upon the factual context of each case. In this setting the term does not imply "remoteness," but does extend beyond actual physical contact. And it would seem to extend at least to the point, beyond physical contact, where control ov
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