Maltzahn v. Roch

427 So. 2d 586, 1983 La. App. LEXIS 7948
CourtLouisiana Court of Appeal
DecidedFebruary 7, 1983
DocketNo. 5-372
StatusPublished
Cited by2 cases

This text of 427 So. 2d 586 (Maltzahn v. Roch) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maltzahn v. Roch, 427 So. 2d 586, 1983 La. App. LEXIS 7948 (La. Ct. App. 1983).

Opinion

GRISBAUM, Judge.

Plaintiffs, Pamela and Eddie Maltzahn, appeal a dismissal of their suit against Bruce Roch, a building contractor, and Du-rock, Inc., a concrete supplier, and its insurer, United States Fidelity & Guaranty Company, for an alleged defective garage slab. We reverse in part and affirm in part.

The issues presented are as follows:

(1) Whether the garage slab was defective?

(2) Whether the building contractor is liable to plaintiffs under La.C.C. art. 2762 and 2769?

(3) Whether the concrete supplier is liable to plaintiffs under the redhibition or quanti minoris articles, La. Civil Code articles 2520 et seq.?

(4) What damages, if any, are the plaintiffs entitled to if a defective condition is found?

Plaintiffs entered into a written contract with defendant Bruce Roch, a contractor, to construct a residence in Metairie, Louisiana which required the laying of a concrete slab with a minimum of 2500 p.s.i. strength. Subsequent to the written contract, Roch agreed to lay a concrete slab for a proposed garage while the foundation slab on the house was being poured. In this oral agreement there were no specific statements made as to the appropriate p.s.i. strength of this garage slab. Roch contracted with Du-roek, Inc., a contract supplier, to provide concrete with 2500 p.s.i. Both slabs were poured on September 9, 1978.

Approximately five or six months later while construction of the Maltzahn home continued, plaintiffs notified Roch that the garage slab was crumbling. Roch inspected the slab; however, nothing further was done until September of 1979 when plaintiff hired a consulting engineer to test the slab. The test of the slab indicated that the right portion and parts of the perimeter of the slab were approximately 1100 p.s.i. or less. Plaintiffs notified the contractor of this condition, and the contractor likewise notified the supplier of the concrete. The concrete supplier sent an expert to test the slab who found that the ledge was less than 2500 p.s.i. He recommended that this condition be corrected by a two-part component epoxy grout applied to the periphery areas and a portion of the right side of the slab.

In negotiations among the parties for the correction of the problem, the concrete supplier declined responsibility for supplying concrete at less than 2500 p.s.i. The contractor testified that he offered to make certain corrective work consisting of pouring an additional four inches of concrete on top of the existing garage slab, “capping the slab.” The purpose of this corrective work was to provide increased load bearing strength and to increase the height of the slab for flood protection.

The contractor’s arrangements were found to be unacceptable to plaintiffs, and plaintiffs filed suit June 6, 1980 seeking to have the slab removed and completely replaced by a new slab. They also claimed damages for mental anguish, inconvenience, [588]*588and attorneys fees. Roch answered plaintiffs’ suit and reconventionally demanded the remaining amount due on the contract price, $230.12. Roch further filed a third-party demand against Durock, Inc. and USF & G alleging if the slab was found to be defective, the defective concrete slab was the result of defective concrete supplied by Durock, Inc. Defendants, Durock, Inc. and USF & G, also answered plaintiffs’ suit and filed a third-party demand against Bruce Roch claiming if the slab was defective, the defects were the result of negligence on the part of the contractor, Roch, and his employees.

CONDITION OF THE CONCRETE SLAB

In order for the plaintiffs to recover against the contractor and/or the concrete supplier, it is first necessary that a defective condition be shown by a preponderance of the evidence. At trial, plaintiffs and defendant concrete supplier presented expert testimony as to the condition of the concrete slab. Both experts, as well as the contractor himself, testified as to the existence of a substandard “condition” near the perimeter of the slab.

Plaintiffs’ expert stated the perimeter lacked the 2500 p.s.i. compressive strength expected for a residential type structure. He found the perimeter to have the concrete compressive strength of 1100 p.s.i. More specifically, he found the peripheral area on the right and left sides as well as the rear periphery with less compressive strength than the center of the slab. This 1100 p.s.i. he noted was below FHA and VA standards. He opined those particular areas were below the recommended p.s.i. due to the presence of excessive water in the concrete which weakens concrete. When questioned as to whether 1100 p.s.i. was adequate to support a one or two story structure safely, he stated that he would not recommend this strength and further stated that it would be questionable as to whether it would perform satisfactorily.

Durock’s expert similarly found the ledge between 1100 to 1600 p.s.i. It was his opinion that the concrete on the right side of the slab was “rather fluid” meaning that the concrete contained additional water. He further explained that this area had not been properly compacted because it had valleys, lagoons, and summits underneath where a two by six had laid to form the ledge.

Finally, the defendant contractor admits ted at trial that there was “bad concrete” (“underweight” concrete) on the right side of the slab. He admitted that the garage slab “didn’t finish correctly” on the right side. He stated, “It looked to be sandy.” When questioned by the judge as to whether the mix was not proper, he responded, “That’s what I would assume.” On cross-examination, the concrete supplier’s counsel questioned Roch in the following manner: “And it’s your testimony that even though you believed that there was something the matter with this cement and could notice it several hours afterwards, you never brought this to the attention of the people at Durock, Inc. or mentioned that there may be some problem with the concrete they delivered?” Roch answered, “No, I didn’t. I didn’t bring it to their attention until he (Mr. Maltzahn) had the problem, and then their (Durock’s) first reaction is always, it’s not the concrete.”

There was, therefore, undisputed testimony that the perimeters of the concrete slab were “underweight.” Both experts and the contractor stated that with repair the slab could withstand a one or two story building. Importantly, when questioned as to the sufficiency of what was characterized as Du-rock’s expert suggested “cosmetic” repair, defendants’ expert responded that his suggested repair, namely a two-part component of epoxy grout and concrete patching, was not a mere “cosmetic” repair but rather a “structural” repair. We, therefore, conclude that the plaintiffs have shown by a preponderance of the evidence that a defective condition was present in the concrete slab.

BUILDER’S LIABILITY

The appropriate law governing the rights and responsibilities between plaintiffs and the defendant building con[589]*589tractor is set forth in our Civil Code, Book III, Title IX, Section 3, entitled “Of Constructing Buildings According to Plots, and Other Works by the Job, and of Furnishing Materials” and more specifically, arts. 2762 and 2769. See, Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (La.1967); Manzanares v. American International Forest, 389 So.2d 1142, 1147 (La.App. 3d Cir.1980); Martin v. AAA Brick Co., Inc., 386 So.2d 987, 990-91 (La.App. 3d Cir.1980).

La.C.C. art. 2762 provides:

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Bluebook (online)
427 So. 2d 586, 1983 La. App. LEXIS 7948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maltzahn-v-roch-lactapp-1983.