HP Large v. Greene County, Tennessee - Dissenting ( 2009 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 15, 2009
H.P. LARGE, ET AL. v. GREENE COUNTY, TENNESSEE
Appeal from the Circuit Court for Greene County
No. 05CV754 Thomas J. Wright, Judge
No. E2009-02764-COA-R3-CV - FILED DECEMBER 28, 2009
CHARLES D. SUSANO , JR., J., dissenting.
I am troubled by the majority’s determination that the record before leads inescapably to the
legal conclusion of a permanent nuisance/inverse condemnation. I do not believe the defendant has
presented facts negating or otherwise rebutting the plaintiffs’ theory of temporary nuisance.
The two plaintiffs make the following identical statement in their respective affidavits:
For several years, since the completion of the aforementioned bridge,
my property has flooded several occasions per year.
There is evidence in the record that the bridge in question was not constructed according to
specifications or in accordance with the permit issued by the Army Corps of Engineers. The
defendant – who had the initial burden on its summary judgment motion – has not presented any
facts as to the nature and extent of the flooding to the plaintiffs’ respective properties; nor has it
offered any facts reflecting that the offending bridge cannot, as a practical matter, be remedied to
stop the flooding.
A temporary nuisance has been defined as a nuisance that can be corrected by the expenditure
of money. Pate v. City of Martin, 614 S.W.2d 46, 48 (Tenn. 1981). The defendant has not put
before us any evidence showing that the improperly constructed bridge cannot be corrected “by the
expenditure of money” in such a way as to stop the flooding caused by it. This is its obligation on
summary judgment. Hannan v. Alltel Publishing Co., 270 S.W.3d 1, 5 (Tenn. 2008). In my
opinion, the defendant has not met its burden of negating an element of the plaintiffs’ temporary
nuisance theory or otherwise demonstrated that they cannot make out their causes of action. I
believe the motion should have been denied and this case allowed to proceed.
Accordingly, I respectfully dissent.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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