Lyon v. Walker Boudwin Const. Co., 6737

• Decision Date: 06 December 1972
• Docket Number: No. 6737,6737
• Citation: 88 Nev. 646,503 P.2d 1219
• Parties: J. Paul LYON et al., Appellants and Cross-Respondents, v. WALKER BOUDWIN CONSTRUCTION CO. and First National Bank of Nevada, a corporation, Respondents and Cross-Appellants.
• Court: Nevada Supreme Court

Page 1219

503 P.2d 1219

88 Nev. 646

J. Paul LYON et al., Appellants and Cross-Respondents, v. WALKER BOUDWIN CONSTRUCTION CO. and First National Bank of Nevada, a corporation, Respondents and Cross-Appellants.

No. 6737.

Supreme Court of Nevada.

Dec. 6, 1972.

Wilson & Wilson, Elko, for appellants.

[88 Nev. 647] Richard P. Wait, George W. Swainston, Reno, for respondents.

OPINION

MOWBRAY, Justice:

The appellants, J. Paul Lyon, C. Newell Freeman, and Wilford P. Gentry, doing business as Ruby Drug, commenced this action against the respondents, Walker Boudwin Construction Co. and First National Bank of Nevada, to recover damages arising from the rotation of a sidewall of the Ruby Drug building, which rotation allegedly resulted from negligent excavation work performed by the Construction Co. on an adjacent lot owned by the Bank. The district judge before whom the case was tried agreed with the appellants and awarded them $800 in damages. The appellants have appealed, claiming that the damage award was grossly inadequate. The respondents have cross-appealed, asserting that the judge erred in finding negligence. We have reviewed the record, and we find that it supports both the ruling that the excavation work was done in a negligent manner and the award of $800 for damages.

1. The Facts.

On June 26, 1969, appellants contracted to purchase a building in Elko, Nevada, for the operation of a pharmacy, which they named Ruby Drug. The building was old, the main part having been constructed in 1915 of masonry and brick. It was abutted on the west side by another edifice, known as the Anacabe Building. When appellants agreed to buy their building, they were aware that the Bank had purchased the Anacabe property with the intention of demolishing the Anacabe Building and constructing in its place a new bank building. On August 25, 1969, the Bank engaged the respondent Construction Co. for that purpose.

To give vertical support to the Ruby Drug Building, 'underpinning' of its entire west wall, which wall abutted the Anacabe Building, was necessary. ¹ The underpinning was completed without difficulty.

A backhoe and other motorized equipment were used during excavation of the Bank lot, during which time the appellants noticed considerable vibration in the drugstore. Soon thereafter they found that their basement door would not close. Further inspection disclosed one crack in the basement floor and another in the wall of the basement, continuing up the wall on the first floor. Later inspection revealed that the west wall of the pharmacy had 'rotated,' i.e., moved out and away from the building, and had separated at the roof line. As a result of this damage, appellants closed their store for four days and now claim they suffered damages as follows:

                1.  Cost of restoration of building          $4,565.00
                2.  Permanent depreciation                    3,000.00
                3.  Four days' loss of business                 400.00
                4.  Permanent business loss                   1,097.03
                5.  Repair of display window                    169.03
                6.  Replacement of roof                         650.00
                7.  Cost of advertising opening and closing      80.00
                                                             ---------
                                                             $9,961.06
                

2. The Proof of Negligence.

The degree of negligence of an excavator for which he may be held liable has been set forth in 2 G. Thompson, Real Property § 416, at 660 (1961 replacement) as follows:

'In case of negligence on the part of the excavator, he will be liable for injury to the building caused thereby, although the land would not have fallen had there been no buildings thereon. The degree of care to be exercised, in order that the excavator may be immune from a claim for damages by the owner of adjoining real estate not in its natural condition, must be commensurate with the apparent or actual danger. The care required in each particular case depends largely upon the particular facts and circumstances and the physical conditions existing in each case. This rule does not make the excavator an insurer of the building on adjoining property. It goes no further than to require him to exercise a reasonable degree of skill and care to avoid injuring such building.'

In the instant case, the Construction Co. knew the condition of the Ruby Drug Building. Mr. Wayne Thomas Donnels, an officer of the Construction Co., testified at the trial that he had inspected the Ruby Drug Building prior to the commencement of construction work for the Bank and that he had then noticed and was aware that the building had no 'lateral ties,' i.e., that the walls were not secured to the floor. Such ties are needed to prevent or reduce the likelihood of rotation of the walls if the structure is weakened. Due to the precarious condition of the west wall, excavation by hand, rather than by backhoe, was originally planned for the project. Operation of the backhoe caused heavy vibration throughout the Ruby Drug Building. Mr. H. V. Lamberti, the structural engineer who designed the Bank's new building, testified at trial that he attributed the rotation of the west wall of the drugstore to the removal of lateral support, which occurred when the construction crew separated the Anacabe Building from the basement wall of the drugstore. From these facts, the trial judge found negligence on the part of the excavator. Since there is substantial evidence to support the court's finding, it may not be disturbed on appeal. Western...