Southeast Consultants, Inc. v. O'Pry

• Decision Date: 01 March 1991
• Docket Number: No. A90A1753,A90A1753
• Citation: 199 Ga.App. 125,404 S.E.2d 299
• Parties: SOUTHEAST CONSULTANTS, INC. et al. v. O'PRY.
• Court: Georgia Court of Appeals

Page 299

404 S.E.2d 299

199 Ga.App. 125

SOUTHEAST CONSULTANTS, INC. et al. v. O'PRY.

No. A90A1753.

Court of Appeals of Georgia.

March 1, 1991.

Rehearing Denied March 13, 1991.

Certiorari Denied May 15, 1991.

William A. Wehunt, Atlanta, Charles A. Mullinax, Stone Mountain, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Paul R. Vancil, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

D. Michael O'Pry sued Benny L. Brunner and Southeast Consultants, Inc., engineering and land surveyors who were subcontractors on O'Pry's new house, for negligence in performing percolation tests prior to installation of a septic tank. Three months after O'Pry purchased the new house for $117,500, the noxious condition of the septic tank manifested itself. The jury rendered a verdict for O'Pry for $125,000. Brunner and Southeast Consultants appeal. Held:

1. Appellants contend they were entitled to judgment n.o.v. on grounds the plaintiff has no standing to sue because his contract was with the builder and not with appellants.

It is well settled that privity is not necessary to found a suit in negligence. Georgia-Carolina Brick, etc. v. Brown, 153 Ga.App. 747, 266 S.E.2d 531. The fact that plaintiff's contract was with another does not prevent plaintiff from seeking damages for negligence. One who in the course of his business, profession or employment supplies false information is subject to liability for damages caused by others' justifiable reliance upon the information, where he fails to exercise reasonable care or competence in providing the information, and where the loss is suffered by one for whose benefit he supplies the information or knows that the recipient intends to supply it, and whom he intends the information to influence or knows that the recipient so intends. Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 300 S.E.2d 503. Thus, where the engineer knows that prospective purchasers could rely on his report, a lack of privity will not shield him from liability to the foreseeable prospective purchasers. Id. It was foreseeable to appellants that the person directly injured as the result of their negligence would be the purchaser of the house; therefore, a clear duty was owed in that regard.

Plaintiff gave evidence that the percolation test results provided to Gwinnett County showed an acceptable range of percolation in the soil on this lot, which induced the county to issue a permit to install a septic tank; but in fact the rate of percolation was grossly unacceptable and, knowing that, the county would not have allowed a septic tank to be installed on this property. On appeal of the denial of judgments n.o.v., we view the evidence in favor of the jury's verdict, and where there is evidence to support the verdict it cannot be said the evidence demanded a contrary verdict. OCGA § 9-11-50; see Stone v. Cook, 190 Ga.App. 11, 12, 378 S.E.2d 142. Appellants were not entitled to judgment n.o.v.

2. Appellants contend the trial court erred in denying them judgment n.o.v. as to the amount of damages. Appellants argue in essence that the measure of damages cannot be based on the present market value of the house as it would have been at the time of trial, but must be based on its value at the time plaintiff bought it; and that in any case plaintiff's testimony that as the result of appellants' negligence the house has "no value" is an improper basis to award damages.

" 'As a general rule the measure of damages ... for injuries to real property is the difference in value before and after the injury to the premises' " (Mercer v. J & M Transp. Co., 103 Ga.App. 141, 143, 118 S.E.2d 716), or, "the difference ... between what the builder built and what he should have built." Piedmont Bldrs. v. Fullerton, 157 Ga.App. 126, 127, 276 S.E.2d 277; see Hortman v. Cantrell, 173 Ga.App. 429, 430, 326 S.E.2d 779. "The measure of damages ... is the difference in value of the house as finished and the value of the house as it should...