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McElmurray v. Augusta-Richmond County7/11/2005
dge monthly and to monitor heavy metals in the sludge to prevent harmful buildup, the agreements also imposed on the McElmurrays a duty to have the soil tested annually to show concentration of most of the same constituents the city testing was required to show.
In order to establish fraudulent concealment under OCGA § 9-3-96 sufficient to toll the statute of limitation, a plaintiff must prove that: (1) the defendant committed actual fraud involving moral turpitude, (2) the fraud concealed the cause of action from the plaintiff, and (3) the plaintiff exercised reasonable diligence to discover his cause of action despite his failure to do so within the applicable statute of limitation. [Cit.]
Because the McElmurrays were also under a duty to test the soil for the presence of hazardous substances of which they complain, they cannot show that they exercised reasonable diligence in relying on any misrepresentations by the city as to the presence of such substances. For this reason alone, the evidence fails to establish at least one of the essential elements of the McElmurrays' claim of fraudulent concealment. Accordingly, the court did not err in awarding summary judgment to Augusta-Richmond County on the question of whether the statute of limitations has run on the McElmurrays' breach of contract claim.
(b) The trial court also found insufficient evidence to support the McElmurrays' theory that feeding dairy cattle with crops fertilized by hazardous wastes can result in an immune system deficiency. (We address this issue and others relating to the McElmurrays' breach of contract claim insofar as they are relevant to issues concerning the recoverability of damages for their tort claims.)
In support of the finding under review, the trial court noted that the McElmurrays' experts had been unable to identify a single scientific study supporting their theory; that cows with similar findings in regard to heavy metals in their tissues did not have adverse health effects; that in the necroscopies that were performed, cow diseases such as Johne's disease, that occur on all dairy farms, were found to be the contributing cause of death; that none of the necroscopy reports found that any of the cows died as a result of any heavy metal buildup in their tissues; that the major clinical signs of Johne's disease, i.e., diarrhea and wasting away, are the major symptoms exhibited by the McElmurrays' cows; and that analysis of blood samples taken from cows on dairy farms that did not receive sewage sludge revealed concentrations of heavy metals comparable to those found in the McElmurrays' cows.
The court also noted that the vast majority of soil samples, and crop and cow tissue analyses, were taken or performed in 1998, eight years after the last sludge was applied to the McElmurrays' fields. During the intervening time period, the McElmurrays applied commercial fertilizer to their farmlands. Moreover, the crops grown on the McElmurrays' sludge-treated fields constituted less than 40 percent of the feed in their cows' diets. Feed from outside sources contained mineral supplementation. Finally, the court found that the McElmurrays could not identify "exceedances" of any metals claimed to harm their cows and that "exceedances," in any event, do not mean that the land has been damaged or cannot be used safely to grow crops for cow feed.
Based on the parties' citations to the record, we find the superior court's award of summary judgment to Augusta-Richmond County on causation issues unsupportable for the following reasons:
On the question of whether excessive metals were found in the soil, the McElmurrays have pointed to evidence in the record from wh
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