On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-5506-99.
The opinion of the court was delivered by: Graves, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wecker, Fuentes and Graves.
This case involves a dispute between adjoining landowners. Plaintiff Isadore Spiegel owns a two-story residence located atop a hill at 6-8 Watchung Road in Short Hills, an area of Millburn Township (the Township). The land owned by defendant George Leontarakis is below and to the east of Spiegel's property. At trial, Spiegel claimed he suffered property damage due to excavation work performed on Leontarakis's land, which resulted in the loss of lateral support to his property.
Spiegel appeals from an order of involuntary dismissal at the conclusion of his case. R. 4:37-2(b). The trial court reasoned that Leontarakis was not liable for any damage to Spiegel's property, because the excavation work that caused the damage was performed by an independent contractor. We reverse the involuntary dismissal order, however, because a reasonable jury could conclude Leontarakis breached a non-delegable statutory duty to provide lateral support to Spiegel's property. Spiegel also appeals from a pretrial order limiting his damage claim, but we affirm that order.
Spiegel's house faces north and the parties share a common boundary line along the eastern edge of Spiegel's property (if one is standing on Watchung Road facing Spiegel's house, Leontarakis's property is to the left of Spiegel's property). Spiegel's land slopes downward from west to east, so that the property owned by Leontarakis is lower than Spiegel's property.
In the early 1970s, Spiegel had a brick privacy wall constructed on his property along the common boundary line separating the two properties. The wall was 120-feet long, a foot thick, and it varied in height from six feet above the grade of Spiegel's property at its highest level, to two and one-half to three feet above grade at its lowest level. Spiegel also has an in-ground swimming pool in his backyard surrounded by a patio area, and there is a flagstone and concrete walkway, between six and eight feet wide, on the eastern side of Spiegel's house running from the front of the house to a set of steps behind the house. The foundation wall of Spiegel's house is located approximately seventeen feet from the common boundary line.
In 1997 Leontarakis decided to construct a new home on his vacant lot, which he hoped to sell for a profit. In July 1997, he hired architect Robert Dill to prepare plans for a two-story house with a basement, and Leontarakis entered into a written agreement with Dill, whereby Dill would act as both architect and general contractor for the construction project. Dill hired Colonial Oaks to perform the construction work, and he hired Preferred Construction, Inc. (Preferred) to do the masonry work, which included installation of the foundation, basement, and a concrete slab for the garage.
Preferred hired David Guatarz to excavate the foundation and basement of the new home. When Guatarz finished excavating sometime in early 1998, there was approximately an eighteen-foot difference in grade between the bottom of the excavation and the ground level of Spiegel's adjacent lot. At its closest point, the foundation of the new home was about eighteen feet from the parties' shared property line. Engineer Andrew Sharick, who performed an inspection on behalf of Spiegel's home insurance company, Great Northern, described the soil in the area of the parties' common property line as "silty and sandy with few large rocks." In addition, Spiegel's structural engineer, Peter D. Matera, testified that soil test results indicated the soil near the parties' common property line adjacent to the excavation site "was in a very loose state."
After the excavation work was completed on Leontarakis's property, some of the soil supporting Spiegel's brick privacy wall "slid down into the basement excavation." Preferred, in consultation with Dill, then attempted to protect Spiegel's brick privacy wall by installing "steel sheeting." Despite these efforts, sections of Spiegel's brick privacy wall collapsed onto Leontarakis's property.
At trial, Spiegel alleged that the excavation work, and resulting loss of lateral support, caused extensive damage to his brick privacy wall, home, in-ground swimming pool, pool patio, flagstone and concrete walkway, and front steps. The total cost to repair the damage to Spiegel's property was estimated to be $925,874 as of January 26, 1999, including the sum of $366,600 to replace Spiegel's brick privacy wall. Spiegel's damages expert, Theodore Maglione, testified that the wall cannot be repaired, but must be replaced entirely.
A jury trial took place on November 8, 10, 12, 15, 16, and 17, 2004, regarding Spiegel's claims against Leontarakis, Dill, Colonial Oaks, and Guatarz.*fn2 At the conclusion of Spiegel's case, the trial court, relying upon the independent ...