District of Columbia v. Fowler

• Decision Date: 23 August 1985
• Docket Number: No. 81-1050.,81-1050.
• Citation: 497 A.2d 456
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Norma J. FOWLER, Appellee.
• Court: D.C. Court of Appeals

497 A.2d 456

DISTRICT OF COLUMBIA, Appellant, v. Norma J. FOWLER, Appellee.

No. 81-1050.

District of Columbia Court of Appeals.

Argued March 22, 1984.

Decided August 23, 1985.

COPYRIGHT MATERIAL OMITTED

Edward E. Schwab, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Washington, D.C., at the time the brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and William J. Earl, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellant.

Charles A. Brady, Washington, D.C., for appellee.

Before PRYOR, Chief Judge, and FERREN and TERRY, Associate Judges.

TERRY, Associate Judge:

After notifying the District of Columbia of her intention to sue,¹ appellee filed this action against the District of Columbia, seeking damages under theories of nuisance, negligence, and encroachment for the improper construction and maintenance of an alley adjacent to her property. In particular, appellee alleged that inadequate maintenance of the alley had caused it to deteriorate, resulting in structural damage to her house and garage. She also alleged that a three-inch-wide strip along the side of the alley next to her house was on her side of the property line. In a non-jury trial, the court granted the District's motion to dismiss the negligence count at the close of the plaintiff's case. At the end of the trial, the court entered judgment for appellee and awarded her $1 in damages on the encroachment claim and $50,375 on the nuisance claim. The District's post-trial motion to set aside the judgment was denied.

Because it is not presented to us, we do not address the encroachment issue.² With respect to the nuisance claim, we affirm the trial court's finding that a nuisance existed, and that the District was liable for failing to abate it, but we reverse the judgment and remand this case for reconsideration of the amount of damages, if any, to be awarded.

I

In 1961 appellee and her husband purchased a house on Underwood Street, N.W., which had been built in 1924.³ A public alley, paved with concrete slabs, had been constructed in 1925 adjacent to the lot on which the house stood.

About three years after they had moved in, Mr. and Mrs. Fowler began making repairs on a regular basis to cracks that repeatedly appeared in the walls and ceilings of both their house and their garage. For several years they were unable to identify the cause of these cracks. Some of the repairmen who worked on the house attributed the cracks to vibrations resulting from vehicular traffic in the alley, but others suggested that they might have been caused by a settling of the foundation. Finally, in 1978 Mr. Fowler noticed a loose slab of concrete in the alley and concluded that the alley was the source of the trouble.⁴

The Fowlers then sought help. Roger Butler, a member of a civil engineering firm, testified that he inspected the property in July 1979 and concluded that the vibrations in the alley were due to inadequate subsoil support for the concrete pavement. He said that the alley, the garage roof, and the eastern wall of the Fowler home needed to be replaced. The evidence established that the Fowlers had notified the District of Columbia of the problem and requested assistance sometime in late 1978 or early 1979.⁵ Frederick Thane, a District employee who appeared as an expert in the measurement of vibrations and structural damage, testified that he and a colleague inspected the Fowler home on October 3, 1979. In addition, there was evidence that other District employees were dispatched at some point to make repairs to the alley, but it is not clear exactly when these repairs were made.⁶

Experts from both the District and the private engineering firm testified as to the relationship between the alley vibrations and the damage to the Fowler property. Mr. Thane, the District's witness, told the court that during his October 3 visit he conducted tests with a vibration meter while a colleague drove an automobile through the alley in an attempt to reproduce the conditions that the Fowlers had noticed. He testified that the reading on his meter reflected the presence of vibrations which, if prolonged, were significant enough to cause damage. Like Mr. Butler, appellee's witness, Mr. Thane concluded that at least some of the damage to the Fowlers' property was the result of alley vibrations. A third witness, Louis Gilford, also a civil engineer, testified as to the cost of repairing the structural damage. Limited by the court to those portions of the property which Mr. Butler had said were damaged as a result of the vibrations, Gilford stated that the total cost of repairs would be $64,992.

In announcing its decision at the end of the trial, the court found that "the construction of this alley in such a fashion that it abutted the garage, without any space in between, and the failure to maintain the alley in a reasonably safe . . . condition [so] as to avoid the cracks and the vibrations due to vehicular traffic" constituted a public nuisance and caused damage to the Fowlers' property.⁷ The court ruled, however, that in computing the amount of its judgment, it would take into account only those damages that could be measured from "the point at which [the District] was put on notice of the existence of the nuisance and allowed an opportunity to abate that nuisance."

Turning to the actual calculations, the court first rejected evidence that the Fowlers had spent approximately $20,000 in repairs over a fifteen-year period before the District was put on notice of the condition of the alley. Then, focusing on Mr. Gilford's testimony, the court excluded $7,000 which Gilford had estimated as the cost of replacing the garage wall next to the alley, since Mr. Butler had testified that the wall could be repaired, and "[u]nder the proper element of damages, one can only be compensated for the necessary cost of repair, if that's possible, or replacement if repair would not solve the problem." In addition, the court rejected Mr. Gilford's estimate of $700 for repairs to the dining room because it was not one of those areas in which structural damage had been attributed by Mr. Butler to the alley vibrations. The court then concluded:

[T]hat leaves us with . . . $18,000 for replacement of the ceiling of the garage, $16,000 for the den, and I find from the testimony that the den has got to be torn down and put back in order to get the floors of the patio itself. . . . So that leaves $18,000 plus $16,000 plus $6,300, which would be the interior wall minus $700 for the dining room. That comes to a total of $40,300. . . . [To] the base figure of $40,300, I added a ten percent figure for profit, which is $4,030 and I added 15 percent . . . for overhead, which is $6,045. Adding those two figures to the $40,300 I end up with $50,375 to be awarded to the plaintiff under the nuisance theory, plus one dollar under the encroachment theory, making a total award to the plaintiff of $50,376.

The District contends that the award of damages on Mrs. Fowler's nuisance claim was erroneous.

II

A landowner who creates a nuisance may be held liable for all resulting damages from the time of its creation up to the entry of judgment. See 1 F. HARPER & F. JAMES, THE LAW OF TORTS § 1.30, at 91 (1956). When the landowner did not create the nuisance, however, he is not liable for damages resulting from it until he receives actual or constructive notice of it. E.g., Clarke v. Boysen, 39 F.2d 800, 819 (10th Cir.), cert. denied, 282 U.S. 869, 51 S.Ct. 75, 75 L.Ed. 768 (1930); Tennessee Coal, Iron & Railroad Co. v. Hartline, 244 Ala. 116, 123, 11 So.2d 833, 839 (1943); City of Phoenix v. Harlan, 75 Ariz. 290, 293-94, 255 P.2d 609, 612-613 (1953); Reinhard v. Lawrence Warehouse Co., 41 Cal.App.2d 741, 745-748, 107 P.2d 501, 504-505 (1940); Ahern v. Steele, 115 N.Y. 203, 213, 22 N.E. 193, 196 (1889); RESTATEMENT (SECOND) OF TORTS § 839 (1979).

In this case there is not any evidence, or even any allegation, that the District created the nuisance by improperly designing or constructing the alley in 1925. Appellee's claims are based solely on the District's alleged failure to maintain the alley properly after being put on notice of its defective condition. In this regard, the trial court's findings are somewhat confusing. It found in part that "the construction of this alley in such a fashion that it abutted the garage, without any space in between, and the failure to maintain the alley in a reasonably safe . . . condition . . . did cause damage to the plaintiff's property" and constituted a nuisance. In so ruling, the court could only have been referring to the fact that in recent years the existing construction of the alley amounted to a nuisance. It made no finding, and indeed it could not have, that the District was negligent when it built the alley in 1925. Having no evidence before it regarding the state of the art of alley building in 1925 or the weight of the cars that might then be expected to pass through the alley, the court could not have found the original design and construction to be negligent.

Thus the District, if it is liable at all, can be liable only for that damage which occurred after it was given notice of the defect in the alley. See RESTATEMENT (SECOND) OF Tons §§ 838-839 (1979); 58 AM. JUR.2D Nuisances § 57 (1971). See generally Trent v. City of New York, 286 App. Div. 479, 144 N.Y.S.2d 625 (1955). Without any evidence to the contrary, we must presume that the alley was properly constructed in 1925 and that, at worst, it may have fallen into disrepair thereafter.

It is the law in this jurisdiction that a party may not succeed in a negligence claim against the District of Columbia for injuries sustained as a result of defective conditions in its streets or highways unless the party demonstrates that the District had actual or constructive knowledge of the dangerous condition bringing about the injury. District...