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03/03/94 ANN H. BEASLEY v. EDDIE PELMORE

March 3, 1994

ANN H. BEASLEY, PLAINTIFF-APPELLEE,
v.
EDDIE PELMORE, D/B/A PELMORE CONSTRUCTION ENTERPRISES, DEFENDANT-APPELLANT, AND LABORERS' LOCAL NO. 703, DEFENDANT, AND AUTO-OWNERS INSURANCE COMPANY, INTERVENOR.



Appeal from Circuit Court of Champaign County. No. 85L1279. Honorable George S. Miller, Judge Presiding.

As Corrected March 31, 1994.

Honorable Carl A. Lund, J., Honorable John T. McCULLOUGH, P.j., Honorable Robert W. Cook, J.

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

Defendant Eddie Pelmore, d/b/a Pelmore Construction Enterprises, appeals from a $112,527.88 judgment entered in favor of plaintiff Ann Beasley following a bench trial in the circuit court of Champaign County.

Defendant contracted to demolish a building owned by defendant Laborers' Local No. 703 (Union) next to and with a party wall of a building owned by plaintiff which housed a business known as the Old Fashion Tavern. In demolishing the portion of the party wall adjacent to the rear of plaintiff's building a collapse resulted, damaging the building. The trial court granted summary judgment on the issue of liability, based primarily upon res ipsa loquitur. Defendant contends this was error and also contends error in determining damages.

RES IPSA LOQUITUR

Our supreme court concisely stated the res ipsa loquitur (res ipsa) doctrine in Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 448-49, 207 N.E.2d 305, 307. The act causing the injury must be shown to be under the control or management of the party charged with negligence and it must be shown that the occurrence would not ordinarily have happened if those in control had used reasonable care. If those elements are shown, then a presumption or inference of negligence is raised and the presumption or inference does not vanish when contrary evidence appears, but remains to be considered with all evidence in the case. Whether the doctrine applies in a given case is a question of law. ( Metz, 32 Ill. 2d at 449, 207 N.E.2d at 307.) The Metz decision is consistent with textbook treatment of the doctrine. See 65A C.J.S. Negligence §§ 220.1, 220.2, 220.6, 220.9, at 506, 512, 537, 549-(1966).

Here, we have a defendant in sole control of demolition of the adjoining building, which included removal of the top portion of the wall adjoining plaintiff's building. Evidence here indicates a party-wall agreement. Plaintiff had the right to use the wall for support of her building. (See Illinois State Bank v. Neece (1976), 43 Ill. App. 3d 470, 357 N.E.2d 228.) As a general rule, neither adjoining owner of a party wall has a right to destroy or remove it. (69 C.J.S. Party Walls § 16, at 15 (1951).) The responsibility, then, was upon defendant to complete his demolition without damaging plaintiff's property.

The removal of the front portion was completed by handwork, and no damage occurred. A hydraulic hoe was used to push the back portion of the wall and, in doing so, a hole was knocked out, resulting in collapse of a portion of the wall and, according to plaintiff's evidence, creating serious structural damage to at least a portion of the wall supporting plaintiff's building.

While defendant argues there was no evidence of negligence and that other factors may have caused the damage, we disagree. This, as was Metz, is a classic res ipsa case. Here, the damage would not have occurred absent defendant's negligence, and summary judgment was proper.

DAMAGES

Prior to the granting of plaintiff's motion for summary judgment, the case had gone to a jury trial. At the close of plaintiff's case, the Judge declared a mistrial. The parties then agreed to submit the case to the trial court in a bench trial. That trial was held on March 1, 1993.

In her case in chief in the damages trial, plaintiff presented her own jury trial testimony and that of Karl Zech, David Wickersheimer and Gary Meneley.

David Wickersheimer's jury trial testimony was that he is a consulting structural engineer. He examined plaintiff's building at her former attorney's request. The building has two distinct structural systems, one in the front and one in the back (where the damage occurred). The north 20 feet (the rear of the building) adjacent to the west wall (the common wall) had completely collapsed. The section to the east had been weakened. Had the accident not occurred, the west wall could have served as a wall of plaintiff's building. The wall was noticeably out of plumb, meaning that it was no longer vertical and was unstable. He used a plumb bob to determine this. It was his opinion that the building could have been reconstructed and returned to use as a tavern.

If the west wall was to remain, he recommended reinforcing it to a height above the building's ceiling plane and tying it with anchors to the roof construction. The ceiling plane should also have been taken down and replaced in the tavern area because the ceiling sags.

Wickersheimer could see areas where some of the nails into the joists had pulled loose from the impact. There were clean sections ofwood visible from the displacement that had occurred in the ceiling plane and in the roof girders. Since everything else was dirty from age, it was clear the movement had been relatively recent. It would be impossible to assess how many of the nails had lost their mechanical bond.

The roof in the collapsed and weakened areas needed to be replaced. Wickersheimer recommended that the entire length of the west wall be replaced because of his inability to assess what sector of the wall was good and what sector was not. By its being out of plumb, the wall would have to be torn down and reconstructed to make it a vertical wall anyway. Part of his reasoning is that after the demolition, the wall would be an exterior wall instead of an interior wall, which would make it subject to wind loads it did not have to endure before and it would no longer be supported by the demolished building. Reconstructing it as a concrete block wall would have been just as sufficient as brick and more cost effective. Wickersheimer admitted he has no way of knowing whether the wall was out of plumb before the accident. The wall could possibly be reinforced by using pilasters, which would not require the wall to be torn down. He also admitted that using drywall screws or longer nails might stabilize any loose joints in the ceiling in the front part of the building and take care of the sag that way.

Gary Meneley's jury trial testimony was that he was part owner of a construction company in 1985. He inspected plaintiff's building and gave her an estimate of repairs. The total amount of his estimate was $89,921. This would have put the building into the condition plaintiff wanted it in to operate her business. He prepared two estimates. A second estimate (for $38,272) was prepared at the request of plaintiff's insurance company, and was for repair of damages caused by the falling brick, including structural and cosmetic damage and damage due to weather. Additional work other than that on the lower estimate would have to be done before the building could have reopened as a tavern. He had access to the reports of the structural engineer, and he attempted to comply with those recommendations in his estimates. Meneley admitted the higher estimate contained some items of general betterment to the property, as opposed to specific items for repair of damage done by the falling bricks. Meneley did not specify what items in the higher estimate were for improvement of the building.

Karl Zech's jury trial testimony focused on damage to plaintiff's personal property. He testified he is a friend of plaintiff and that he is an electrician with 40 years' experience. Plaintiff called him to her tavern on the day of the collapse. He observed damage to the electrical wiring inside the rear of the building and that there were bricks and dust all over everything. He disconnected the power. The walk-in cooler where plaintiff kept her beer and perishables would not operate. The compressors for the coolers in the front of the tavern would not operate because they were full of dirt and debris. Dust is the worst thing for contacts and on electronic devices. There' were stress cracks in the drywall in the front part of the building. The duct work for the air conditioning was torn down. The meter recorded the power drain, and plaintiff had a $1,400 electric bill while using nothing requiring electricity. He and plaintiff compiled an inventory of her damaged personal property within a week of the collapse. He made only a cursory examination of the items at that time. He later went to the place where plaintiff had stored her property and made another examination of the items using a multimeter and an ohmmeter.

Zech went through his list of items, testifying as to what could and could not be repaired. He admitted he was not qualified to testify as to the fair market value of any of the items as of the date of the damage. He also stated that he could not testify as to whether the repair cost of the items exceeded their value without taking the items apart and further testing them to find out what needed to be repaired, which he did not do. The trial court would not allow evidence of replacement cost, but allowed evidence of costs of inspection and cleaning. Zech was allowed to testify that repair costs of certain items exceeded their replacement cost.

At the jury and bench trials, plaintiff testified she did not rebuild the building because she did not have the money. Prior to the collapse, she had put new plate glass in the front of the building, recessed the entry way, added a new roof, had insulation blown in, and put in a new furnace and air conditioning, in addition to a new floor and toilet in the men's rest room.

She took several inventories at the request of defendant's insurance representatives. One was a spoilage inventory on items disposed of because of odor. Another inventory was for smashed items in the back room. Exhibit No. 4 from the jury trial was mainly for cleaning costs until the extent of damage could be determined. At that point, the items had not been electrically checked. Damaged items were also listed on exhibit Nos. 3, 5A, and 17 from the jury trial.

At the jury trial, plaintiff's counsel sought to qualify her as an expert witness on valuation of her damaged personal property. She testified that she first became involved in the tavern business in 1962 when she was a bartender for her uncle. In 1964 she began working for another tavern and became involved in ordering inventory; after that she was manager of a bar. She did all ordering of merchandise and inventory and contracted repairs for equipment, and she bargained on prices and sold used equipment. She has done these same things in her own business. She has become familiar with the market price for various items in the tavern and has sold used equipment out of her bar, such as a jukebox, cooler, big draft box, and pool table. She prepared a list of each item that was in the bar on the day of the accident, including the age and expected remaining useful life of each.

With regard to the fair market value of each item, she determined what she believed would be sale price of each item prior to the injury. She took into account the amount of service life for each item that had been used and that which remained. For ...


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