Anthony v. Construction Products, Inc.

Decision Date17 May 1984
Citation677 S.W.2d 4
PartiesHoward ANTHONY and Wanda Anthony, Plaintiffs-Appellants Cross-Appellees, v. CONSTRUCTION PRODUCTS, INC. and Reliance Insurance Company, Defendants-Appellees Cross-Appellants. 677 S.W.2d 4
CourtTennessee Court of Appeals

J. Houston Gordon, Covington, for plaintiffs-appellants.

Lawrence C. Maxwell, Nashville, Russell Rice, Jr., Jackson, for defendants-appellees.

CRAWFORD, Judge.

This appeal involves a judgment based on a jury verdict. Plaintiffs, Howard Anthony and Wanda Anthony (hereinafter Anthony), filed suit against Construction Products, Inc., (hereinafter CPI) and Reliance Insurance Company (hereinafter Reliance). The trial court, at the conclusion of the proof, directed a verdict for Reliance and then subsequently entered judgment on the jury verdict for Anthony against CPI in the amount of $75,000 compensatory damages and $75,000 punitive damages. On post trial motions the trial court suggested a remittitur of $50,000 on the punitive damages, which was accepted under protest by Anthony, and both parties have appealed.

CPI presents four issues for review by this court, and Anthony presents two issues which we will consider in the order presented.

Anthony's complaint, filed May 13, 1982, alleges in substance that they owned a convenience-type store known as the Minit Mart at 1100 West Market Street, Bolivar, Tennessee, and sold gasoline, food items, drinks, beer and cigarettes; on or about March 12, 1982, the State of Tennessee, Department of Transportation, entered into a contract with defendants CPI for the improvement of 1.314 miles of Route 15, Hardeman County, to be completed in 175 working days, and plaintiffs incorporated the terms of the contract by reference into the complaint; and as required by law, CPI obtained a surety bond from Reliance, a copy of which is incorporated by reference. The street involved in the contract runs directly and immediately in front of the Minit Mart Store, and CPI commenced performance shortly after the contract was signed in March, 1981, with a completion date tentatively set for November 1, 1981. In the complaint plaintiff further alleges that: CPI was generally negligent in completing the contract, failing to timely and reasonably perform, keeping the street in an unreasonable state of disrepair and allowing conditions to exist for more than a year; CPI maintained a nuisance by means of some unprofessional disorganization and sloppy performance of the construction work, both of which unduly interfered with Anthony's business; also the alleged negligent acts and omissions of CPI constituted either gross negligence or conscious and wanton disregard for the rights of Anthony; the Anthony's business sustained damages as a result of the nuisance created by CPI and the negligence and gross negligence of CPI; and in addition Reliance, the insurance company, is liable to Anthony because the performance bond executed for the project created a third-party beneficiary contract for the benefit of Anthony.

In its answer, Reliance admits the construction contract and the performance bond, but denies the material allegations of negligence, gross negligence and nuisance made against the defendants. CPI in its answer admits the contract and performance bond, but denies the material allegations of the complaint concerning negligence, gross negligence and nuisance. CPI affirmatively asserts that it was not furnished adequate information concerning work being performed at the construction site by the telephone company; that a lack of cooperation with the telephone company existed which resulted in some disruption of the highway improvement project; and that it performed the work under the instruction and control of the State of Tennessee.

We will now consider the issues presented by CPI.

I. Whether the trial court erred in failing to grant CPI's motion for a directed verdict at the close of the proof.

In considering a motion by defendant for a directed verdict, trial and appellate judges are required to look to all the evidence, to take as true the evidence in favor of plaintiff, to discard all countervailing evidence, to take the strongest legitimate view of the evidence for plaintiff, and to allow all reasonable inferences from it in his favor. If any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence exists, the motion must be denied. Poe v. Atlantic Coast Line Railroad Co., 205 Tenn. 276, 326 S.W.2d 461 (1959), Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6 (1954).

A nuisance is anything which annoys or disturbs free use of one's property, or which renders its ordinary use or physical occupation uncomfortable. Caldwell v. Knox Concrete Products, Inc., 54 Tenn.App. 393, 402, 391 S.W.2d 5, 9 (1964).

A nuisance may exist either with or without negligence. As a general rule, negligence is not involved in nuisance actions or proceedings and is not essential to the cause of action. If a particular use of property causes a nuisance this fact is sufficient to entitle a person injured thereby to relief. If a nuisance exists, the fact that due care was exercised and due precautions were taken against the annoyance or injury complained of does not relieve defendant of liability. Weakley County v. Carney, 14 Tenn.App. 688, 693 (1932).

A temporary nuisance is one that can be corrected by expenditure of labor or money. Caldwell v. Knox Concrete Products, Inc., supra.

CPI contends that the activities of CPI did not constitute a nuisance for which Anthony can recover, no competent proof of CPI's negligence exists and Anthony failed to prove damages.

CPI asserts that as long as a contractor under a public contract performs in a proper manner and acts in accordance with the public authority's order, the contractor shares the immunity of the public authority from liability for any injury that may result and cites Wood v. Foster & Creighton Co., et al, 191 Tenn. 478, 235 S.W.2d 1 (1950). We have no quarrel with CPI's statement as to the holding of Wood v. Foster & Creighton Co., et al, supra, but CPI has overlooked the major premise on which the rule in Foster is based, i.e. that if the contractor followed the direction of its superior, the State of Tennessee, and in so performing the construction was not negligent, then the contractor would not be liable to third parties. The record in the case before us indicates activities performed by CPI's agents and employees that clearly could be classified as negligent within the commonly accepted definition of negligence. It is the theory of Anthony, and proof was introduced in support thereof, that CPI dug a trench in front of Anthony's business establishment on May 15, 1981, that the ditch never properly drained, that gravel used to cover part of the ditch obstructed the drainage itself, that the gravel was not suitable to provide proper ingress and egress to the Anthony's business and that this condition continued for several months. Lay witnesses testified generally concerning the difficulty in gaining access to the store, and that customers quit shopping at the Minit Mart because they were afraid of getting their car stuck due to the condition of the temporary driveways constructed and maintained by CPI. Testimony concerning the incorrect method used by CPI in its construction of the gravel driveway centered on the fact that the gravel was not compacted as required. Certainly material evidence was introduced concerning the negligence of CPI's employees in the performance of the contract. Clearly from the proof in the record the finder of fact could also determine that Anthony's free use and enjoyment of the property was hindered.

However, CPI also relies upon T.C.A. Sec. 12-4-503 (1980), which CPI contends absolutely discharges it from any liability to Anthony for the complained of actions. The statute provides:

Discharge of contractor from liability--Upon acceptance by the state of a state contractor's work, provided that such state contractor's work is done in accordance with the plans and specifications, such state contractor is discharged from all liability to any party by reason of its lack of ordinary care in the performance of, or failure to perform, such work on such state construction project.

CPI's reliance on this statute is misplaced. This statute does not apply to the situation presented by the case at bar. The statute was intended to and does cover liability which may arise subsequently to the acceptance of the contractor's work by the state and pertains to the workmanship performed by the contractor. The statute could not operate to release and discharge a tortfeasor for damages caused to another merely by the state's acceptance of the work. This statute was not intended nor does it apply to relieve the contractor of his obligation to respond in damages to one injured or damaged by the contractor's actions at the time of performing the work required by the contract.

Lastly, CPI contends that the trial court should have directed a verdict, because the Anthonys failed to prove their damages. In Caldwell v. Knox Concrete Products, Inc., supra, the court provided the correct measure of damages for a temporary nuisance:

"For temporary or recurring nuisance, damages may be recovered from time to time for impairment of the use and enjoyment of the property; and the measure of such damages will be the injury to the value of the use and enjoyment, which may be measured to a large extent, by the rental value of the property, and to what extent that rental value is diminished." City of Murfreesboro v. Haynes, 18 Tenn.App. 653, 82 S.W.2d 236 and cases cited therein.

Id. at 407, 408, 391 S.W.2d at 12.

Material evidence was produced by Anthony concerning the loss of business occasioned by the condition of the access to their...

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