Emond v. Tyler Building and Const. Co., Inc.

• Court: Court of Appeal of Louisiana
• Writing for the Court: JASPER E. JONES
• Citation: Emond v. Tyler Building and Const. Co., Inc., 438 So.2d 681 (La. App. 1983)
• Decision Date: 20 September 1983
• Docket Number: No. 15630-CA,15630-CA
• Parties: Paul Eugene EMOND, Jr., et ux., Plaintiffs-Appellants-Appellees, v. TYLER BUILDING AND CONSTRUCTION COMPANY, INC. et al., Defendant.

Page 681

438 So.2d 681

Paul Eugene EMOND, Jr., et ux., Plaintiffs-Appellants-Appellees, v. TYLER BUILDING AND CONSTRUCTION COMPANY, INC. et al., Defendant.

No. 15630-CA.

Court of Appeal of Louisiana Second Circuit.

Sept. 20, 1983.

Rehearing Denied Oct. 20, 1983.

Cook, Yancey, King & Galloway by Charles G. Tutt, Shreveport, for plaintiffs-appellants-appellees.

Nelson Moak, Benton, for defendant-appellee, Tyler Bldg. & Const. Co.

Frederick L. Miller, Shreveport, for defendant-appellant, Robert E. Jones & Assoc., Inc.

William L. Lowe, Shreveport, for third-party defendant and appellee, Mike Harlan.

Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.

JASPER E. JONES, Judge.

This is an action by home owners, the Emonds, against the builder of their home, Tyler Building and Construction Co., Inc., and the designer of its foundation, Robert E. Jones & Associates, Inc. Tyler made a third party demand against Jones. The Emonds and Jones both appeal a judgment, rendered after a trial on the merits, awarding judgment in favor of the Emonds against Tyler but sustaining an exception of no right of action and rejecting their demands against Jones and awarding judgment in favor of Tyler on its third party demand against Jones. We amend and affirm.

On June 2, 1978, the Emonds purchased a house on lot 21 of the Steeple Chase subdivision in Shreveport, Louisiana. The Emonds bought the house from Tyler who had built it on a foundation designed by Jones. The house suffered extensive damage in July 1980, when its foundation failed.

The Emonds brought this action seeking a reduction in the price of the house, damages and attorney's fees. Tyler made a third party demand against Jones. Jones interposed an exception of no right of action to the main demand.

After a four day trial on the merits the district judge granted judgment on the main demand in favor of the plaintiffs and against Tyler in the amount of $17,265.35 and on the third party demand in favor of Tyler and against Jones in the amount of $15,665.35.

Jones' motion for a new trial was denied and these appeals followed. The appeals raise the following primary issues:

1) do the Emonds have a right of action against Jones;

2) was the design of the foundation a cause of the damage to the house;

3) was the foundation negligently designed;

4) may the Emonds recover for the reduced market value of their house; and

5) may the Emonds recover for their mental anguish.

Issue # 1

Jones has interposed an exception of no right of action to the main demand. The basis for the exception is that there is no privity of contract between Jones and the Emonds.

The exception of no right of action tests whether the plaintiff is in the class to which the law extends a remedy. Frazier v. Green Steel Bldg., Inc., 409 So.2d 1290 (La.App. 2d Cir.1982).

Though the petition is couched primarily in terms of an action on a contract or in redhibition, it also alleges that Jones committed the tort of malpractice and thereby injured the plaintiffs. ¹ The plaintiffs, the victims of the alleged tort, are the proper parties to assert the action.

The exception of no right of action is not well founded and should have been overruled.

Issue # 2

Jones argues that the damages were caused not by its design of the foundation as found by the district judge, but instead by improper site preparation and the characteristics of the soil.

Causation is a question of fact upon which the trial judge's findings may not be disturbed absent manifest error. Causey v. Monroe, 421 So.2d 1151 (La.App. 2d Cir.1982), writ denied, 426 So.2d 180 (La.1983). Conduct is a cause in fact of an injury if it is a substantial factor in bringing about the harm. Taylor v. State, 431 So.2d 876 (La.App. 2d Cir.1983).

The foundation for the plaintiffs' house was actually designed by Ron Smith, an employee of Jones. Smith designed the foundation without having the soil of lot 21 tested and without examining the site. He designed the foundation without the grade beams required by sound engineering practice.

Had Smith, an engineer, ordered soil testing the unstable characteristics of the soil on the lot would have been discovered and could have been protected against. Smith's failure to order soil testing and his failure to include the grade beams required by sound engineering practices were both substantial factors in the failure of the foundation and resultant damage to the plaintiffs.

The district judge's conclusions as to causation are correct.

Issue # 3

We now consider whether the foundation was negligently designed. This involves two inquiries: first, whether the engineers owed a duty to the plaintiffs to protect against the risk encountered and, second, whether that duty was breached.

An engineer owes a duty to exercise the degree of professional care and skill customarily employed by others of his profession in the same general area. Am. Fid. Fire Ins. v. Pavia-Byrne Engineering, 393 So.2d 830 (La.App. 2d Cir.1981), writ denied, 397 So.2d 1362 (La.1981). This duty extends in favor of both owners and users of the project upon which the engineer works. See Am. Fid. Fire Ins. v. Pavia-Byrne Engineering, supra. (Engineers duty extended to surety of project); Gurtler, Hebert & Co. v. Weyland Mach. Shop, 405 So.2d 660 (La.App. 4th Cir.1981) (architect's duty extended to sub-contractor).

It cannot be seriously argued that the Emonds and Tyler are not within the scope of the duty owed by Jones. Further, the risk that was encountered, damage from the failure of an inadequate foundation, is one which the engineer should have protected against.

The decisive question with respect to Jones' liability to Tyler and the Emonds is whether its employee, Smith, breached its duty to them. There are two possible breaches of this duty suggested by the record: first, the failure of the engineer to have the soil tested in order to determine how the foundation should be designed to meet the soil characteristics of the site; and, second, the failure of the engineer to include the grade beams required by sound engineering practice.

With respect to the first possible breach Jones contends that the professional standard of engineers in the Shreveport area was to rely on soil data furnished by the FHA. The flaw in this position is that the evidence does not support it. The record indicates that, though some engineers rely exclusively on FHA data, this is not a general practice followed by all engineers. The record also shows that, to whatever extent that practice is followed, it is one that has developed among some Shreveport engineers and is not in accord with sound engineering principles.

The testimony of plaintiff's three engineers corroborated to some extent by one of the defendant's engineers, fully support these conclusions and the trial judge's determinations are fully supported by the evidence. Jones' employee, Smith, breached his professional duty in failing to obtain soil data for lot 21 before designing the foundation.

With respect to the second possible breach we note particularly the testimony of Mr. Stanley Cothern, a civil engineer called as an expert witness by Jones. Cothern testified that sound engineering principles required that grade beams be placed at least every twenty feet in a foundation of the type designed for the house in question. He also indicated that they may have to be placed even closer for additional strength under some soil conditions. The foundation of the Emond home does not have grade beams even every twenty feet.

The duty owed to the Emonds and Tyler was breached by the engineer's failure to design a foundation which met even the minimum requirements of sound engineering principles.

The foundation was negligently designed by Jones' employee, Smith, and Jones is responsible to the Emonds and Tyler for the damages suffered. ²

Issue # 4

The Emonds contend they are entitled to recover for the loss of market value of their home due to the structural problems. The trial judge found that no loss of market value had been adequately proven.

Damages for loss of market value may be recovered, see Firmin v. Frantom, 354 So.2d 1089 (La.App. 2d Cir.1978), but the plaintiff must prove them as he must prove every element of damages claimed. Reid v. Allstate Ins. Co., 407 So.2d 34 (La.App. 3d Cir.1981).

The plaintiffs attempted to prove this element of damages through the testimony of Mr. Francis Grigsby, a Shreveport realtor. Though Grigsby's primary experience is as a realtor and his appraisals are not widely accepted in the Shreveport financial community, he was allowed to testify as an expert on the strength of one course in appraising and his experience in the field.

Grigsby opined the Emonds' house was worth $5,000 less than an identical house without foundation problems. He admitted that his procedure in appraising the house was "pretty subjective." His testimony also shows that his appraisal was based on the incorrect assumption that the house was one year old rather than its actual age of three years at the time of the appraisal.

The weight given the testimony of an expert is determined by his qualifications, experience in the field and the facts upon which his opinion is based and the trial judge has considerable discretion, which should not be disturbed absent...