Beasley v. Pelmore

631 N.E.2d 749, 259 Ill. App. 3d 513, 197 Ill. Dec. 527, 1994 Ill. App. LEXIS 261
CourtAppellate Court of Illinois
DecidedMarch 3, 1994
DocketNo. 4-93-0517
StatusPublished
Cited by10 cases

This text of 631 N.E.2d 749 (Beasley v. Pelmore) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beasley v. Pelmore, 631 N.E.2d 749, 259 Ill. App. 3d 513, 197 Ill. Dec. 527, 1994 Ill. App. LEXIS 261 (Ill. Ct. App. 1994).

Opinion

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 plaintiffs 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 plaintiffs evidence, creating serious structural damage to at least a portion of the wall supporting plaintiffs 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 plaintiffs 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 plaintiffs 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 of wood 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.

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Bluebook (online)
631 N.E.2d 749, 259 Ill. App. 3d 513, 197 Ill. Dec. 527, 1994 Ill. App. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beasley-v-pelmore-illappct-1994.