L Investments, Ltd. v. Lynch, No. 44256

CourtSupreme Court of Nebraska
Writing for the CourtHeard before KRIVOSHA; KRIVOSHA
Citation322 N.W.2d 651,212 Neb. 319
Parties"L" INVESTMENTS, LTD., a partnership, Appellant, v. Eleanor LYNCH, Appellee.
Docket NumberNo. 44256
Decision Date30 July 1982

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.

Page 652

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[212 Neb. 320] 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

Page 653

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 [212 Neb. 321] 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 [212 Neb. 322] 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

Page 654

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...

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28 practice notes
  • Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Service Co., No. 92-C-0071
    • United States
    • Supreme Court of Louisiana
    • 24 Mayo 1993
    ...Southern Indiana Gas & Electric Co. v. Indiana Ins. Co., 178 Ind.App. 505, 517, 383 N.E.2d 387, 395 (1978); "L" Invs., Ltd. v. Lynch, 212 Neb. 319, 321, 322 N.W.2d 651, 653 (1982); Stratford Theater, Inc. v. Town of Stratford, 140 Conn. 422, 424, 101 A.2d 279, 280 (1953). Some of our own co......
  • Pepper v. J.J. Welcome Const. Co., No. 29128-9-I
    • United States
    • Court of Appeals of Washington
    • 4 Abril 1994
    ...E.g., Southern Indiana Gas & Elec. Co. v. Indiana Ins. Co., 178 Ind.App. 505, 517, 383 N.E.2d 387 (1978); cf. "L" Invs., Ltd. v. Lynch, 212 Neb. 319, 322 N.W.2d 651 (1982); cf. Ratner v. Willametz, 9 Conn.App. 565, 586, 520 A.2d 621, 633 (1987) ("cost of repairs may not be considered by the......
  • In re Trimble, PLAINTIFFS-APPELLANTS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 15 Marzo 2000
    ...today, would adopt the rule set forth in Kietges[ v. VanDermeulen, 483 N.W.2d 137, 143 (Neb. 1992),] and "L" Investments[, Ltd. v. Lynch, 322 N.W.2d 651, 656 (Neb. 1982)], limiting the recoverable costs of restoration or remediation to the market value of the Id. at 1041. The district court......
  • Board of County Com'rs of Weld County v. Slovek, No. 84SC414
    • United States
    • Colorado Supreme Court of Colorado
    • 25 Agosto 1986
    ...141, 148-52 (1966); Samson Construction Co. v. Brusowankin, 218 Md. 458, 147 A.2d 430, 434-37 (1958); "L" Investments, Ltd. v. Lynch, 212 Neb. 319, 322 N.W.2d 651, 654-56 (1982); Huber v. Serpico, 71 N.J.Super. 329, 176 A.2d 805, 813 (1962); Jenkins v. Etlinger, 78 A.D.2d 705, 432 N.Y.S.2d ......
  • Request a trial to view additional results
28 cases
  • Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Service Co., No. 92-C-0071
    • United States
    • Supreme Court of Louisiana
    • 24 Mayo 1993
    ...Southern Indiana Gas & Electric Co. v. Indiana Ins. Co., 178 Ind.App. 505, 517, 383 N.E.2d 387, 395 (1978); "L" Invs., Ltd. v. Lynch, 212 Neb. 319, 321, 322 N.W.2d 651, 653 (1982); Stratford Theater, Inc. v. Town of Stratford, 140 Conn. 422, 424, 101 A.2d 279, 280 (1953). Some of our own co......
  • Pepper v. J.J. Welcome Const. Co., No. 29128-9-I
    • United States
    • Court of Appeals of Washington
    • 4 Abril 1994
    ...E.g., Southern Indiana Gas & Elec. Co. v. Indiana Ins. Co., 178 Ind.App. 505, 517, 383 N.E.2d 387 (1978); cf. "L" Invs., Ltd. v. Lynch, 212 Neb. 319, 322 N.W.2d 651 (1982); cf. Ratner v. Willametz, 9 Conn.App. 565, 586, 520 A.2d 621, 633 (1987) ("cost of repairs may not be considered by the......
  • In re Trimble, PLAINTIFFS-APPELLANTS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 15 Marzo 2000
    ...today, would adopt the rule set forth in Kietges[ v. VanDermeulen, 483 N.W.2d 137, 143 (Neb. 1992),] and "L" Investments[, Ltd. v. Lynch, 322 N.W.2d 651, 656 (Neb. 1982)], limiting the recoverable costs of restoration or remediation to the market value of the Id. at 1041. The district court......
  • Board of County Com'rs of Weld County v. Slovek, No. 84SC414
    • United States
    • Colorado Supreme Court of Colorado
    • 25 Agosto 1986
    ...141, 148-52 (1966); Samson Construction Co. v. Brusowankin, 218 Md. 458, 147 A.2d 430, 434-37 (1958); "L" Investments, Ltd. v. Lynch, 212 Neb. 319, 322 N.W.2d 651, 654-56 (1982); Huber v. Serpico, 71 N.J.Super. 329, 176 A.2d 805, 813 (1962); Jenkins v. Etlinger, 78 A.D.2d 705, 432 N.Y.S.2d ......
  • Request a trial to view additional results

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