L Investments, Ltd. v. Lynch

• Decision Date: 30 July 1982
• Docket Number: No. 44256,44256
• Court: Nebraska Supreme Court
• Parties: "L" INVESTMENTS, LTD., a partnership, Appellant, v. Eleanor LYNCH, Appellee.

Page 651

322 N.W.2d 651

212 Neb. 319

"L" INVESTMENTS, LTD., a partnership, Appellant, v. Eleanor LYNCH, Appellee.

No. 44256.

Supreme Court of Nebraska.

July 30, 1982.

Syllabus by the Court

1. Damages: Property. The basic principle of the law of damages is that such compensation in money shall be allowed for the loss sustained as will restore the loser to the same value of property status as he occupied just preceding the loss.

2. Damages: Property. Except as otherwise hereinafter limited, where an improvement upon realty is damaged without damage to the realty itself and where the nature of the thing damaged is such that it is capable of being repaired or restored and the cost of doing so is capable of reasonable ascertainment, the measure of damages for its negligent damage is the reasonable cost of repairing or restoring the property in like kind and quality. This would be in addition to any other consequential damages which the injured party may establish by proper proof. If, in fact, the cost of repair or restoration exceeds the market value of the property just before the injury, then the proper measure of damages is the market value of the property just before the damages were incurred, less any salvage.

3. Damages: Property: Proof. The burden of establishing the cost of repair shall be upon the party seeking recovery. If the party against whom recovery is sought believes that the cost of repair exceeds the market value of the property just before damage, then the burden shall be upon such party to introduce evidence to establish that fact, and it will then be up to the trier of fact to determine which of the two measures of damages should be employed. Absent evidence that the cost of repair or restoration exceeds the market value of the property just before damage, it will be presumed that the cost of repair or restoration does not exceed the market value of the property just before damage.

4. Case Overruled. To the extent that Hunt v. Chicago, B. & Q. R. R. Co., 180 Neb. 375, 143 N.W.2d 263 (1966), is to the contrary, it is overruled.

Marianne Clare Vainiunas of Marks, Clare, Hopkins, Rauth & Cuddigan, Omaha, for appellant.

Eugene L. Hillman of McCormack, Cooney, Mooney & Hillman, P. C., Omaha, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

KRIVOSHA, Chief Justice.

This case presents to the court the question of what is the proper measure of damages when recovery is sought for the negligent damage to an improvement which is a part of the real estate, when the property can be repaired or restored. Initially, this case was tried in the municipal court of the city of Omaha, Nebraska, and resulted in a judgment in favor of the property owner. On appeal to the District Court for Douglas County, Nebraska, the trial court, relying upon what appears to be at least one of the rules of law in Nebraska at the present time, reversed the judgment and dismissed the action. In view of the fact that we believe the applicable rule should be otherwise, we reverse the action of the trial court.

The record discloses that on September 25, 1977, appellee Eleanor Lynch (Lynch), while operating a motor vehicle owned by John B. Sheffield, struck a building located at 1492 South 16th Street in the city of Omaha, Nebraska, and owned by the appellant, "L" Investments, Ltd. ("L" Investments).

"L" Investments filed a petition in the municipal court of the city of Omaha, Nebraska, alleging that "L" Investments was the owner of the property which was struck by Lynch on September 25, 1977, when the automobile she was driving collided with the south side of the building. The petition further alleged that the building was damaged by the collision and that such damage was proximately caused by the negligence of Lynch. The acts of negligence were specifically set out in the petition. The petition further alleged that as a direct and proximate result of the negligence of Lynch, "L" Investments was damaged in the amount of $3,200. Although Sheffield and Lynch filed an answer denying generally all of the allegations of the petition, just before trial commenced Lynch admitted liability but denied that her negligence caused the damages claimed by "L" Investments. During the course of the trial in the municipal court, testimony was adduced to establish that as a result of the accident a portion of one of the outer walls measuring 8 feet by 4 feet was pushed in and damage was done to both the wall itself and several windows located in the wall. Testimony further established that the building itself was approximately 100 feet by 100 feet. Further testimony was adduced by "L" Investments which established in great detail how the repairs would be made to the property and what the cost would be. A complete breakdown of how the cost of repairs in the amount of $2,640 was arrived at was testified to by an expert called by "L" Investments. Following the trial, the trial court entered judgment for "L" Investments and against Lynch in the sum of $2,640. Sheffield was dismissed from the lawsuit by "L" Investments before judgment and may be disregarded for purposes of this appeal.

Lynch then appealed to the District Court for Douglas County, Nebraska, and a hearing de novo on the record was held on February 19, 1981. The trial court, relying upon what it correctly understood to be the rule in Nebraska, as announced in Hunt v. Chicago, B. & Q. R. R. Co., 180 Neb. 375, 143 N.W.2d 263 (1966), found that the injury sustained by "L" Investments as a result of Lynch's negligence was temporary in character and that therefore the proper measure of damages for recovery was the cost of restoration, if less than the diminution in value measured by the difference in value of the premises immediately before the accident and immediately after the accident. The District Court further found that the record was wholly lacking as to any evidence concerning the diminution in value to the real estate caused by the accident. Therefore, the court concluded that "L" Investments had failed to establish the fact that the cost of the repairs was less than the diminution in value to the property, and could not recover. The judgment of the municipal court was reversed and the case was dismissed.

As we indicated at the outset, this case presents to the court an opportunity to clarify what should be the rule of law regarding the proper measure of damages to be awarded where injury is caused to an improvement located upon the real estate and the injury can be repaired or the improvement restored. One might anticipate that the answer to that question would be relatively simple. However, an examination of the cases, both within this jurisdiction and elsewhere, discloses that there is some confusion regarding the proper measure of damages.

Dobbs, in his Handbook on the Law of Remedies, observes: "Most courts follow the rule that repair costs, when used as a measure, may not exceed the diminution in value of the property. Several courts have varied this formula by allowing repair or restoration cost to exceed the diminution in the value of the property but limiting such cost to the total pre-tort value of the property.... A few courts have allowed recovery for cost of restoration that exceeds the diminished value of the property, or have at least stated that cost of restoration is the measure without any ceiling." § 5.1 at 317-18 (1973).

An examination of just some of the cases reported discloses that there may in fact be as many as four or five different rules. See, Hunt v. Chicago, B. & Q. R. R. Co., supra; Jack L. Baker Cos. v. Pasley Mfg. & Distrib. Co., 413 S.W.2d 268 (Mo.1967); System Fuels, Inc. v. Barnes, 363 So.2d 747 (Miss.1978); Andersen v. Edwards, 625 P.2d 282 (Alaska 1981); Heninger v. Dunn, 101 Cal.App.3d 858, 162 Cal.Rptr. 104 (1980); Huber v. Serpico, 71 N.J.Super. 329, 176 A.2d 805 (1962); Samson Co. v. Brusowankin, 218 Md. 458, 147 A.2d 430 (1958); Thatcher v. Const. Co., 21 Ohio App.2d 41, 254 N.E.2d 703 (1970); Assn. v. Auerbach, 64 Ohio App.2d 40, 410 N.E.2d 782 (1979); Pitts v. Pine Meadow Ranch, Inc., 589 P.2d 767 (Utah 1978); The Rector etc. of St. Christopher's v. C. S. McCrossan, Inc., 306 Minn. 143, 235 N.W.2d 609 (1975); Zwick v. Simpson, 193 Colo. 36, 572 P.2d 133 (1977); A. I. D. Insurance Services v. Riley, 25 Ariz.App. 132, 541 P.2d 595 (1976); Myers v. Arnold, 83 Ill.App.3d 1, 38 Ill.Dec. 228, 403 N.E.2d 316 (1980); Lobozzo v. Adam Eidemiller, Aplnt., 437 Pa. 360, 263 A.2d 432 (1970); Conkin v. Ruth, 581 P.2d 923 (Okl.App.1976); Colella v. King County, 72 Wash.2d 386, 433 P.2d 154 (1967); Butler v. Anderson, 71 Wash.2d 60, 426 P.2d 467 (1967); Bd. of Ed. v. Commonwealth, Dept. of Hwys., 528 S.W.2d 657 (Ky.1975); United States Steel Corp. v. Benefield, 352 So.2d 892 (Fla.App.1977); General Outdoor Adv. v. LaSalle Rlty., 141 Ind.App. 247, 218 N.E.2d 141 (1966); Moser v. Thorp Sales Corp., 312 N.W.2d 881 (Iowa 1981); Bluemlein v. Szepanski, 101 Mich.App. 184, 300 N.W.2d 493 (1980).

In 22 Am.Jur.2d Damages § 138 (1965), the author notes: "The underlying theory governing the recovery of damages in those cases in which a building or other structure is injured through the fault of the defendant is the same as that which applies to injuries to real property generally. The basic goal of the court is compensation--that is, to award such an amount of money as will restore the injured party to the same property status which he occupied immediately prior to the injury. It is not possible, however, to state a single rule of damages which applies invariably to cases of this type. The facts vary from case to case. The building may be unused, it may be a large factory from which profits are derived, it may be located on land belonging to the plaintiff, the building may be owned by the plaintiff but situated on land leased from a third party, or the building may even be separated...