The exceptions [to this rule] for inherently or intrinsically dangerous work, for nuisances per se, and for work so negligently defective as to be imminently dangerous to third persons, apply in cases where the contractor is guilty of negligence in the performance of its work.David Allen Co. v. Benton, 260 Ga. 557, 558 ( 398 SE2d 191) (1990). The record reveals that Dougherty County contracted with Oxford to repave and overlay asphalt patches on a road that was owned and maintained by the County.
Bragg v. Oxford Constr. Co., 285 Ga. 98, 99, n. 1 ( 674 SE2d 268) (2009). See also David Allen Co. v. Benton, 260 Ga. 557, 558 ( 398 SE2d 191) (1990). There are, however, several well-recognized exceptions to this general rule that apply when the contractor is guilty of negligence in the performance of its work.
The exceptions to this rule "for inherently or intrinsically dangerous work, for nuisances per se, and for work so negligently defective as to be imminently dangerous to third persons, apply in cases where the contractor is guilty of negligence in the performance of its work," and not to a non-negligent contractor. David Allen Co. v. Benton, 260 Ga. 557, 558 ( 398 S.E.2d 191) (1990). The single exception applicable to a non-negligent contractor is that such a contractor who has expertise in the design of the type of work being done may not ignore defects in the design from which it is to work.
See Ogles, supra, 277 Ga. App. at 25 (1) (finding no imminent danger in paving work in the absence of evidence of potholes, crevices, or cracks). David Allen Co. v. Benton, 260 Ga. 557, 558 ( 398 SE2d 191) (1990).Barnes v. St. Stephen's Missionary Baptist Church, 260 Ga. App. 765, 769 (3), n. 3 ( 580 SE2d 587) (2003).
The Georgia courts have long understood the Takings Clause — which specifically prescribes just and adequate compensation as the remedy for an uncompensated taking — to imply a right of action against the government. See, e.g., Powell v. Ledbetter Bros., Inc., 251 Ga. 649 , 650-651 (2) (307 SE2d 663 ) (1983), overruled on other grounds, David Allen Co. v. Benton, 260 Ga. 557 , 558 (398 SE2d 191 ) (1990); Taylor v. Richmond Coun ty, 185 Ga. 610 , 611-612 (196 SE 37 ) (1938); Terrell County v. York, 127 Ga. 166 , 168 (56 SE 309 ) (1906); State Highway Bd. v. Ward, 42 Ga. App. 220 , 220-221 (155 SE 384 ) *427 (1930). Indeed, when we spoke in Sustainable Coast about the principle that the Constitution itself may waive sovereign immunity in some cases, we identified the Takings Clause as an illustration of that principle.20 See 294 Ga. at 600 (2).
Constitution of the State of Georgia of 1983 art. I, sec. III, para. 1(a); see also id. art. 1, sec. 1, para. 1 ("No person shall be deprived of . . . property except by due process of law."). See Powell v. Ledbetter Bros., 251 Ga. 649, 651 ( 307 S.E.2d 663) (1983), overruled on other grounds, David Allen Co. v. Benton, 260 Ga. 557 ( 398 S.E.2d 191) (1990); Duffield v. DeKalb County, 242 Ga. 432, 433 ( 249 S.E.2d 235) (1978). See Fulton County v. Baranan, 240 Ga. 837, 839 ( 242 S.E.2d 617) (1978); McFarland v. DeKalb County, 224 Ga. 618, 619 ( 163 S.E.2d 827) (1968).
Here, there was simply no affirmative act by the City for a public purpose causing a nuisance or trespass on Live Oak's property resulting in diminished utility and functionality of the property. See Mountain Creek Estates, supra; compare, e.g., Powell v. Ledbetter Bros., 251 Ga. 649, 650-651 (2) (307 SE2d 663) (1983) (allegation that the DOT negligently designed and maintained roads that caused repeated flood damage to private property was sufficient to sustain inverse condemnation action), overruled on other grounds, David Allen Co. v. Benton, 260 Ga. 557, 557-558 (398 SE2d 191) (1990); Duffield v. DeKalb County, 242 Ga. 432, 432-435 (1) and (2) (249 SE2d 235) (1978) (noxious odors and noise from county water pollution control plant resulted in inverse condemnation of private property). While the theory of inverse condemnation arises out of the eminent domain paragraph of the Georgia Constitution, see Doolittle, supra, 270 Ga. at 491 (1), it is not synonymous with a claim attacking the constitutionality of an existing zoning ordinance following the denial of an application to rezone (which requires a determination as to whether the plaintiff has suffered an unconstitutional deprivation or "taking").
(Punctuation omitted.) Hubbard, supra; see David Allen Co. v. Benton, 260 Ga. 557, 558 ( 398 SE2d 191) (1990). See id.
David Allen Co. held: David Allen Co. v. Benton, 260 Ga. 557 ( 398 SE2d 191) (1990). [W]here a contractor who does not hold itself out as an expert in the design of work such as that involved in the controversy, performs its work without negligence, and the work is approved and accepted by the owner or the one who contracted for the work on the owner's behalf, the contractor is not liable for injuries resulting from the defective design of the work.
Where an independent contractor or supplier properly executes the directions of the owner, only the owner, not the contractor or supplier, may be liable for injury to a third party resulting therefrom. See David Allen Co. v. Benton, 260 Ga. 557, 558 ( 398 S.E.2d 191) (1990); Russell v. Cynwid Investments, 142 Ga. App. 410, 411 ( 236 S.E.2d 147) (1977).Whatley v. National Svcs. Indus., 228 Ga. App. 602, 606(2) ( 492 S.E.2d 343) (1997) (physical precedent only).