Appellants Scott Kleber and Nancy Habif purchased a home at 546 Cresthill Avenue in Atlanta and began to reside there in the summer of 1997. The home had been constructed in 1990. Within a few months, they informed Norfolk Southern Corporation and the City of Atlanta of inadequate drainage of their property during heavy rain. On May 16, 2003, almost six years later, their home incurred substantial flood damage from a mixture of stormwater and raw sewage. The owners sought relief from Norfolk and the city but were not satisfied. They filed suit on October 28, 2004, over seven years after they first became aware of the problem. Kleber and Habif alleged that Norfolk was liable for negligence and nuisance because the flooding was caused by an inadequate drainage pipe that ran under a Norfolk railroad track with an inlet near their property line. The culvert and the railroad tracks have been in place for decades.1 Kleber and Habif also alleged that the city’s “poor construction and maintenance of storm and/or sewer drainage system,” including a connection to Norfolk’s pipe that leads to a combined sewer overflow culvert, constituted negligence and a nuisance. They contend that the repeated flooding shows no sign of ending.
A special master appointed to determine the cause of the flooding found that the appellants’ property lies in a small basin “at the bottom of a larger drainage basin that contributes runoff to it and through it.” He found that the property floods because, although it is in good condition, “the 36-inch pipe that runs beneath Norfolk’s tracks and that ultimately drains the basin, in which the residence is located, is not large enough to empty that basin without creating a backup or ponding of stormwater in the basin.” He confirmed that the Norfolk pipe is connected to additional pipe that leads to the city’s new Clear Creek combined sewer overflow culvert CC-CSO and that prior to the construction of the CC-CSO, Norfolk’s pipe emptied into Clear Creek. The city had added a “steeper concrete pipe” to connect to the CC-CSO. In addition, the special master opined, “The City of Atlanta may have tied drainage pipes into Norfolk’s pipe for which it was not designed to handle,” although he stated in his deposition that the additional pipes drained the same basin and therefore they did not increase the overall water flow. He added that although Norfolk’s pipe may have been sufficient to drain the basin decades ago when constructed, increased development had led to more impervious surfaces, and thus more runoff. Finally, he stated that the standard for sizing drainage pipe has changed over the years. “Twenty years ago it was typical to size drainage pipes for a ten-year storm. Today the standard is a 25-year storm.” On February 20, 2007, the trial court granted summary judgment on the appellants’ nuisance claims against both defendants based on the statute of limitation and on their claim of negligence against Norfolk, finding no duty. This appeal followed.2
