The trial court granted Bunce and Parks summary judgment, concluding that they were "being sued in their capacity as officers and agents of the City," that neither the pleadings nor the facts "tend to show that any act complained of was done in any manner other than with the utmost good faith on the part of the city officers," and that "[a]s agents of the city, defendants are shielded by the doctrine of Derivative Immunity since suing them amounts to suing the city itself." Citing City of Atlanta v. Leake, 243 Ga. 20 ( 252 S.E.2d 450) (1979), the court also explained that a cause of action in nuisance was unavailable to plaintiffs because "the alleged damages occurred not in the maintenance of, but rather in the abatement of the alleged nuisance." Superior Signal was left as sole defendant.

To be liable for nuisance, a municipality must be charged with performing a continuous or regularly repetitious act or condition which causes injury, and it must have knowledge or be charged with notice of the dangerous condition or repetitive acts causing injury. Palmerio, supra. A one-time occurrence does not amount to a nuisance. City of LaGrange v. Whatley, 146 Ga. App. 174 ( 246 S.E.2d 5); see City of Atlanta v. Leake, 243 Ga. 20, 21 ( 252 S.E.2d 450); Morin v. City of Valdosta, 140 Ga. App. 361, 362 ( 231 S.E.2d 133). The collision in this case was a one-time occurrence.

While it is clear that the pleadings were sufficient to state a claim against the defendant city on the theory of nuisance (see Winston v. City of Austell, 123 Ga. App. 183, 185 (6, 7) ( 179 S.E.2d 665)), nevertheless, under the recent cases following Palmerio, supra, with reference to municipal tort liability for maintenance of a nuisance, the evidence here failed to establish that the defendant was "performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition," or that the defendant had knowledge or was chargeable with notice of the dangerous condition thus distinguishing Palmerio, supra, from the case of Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 837-838 ( 165 S.E.2d 141). See in this connection City of Atlanta v. Leake, 243 Ga. 20 ( 252 S.E.2d 450), reversing Leake v. City of Atlanta, 146 Ga. App. 57 ( 245 S.E.2d 338). See also City of East Point v. Terhune, 144 Ga. App. 865, 866-867(1) ( 242 S.E.2d 728); City of LaGrange v. Whatley, 146 Ga. App. 174 ( 246 S.E.2d 5).

It has never been presumed that the law intended that the right to construct and maintain a system of drainage carries with it the right to construct or maintain it in such a way as to endanger the health or life of another.City of Atlanta v. Leake, 243 Ga. 20, 252 S.E.2d 450 (1979), quoting Lawrence v. City of LaGrange, 63 Ga. App. 587, 589, 11 S.E.2d 696 (1940). In sum, the Court finds that plaintiff's allegations are sufficient to state a cause of action in nuisance.

I therefore dissent. See City of Atlanta v. Leake , 243 Ga. 20, 20–21, 252 S.E.2d 450 (1979) (In a case where the plaintiffs alleged that the city maintained a nuisance in the form of a clogged sewer and sought damages for personal injury, the trial court correctly ruled that the city was entitled to summary judgment on the merits. Whether the city was entitled to sovereign immunity was not discussed.

DEEN, Chief Judge. The prior holding of this court in Leake v. City of Atlanta, 146 Ga. App. 57 ( 245 S.E.2d 338) (1978), has been reversed on certiorari by the Supreme Court ( 243 Ga. 20). Appellant, however, has filed a motion in this court contending that the ruling of the Supreme Court eliminated the theory of nuisance from the case, but it did not pass upon the remaining two counts of her complaint which alleged (1) that Mr. Leake's death was caused by negligence of the city through its agents and employees in the conduct of its ministerial functions, and (2) that the Supreme Court did not pass upon Count 3 of the complaint which alleged that she would be denied equal protection and due process of law if the defendant were granted immunity for its negligent acts.