                                   WHOLE COURT

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                       July 16, 2015




In the Court of Appeals of Georgia
 A15A0201.  TOYO TIRE        NORTH                             AMERICA
     MANUFACTURING, INC. v. DAVIS et al.

      MILLER, Judge.

      Duron and Lynn Davis (“the Davises”) filed suit against Toyo Tire North

American Manufacturing, Inc. (“Toyo Tire”), asserting claims for trespass, continuing

trespass, and nuisance, arising out of Toyo Tire’s operation of a tire manufacturing

facility in close proximity to real property that the Davises own and where they

reside.1 Toyo Tire filed a motion for summary judgment, which the trial court denied.

The trial court certified its order for immediate review, and we granted Toyo Tire’s




      1
         The Davises stipulated that any claim based on an alleged diversion of the
natural flow of surface water on their property was barred by the statute of limitation,
and the trial court granted summary judgment for Toyo Tire on that issue.
application for interlocutory review. On appeal, Toyo Tire contends that it was

entitled to summary judgment. For the reasons that follow, we affirm.

             Summary judgment is proper when there is no genuine issue of
      material fact and the movant is entitled to judgment as a matter of law.
      O appeal from the denial or grant of summary judgment, the appellate
      court is to conduct a de novo review of the evidence to determine
      whether there exists a genuine issue of material fact, and whether the
      undisputed facts, viewed in the light most favorable to the nonmoving
      party, warrant judgment as a matter of law.

(Punctuation and footnotes omitted.) Taylor v. Campbell, 320 Ga. App. 362 (739

SE2d 801) (2013).

      So viewed, the evidence shows that the Davises own and reside on property

located at the intersection of U. S. Highway 411 and Shinall Road in Bartow County

(the “Property”). The Davises have lived on the Property since 1995. The Toyo Tire

manufacturing facility at issue is located on the other side of Highway 411 from the

Property, 1000 feet or less from the Davises’ house.

      Construction on the facility began in 2004 and was completed in 2005. Toyo

Tire’s facility began operating in January 2006. The Davises subsequently hired

counsel, who sent a letter to Toyo Tire on the Davises’ behalf on October 25, 2007.

The Davises’ counsel enclosed a draft complaint asserting claims for trespass,

nuisance, and negligence but stated that the Davises wished to pursue an amicable

                                         2
resolution of the matter and, as such, were requesting that Toyo Tire purchase their

home.

        The Davises filed their complaint in the instant action on February 27, 2013.

The complaint alleges that, since Toyo Tire began operating the manufacturing

facility, the Davises have been subjected to: constant noise from, among other

sources, truck traffic in and out of the facility, backup alarms on vehicles at the

facility, and the facility itself; lights from the truck traffic, equipment and the facility

itself; black dust that invades the Property, believed to be carbon black; foul odors

from the facility; drastically increased traffic on Highway 411 and Shinall Road from

trucks entering and leaving the facility and employees going to and from work; and

the unsightliness of the facility.

        The record reflects that Toyo Tire’s operations have expanded over time. Toyo

Tire’s president and plant manager testified that the Toyo Tire facility and operations

have grown in several phases. The initial phase, Phase I, was completed in October

2006, and at that time, the plant was producing approximately 3000 tires a day and

approximately 90,000 per month. In 2008, the facility reached a production level of

approximately 4500 tires a day and approximately 135,000 per month after Phase II,

an internal expansion involving the addition of equipment, was complete. By the time

                                             3
a Phase III expansion was completed in the summer of 2011, the factory was

producing approximately 13,500 tires a day, 400,000 tires per month, and 4.7 million

tires per year. Between 2006 and 2011, the number of employees at the facility

increased from approximately 350 or 400 to 1000. At the time of the plant manager’s

deposition, March 10, 2014, Toyo Tire had initiated a Phase IV expansion that was

expected to bring production to between 6.7 to 7 million tires per year and the number

of employees at the factory to roughly 1450.

      1. Toyo Tires contends that all of the Davises claims are barred by the four-year

statute of limitation OCGA § 9-3-30. We disagree.

      The resolution of this issue is controlled by the Georgia Supreme Court’s

decision in Cox v. Cambridge Square Towne Houses, Inc., 239 Ga. 127 (236 SE2d

73) (1977). In Cox, a storm drain system was installed in an apartment complex

owned by the defendant. Id. at 127. More than four years later the plaintiff, a

neighboring property owner, filed a trespass action against the apartment complex

owner, alleging that the drain system had increased the flow of surface waters across

his land. Id. The trial court granted summary judgment for the defendant on the basis

that the action was barred by the four-year statute of limitation applicable to actions



                                          4
for trespass upon or damage to realty. Id. Relying on the Restatement of Torts, our

Supreme Court reversed. Id. at 129.

      The Supreme Court first quoted Section 930 of the Restatement, which

addresses damages for future invasions on land, as follows:

      (1) Where, by the maintenance of a structure on his own land or by acts
      and operations thereon, a person causes continuing or recurrent tortious
      invasions of the land of another, the other is entitled to recover for
      future [invasions] if, and only if, it appears that (a) the situation will
      continue indefinitely and (b) it is incident to (i) an enterprise affected
      with a public interest, the operation of which as presently operated will
      not be enjoined, or (ii) other enterprises if the injured person so elects.


Id. at 128, citing Restatement of Torts § 930. It went on to discuss comment d to

Section 899.2 Id. Comment d begins by explaining that “where there is a series of

harms caused by the existence of a structure or by the operation of a business outside

the land, the time when the statute of limitations begins to run depends upon the rules

. . . stated in § 930.” Restatement of Torts § 899, cmt. d. Comment d first explains the

accrual rules that apply “[i]n cases where a public utility or governmental agency



      2
        That section sets forth the general principle that “[a] cause of action for a tort
may be barred through lapse of time because of the provisions of the statute of
limitations.” Restatement of Torts § 899.

                                            5
erects a harmful structure . . . or conducts a harmful activity, . . . and the interference

with the plaintiff’s interests is not abatable by a proceeding in equity.” Restatement

of Torts § 899 cmt. d. The portion of comment d upon which the Supreme Court

relied in Cox, however, concerns “other cases when there is a series of continuing

harms.” The comment explains that in these other cases, “the plaintiff, under the

rule[] stated in . . . § 930 has an election to recover or is permitted to recover damages

only for harm to the use of the land up to the time of trial. In cases of this type, the

statute does not run from the time of the first harm except as to the harm then

caused.” Id.; Cox, supra, 239 Ga. at 128. The Supreme Court in Cox found that it

clearly appeared from the record that the situation giving rise to the alleged

interference would continue indefinitely such that the plaintiff could elect whether

to sue for damages incurred in the past four years or seek all damages, past and

prospective. Cox, supra, 239 Ga. at 129. It then construed the relevant portion of

comment d, set forth above, as providing that in either event, the statute of limitation

“does not preclude recovery for any damages save those which were suffered more

than 4 years prior to the filing of the suit.” Id.

       The same Restatement rules the Supreme Court relied upon in Cox have been

carried forward in the Restatement (Second) of Torts, which the Supreme Court has

                                            6
more recently used to guide its decisions on statute of limitation issues in nuisance

cases. See Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 333-337 (2), (3) (711

SE2d 641) (2011); City of Atlanta v. Kleber, 285 Ga. 413, 417 (1) (677 SE2d 134)

(2009).3

      Here, the evidence establishes that the Toyo Tire facility is continuing to grow

and expand, and while Toyo Tire claims that certain invasions alleged by the Davises

cannot be proved or are not actionable, it does not generally dispute that the Davises’

allegations relate to invasions that are enduring in character and not readily alterable.

See Restatement (Second) of Torts § 930, cmt. b. (“When the private structure or

enterprise that is producing the invasions is substantial and relatively enduring in

character and not readily alterable so as to avoid future injury, its maintenance or

operation ordinarily indicates that the owner intends to continue indefinitely to cause

invasions upon the neighboring land.”). Applying Cox, we conclude that the

“permanence” of the invasions alleged here would entitle the Davises to elect to

recover all available past and prospective damages but that the Davises’ claims are



      3
       Section 930 has been reworded in the interest of clarity. See Restatement
(Second) of Torts § 930, reporter’s note.


                                           7
not time-barred except as to damages for past invasions occurring more than four

years before they filed their complaint.

      Contrary to Toyo Tire’s arguments, Oglethorpe Power, supra, and Kleber,

supra, do not require a different result. In each of those cases, the Supreme Court

applied the analytical framework the Restatement (Second) of Torts provides for

determining when a nuisance claim accrues against an entity providing an essential

public service, such as electricity or railroad transportation. For example, both cases

relied upon comment c to Section 930, which explains when a nuisance caused by

such an entity is considered non-abatable. See Oglethorpe Power, supra, 289 Ga. at

334 (2); Kleber, supra, 285 Ga. at 417 (1). That comment states:

      Damage to neighboring landowners is frequently incident to the
      construction and operation of establishments employed in necessary
      public service, which nominally have the right of taking land by eminent
      domain. A railway embankment with an inadequate culvert diverts water
      upon nearby land; a municipal electric plant sends smoke and fumes into
      homes and factories; a city sewage disposal system pollutes a stream to
      the injury of bordering landowners. If the damage results from some
      minor feature of construction or management, so that it could be averted
      at slight expense, the normal remedy of successive actions for past
      invasions or relief by injunction would alone be available, as is also true
      if the harm results from an improper and unnecessary method of
      operation. But if the invasions are caused by some substantial and

                                           8
      relatively enduring feature of the plan of construction or from an
      essential method of operation, then it will usually not be abatable by
      injunction and the desirability of granting the injured person complete
      compensation for past and future invasions is apparent.


(Emphasis supplied.) Restatement (Second) of Torts § 930, cmt. c. In Oglethorpe

Power, supra, the Supreme Court also relied on the portion of comment d to Section

899, which states, among things:

      In cases in which a public utility or governmental agency erects a
      harmful structure such as a bridge or conducts a harmful activity such
      as opening a sewer that pollutes a stream and the interference with the
      plaintiff’s interests is not abatable by a proceeding in equity, the
      statutory period normally begins when the structure is completed or the
      activity is begun.


(Emphasis supplied.) Restatement (Second) of Torts § 899, cmt. d.; Oglethorpe

Power, supra, 289 Ga. at 333 (2). Cox, supra, by contrast, sets forth the statute of

limitation analysis we must apply when an alleged nuisance is created by a private

entity that is not engaged in providing a necessary public service. See Provident Mut.

Life Ins. Co. of Philadelphia v. City of Atlanta, 938 F. Supp. 829, 834 (N.D. Ga.

1995).




                                          9
      Thus, under Cox, the “permanence” of the alleged invasions entitled the

Davises to recover all available past and prospective damages, and that their claims

are not time-barred except as to damages for past invasions occurring more than four

years before they filed their complaint.4

      2. Toyo Tires next contends the Davises failed to show that the alleged

nuisances and trespasses proximately caused their property to decrease in value. We

disagree.

             Causation is an essential element of nuisance, trespass, and
      negligence claims. To establish proximate cause, a plaintiff must show
      a legally attributable causal connection between the defendant’s conduct
      and the alleged injury. The plaintiff must introduce evidence which
      affords a reasonable basis for the conclusion that it is more likely than
      not that the conduct of the defendant was a cause in fact of the result.

(Footnote omitted.) Alexander v. Hulsey Environmental Svcs., Inc., 306 Ga. App. 459,

462 (3) (702 SE2d 435) (2010). “The existence of proximate cause is a question of

fact for the jury, except in palpable, clear, and indisputable cases.” (Punctuation and




      4
        Toyo Tire further argues for the first time on appeal that it may rely on
Oglethorpe Power, supra, and Kleber, supra, because it qualifies as an “enterprise
affected with a public interest” under Restatement (Second) of Torts § 930. We need
not consider arguments raised for the first time on appeal. See Pfeiffer v. Ga. Dept.
of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002).

                                            10
footnote omitted.) Sprayberry Crossing Partnership v. Phenix Supply Co., 274 Ga.

App. 364, 365 (1) (617 SE2d 622) (2005).

      Here, the Davises submitted the opinion testimony of a property appraiser

familiar with properties in Bartow County. The expert appraiser opined that the fair

market value of the Property would be $280,000 if not located directly across the

street from the Toyo Tire facility, and the property’s value depreciated between 40

and 50 percent because of its proximity to the Toyo Tire facility. The appraiser also

testified that, out of the total reduction in value, between 15 to 25 percent was

attributable to particulate emissions contributed in the reduction in value.

      Toyo Tire does not challenge the appraiser’s qualifications, but rather argues

that the appraiser did not specifically testify that any diminution in value was caused

by the alleged nuisances and trespasses. Toyo Tire also argues that the appraiser

expert’s opinion was without foundation and, therefore, lacked probative value.

      The appraiser testified, however, that he was charged with determining the

diminution in value given the communicated characteristics of the Toyo Tire facility’s

operations, including the round-the-clock shifts, heavy traffic, and the light and noise

from the facility. While the appraiser did not independently analyze the amount of

noise, light, or pollution affecting the Property, he could base his opinion on the

                                          11
information that was communicated to him. See OCGA § 24-7-703 (“The facts or

data in the particular proceeding upon which an expert bases an opinion or inference

may be those perceived by or made known to the expert at or before the hearing.”);

see also Humphrey v. Morrow, 289 Ga. 864, 872 (II) (B) (1) (717 SE2d 168) (2011)

(an expert witness may rely on the statements of others in forming his or her expert

opinion).

      Moreover, notwithstanding Toyo Tire’s challenges to the expert appraiser’s

basis for determining the diminution in value, this presents no basis for excluding the

expert’s opinion on summary judgment, because any deficiencies in the expert’s

opinion go to the weight and credibility of his testimony.

      [Even] if the expert’s opinion was based upon inadequate knowledge,
      this does not mandate the exclusion of the opinion but, rather, presents
      a jury question as to the weight which should be assigned the opinion.
      If it be developed that the opinion is based on inadequate knowledge,
      this goes to the credibility of the witness rather than to the admissibility
      of the evidence. The weight given to expert testimony in negligence
      cases is for the trier of fact who can, but is not required to give it
      controlling influence.

(Citations and punctuation omitted.) Layfield v. Dept. of Transp., 280 Ga. 848, 851

(1) (632 SE2d 135) (2006) (reversing this Court’s affirmance of summary judgment




                                          12
to the movant because this Court incorrectly determined that the plaintiff’s expert’s

testimony lacked sufficient information to reach a probative opinion). Furthermore,

“[t]he appropriate standard for assessing the admissibility of the opinion of an expert

is not whether it is speculative or conjectural to some degree, but whether it is wholly

so.” Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857, 862 (2) (b) (686 SE2d 455)

(2009).

      Given the expert witness’s testimony that he considered the characteristics of

Toyo Tire’s facility that give rise to the alleged nuisance and trespass claims, his

opinion on the diminution of the value of the Property was not wholly speculative.

Therefore, the Davises, as the nonmoving parties, presented sufficient evidence to

defeat Toyo Tire’s motion for summary judgment. See Layfield, supra, 280 Ga. at 850

(1) (in the summary judgment context, a nonmoving party is “not required to produce

evidence demanding judgment [in their favor], but only to present evidence which

raises a material issue of fact.”) (citation omitted).

      3. Toyo Tire contends that it is entitled to summary judgment on the Davises’

claims to the extent they are premised on the Property’s exposure to carbon black

emanating from Toyo Tire’s facility because the Davises have no proof that black

dust on their Property came from Toyo Tire or is carbon black. We disagree.

                                           13
      It is undisputed that carbon black is a filler and reinforcement material used in

large quantities in the tire-manufacturing process at the Toyo Tire facility.5 For

example, in December 2012, 3,999,563 pounds of carbon black were used at the Toyo

Tire facility. It is also undisputed that Toyo Tire has an air quality permit from the

Georgia Department of Natural Resources (“DNR”) permitting the discharge of

particulate matter into the environment. There is evidence in the record that Toyo Tire

uses dust collection systems on the mixing lines where carbon black is introduced

into the mixing process and that an outside company performed an evaluation of the

particulate emissions from three dust collectors in February 2008. While the

evaluation demonstrated that the particulate emissions from the dust collectors were

below permitted limits, it also provides some evidence that carbon black in at least

some amount is emitted in the normal course of operations at the Toyo Tire facility.

The record also includes January 30, 2013, July 28, 2011, and January 29, 2008

reports in which Toyo Tire informed the DNR of filter ruptures resulting in brief

releases of carbon black dust into the atmosphere.




      5
      The plant manager explained that carbon black is a soot-like material that is
manufactured from the carbon black oil that is produced in the oil refining process.

                                          14
      Here, the Davises testified that they began to observe black dust on the

Property after the Toyo Tire facility began operating. Duron Davis recalled first

observing the dust during a family gathering in or around the summer of 2007. He

testified that his grandchildren were running in the grass, and the adults noticed that

everywhere the children ran they were kicking up black dust. The children’s shoes

were covered in black and were difficult to clean. Lynn Davis recalled the same

event. Duron Davis testified that he sometimes buys and sells motor homes and that

if he left one on the Property for long, it would become black and would be difficult

to clean. He also recalled pulling an apple off of one of his apple trees that was

completely black and that his air conditioning system became clogged with a sticky

black substance. Lynn Davis testified that the black dust is on anything outside that

you wipe down.

      Given the evidence of Toyo Tire’s use and emission of carbon black, the very

close proximity of the Davises’ home to Toyo Tire’s facility, and the Davises’

testimony about observing the black dust after the facility began operations, we

conclude that a fact issue exists as to whether the black dust the Davises have

observed emanates from the Toyo Tire facility and is carbon black.



                                          15
      4. Toyo Tire next contends that the Davises may not recover damages for both

diminution in value to their property and personal discomfort and annoyance. It is

well settled, however, that a plaintiff in an action for nuisance may recover for both

damage to person and damage to property. See City of Atlanta v. Hofrichter/Stiakakis,

291 Ga. App. 883, 890 (4) (663 SE2d 379) (2008); see also OCGA § 41-1-4.

Moreover, this argument is premature because it presumes that the jury will award the

Davises the damages it seeks on both claims. See Edwards Bros., Inc. v. Overdrive

Logistics, Inc., 260 Ga. App. 222, 224 (2) (581 SE2d 570) (2003).

      5. Toyo Tire, citing Oklejas v. Williams, 165 Ga. App. 585 (302 SE2d 110)

(1983), contends that it was entitled to summary judgment in its favor to the extent

that the Davises’ nuisance claim is based on the alleged unsightliness of the Toyo

Tire facility. We held in Oklejas that the trial court should have granted the

defendant’s motion for directed verdict on the plaintiff’s nuisance claim that was

based on the construction of an unsightly wall in between the parties’ properties. 165

Ga. App. at 586 (1). We recited the principle that “the unsightliness of adjacent

property alone, tending to devalue the adjoining property, is not such inconvenience

as to amount to a nuisance for which an injunction will lie or damages recovered.”

(Citations and punctuation omitted.) Id. Oklejas is inapposite, however, as the

                                         16
unsightliness of the Toyo Tire facility is only one aspect of the nuisance the facility

allegedly has created. See Segars, supra, 255 Ga. App. at 295 (1) (distinguishing

Oklejas and concluding that unsightliness of roof on house next to plaintiff’s home

was among evidence supporting jury’s finding that house constituted nuisance); see

also Sowers v. Forest Hills Subdivision, 294 P3d 427, 432 n.5 (Nev. 2013)

(aesthetics-based complaints can be one of several factors to consider in determining

the presence of a nuisance). This enumeration of error is without merit.

      6. Similarly, Toyo Tire contends that the Davises cannot base their nuisance

claim on an alleged increase in traffic caused by the Toyo Tire facility. We disagree.

      Even if a nuisance claim based on increased traffic alone would not be viable,

the Davises’ nuisance claim identifies increased traffic as only one of the

circumstances creating a nuisance. Compare Goddard v. Irby, 255 Ga. 47, 48 (3) (335

SE2d 286) (1985) (trial court did not err in granting summary judgment for defendant

on nuisance claim when plaintiff’s only assertion of nuisance was that construction

of the townhouses on neighboring lot would lead to an increase in traffic congestion

in front of his property) and Prairie Hills Water and Development Co. v. Gross, 653

NW2d 745, 752 (S.D. 2002) (trial court authorized to conclude that noise, dust and

large vehicle traffic associated with sandblasting business in residential neighborhood

                                          17
constituted nuisance); Fugazzoto v. Brookwood One, 325 So2d 161, 162 (Ala. 1976)

(increased traffic may be one element of a nuisance action).

      7. Since the Davises concede on appeal that their trespass claim is premised

solely on the alleged invasion of their property by black dust, Toyo Tire’s remaining

enumeration of error is moot.

      In sum, the trial court properly denied Toyo Tire’s motion for summary

judgment because the Davises presented sufficient evidence to demonstrate that they

had viable claims. Accordingly, we affirm.

      Judgment affirmed. Barnes, P. J., Ellington, P. J., and McFadden, J., concur.

Dillard, J., concurs in judgment only. Branch, J., concurs fully in all but Division 2

and dissents as to Division 2. Andrews, P.J., concurs in judgment only in all but

Division 2 and dissents in Division 2.




                                         18
 A1 5 A0 2 0 1 .      TOYO        TIRE      NORTH         AMERICA

        MANUFACTURING, INC. v. DURON DAVIS et al.



      ANDREWS, Presiding Judge, dissenting in part.

      I respectfully dissent to Division 2 because Plaintiffs’ expert appraiser has not

offered an opinion that even addresses whether Plaintiffs’ property has suffered a

diminution in market value caused by the alleged invasions at issue in this case and

Plaintiffs have no other evidence of diminution in market value.

      Plaintiffs’ appraiser testified that the fair market value of the Property would

be $280,000 if the Toyo Tire facility were not located directly across the street but

that its proximity to the Toyo Tire facility caused a market value depreciation of

between 40 and 50 percent. The expert explained that in reaching his valuation

conclusion, he relied in part on a paired sales analysis, which involved looking for

pairs of sales of two similar houses, one of which was located in very close proximity

to an industrial facility in or near Bartow County and the other far away from it but

still in the same general market area. He ultimately relied on three paired sales, which

included pairs of houses located close to and far from Dobbins Air Force Base, a
Budweiser plant, and a Shaw plant. The expert testified that the purpose of the

analysis was to measure whether there was “any diminution in value to a residential

property from being close to industry or a plant or something like that.” He stated

that the paired sales analysis showed that the closer a house is to an industry, the

greater the depreciation. Based on that analysis and considering the general

agricultural and residential character of the area, the expert testified that 35 to 40

percent of the reduction in value he found in this case comes from the mere presence

of the Toyo Tire facility across the street from Plaintiffs’ home. The expert testified

that the emission of particulates could cause a further reduction in value of up to 50

percent.

      The expert admitted that in reaching his conclusions he did not consider the

amount of light coming on to the Property from the Toyo Tire facility or the amount

of traffic, amount of noise, or any particular odors Plaintiffs were experiencing. He

testified that he had never seen the complaint in this case or talked to Plaintiffs, and

while he was aware of the general nature of the disturbances Plaintiffs were

complaining about, he admitted, among other things, that he had no idea what kind

of noise Plaintiffs were complaining about and could not recall with specificity

anything Plaintiffs’ counsel had communicated to him about the odors affecting


                                           2
Plaintiffs. The expert did not visit any of the properties involved in his paired sales

analysis, and, apart from noise and problems with airplanes dumping fuel from the

air near Dobbins Air Force Base, he could not identify any factors other than

proximity that would cause a reduction in value in properties close to the other

industrial sites involved in his analysis. With respect to his opinion that particulate

emissions from Toyo Tire could cause a further reduction in the Property’s value, the

expert stated that he was relying on his experience in another case determining the

depreciation in value to properties exposed to concrete dust from a nearby concrete

recycling plant. But he testified that he had not done any specific analysis regarding

the alleged particulate on the Property, stating only that “if in fact this is an analogous

situation [to the case involving concrete dust] . . . there’s a reasonable probability it

will sell . . . for 15 to 25 percent less.”

       While Plaintiffs’ appraiser’s valuation may validly reflect the reduction of

value that may result from a residential property’s proximity to an industrial site

generally, that is not an issue presented in this case. Rather, the issue presented is

whether the specific invasions allegedly caused by the Toyo Tire facility and its

operations proximately caused a diminution in market value. Plaintiffs’ appraiser

admittedly did not gather any evidence about the specific invasions involved here or


                                              3
conduct any analysis of whether the other industrial sites in his paired sales analysis

involved similar situations. Although Plaintiffs’ appraiser has prior experience in a

different case involving concrete dust, he admitted that he simply applied the same

reduction in value finding from that case to Plaintiffs’s Property based on a

hypothetical assumption that the situations were similar. Given the methodology

involved in his appraisal, any opinion that Plaintiffs’ appraiser were to offer that the

prospect of future invasions caused by the Toyo Tire facility has reduced the value

of Plaintiffs’ property would be speculative and without foundation or probative

value. See Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 305 (425 SE2d 380)

(1992). Likewise, to allow a jury to base a damages award on his valuation opinions

would be to invite an exercise in speculation, since the jury would be left to

guesswork to determine what portion, if any, of the diminution in value he found

could be attributed to the tortious conduct at issue.

      Causation is an essential element of nuisance [and] trespass claims . . .
      A mere possibility of such causation is not enough; and when the matter
      remains one of pure speculation or conjecture, or the probabilities are at
      best evenly balanced, it becomes the duty of the court to grant summary
      judgment for the defendant.




                                           4
(Footnotes and punctuation omitted.) Lore v. Suwanee Creek Homeowners Assn., 305

Ga. App. 165, 172 (2) (699 SE2d 332) (2010). I would hold that the trial court erred

in failing to grant partial summary judgment for Toyo Tire on the issue of Plaintiffs’

right to recover damages for prospective diminution in market value. I am authorized

to state that Judge Branch concurs in this dissent.




                                          5
