406 N.E.2d 378 (Ind. Ct. App. 1980)
In 1965 Chris Janota purchased the house and lot at 1522 Johnson Avenue in Anderson, Indiana, together with an adjoining house and lot, for $19,900.1 He resided in the Johnson Avenue house from 1965 until 1968, when he moved to California, and returned to Indiana in 1971.2
Audie Spall held record title from 1956 until 1977 to the lot at 1525 Miller Avenue immediately east of Janota's property.3 The land slopes downward from Janota's lot to Spall's lot.4 Spall did not live on the Miller Avenue lot; it was occupied by her son Robert Whitson and his wife Elsie.5 The Whitsons had lived in a mobile home on the Spall lot since 1956.6
In 1971 the Whitsons purchased a larger mobile home and caused an excavation to be made into the hillside on the Spall lot approximately 35 to 40 feet in width and 12 feet in depth.7 The excavation was performed by persons employed by the Whitsons.8 Spall conveyed the lot to the Whitsons in October 1977.9 There is a 12-foot platted but unimproved alley between the rear of the Spall lot and the rear of Janota's lot.10
After the excavation Janota noticed cracks appearing in his house that became worse and caused substantial damage.11 Janota testified there were no cracks when he left for California in 1968.12 An expert witness attributed the cracks and damage to slope failure resulting from the cut on the Spall property.13
Janota testified that in his opinion the value of his house if undamaged would be $35,000.14 No evidence was presented of the house's value in its damaged condition or of the cost of restoration.15 An expert produced by Janota testified that a retaining wall at the excavation site might cost $10,000 and that shoring the foundations would cost less.16
The only evidence of any authorization, consent, or knowledge on Spall's part was her answer to an interrogatory stating she had such knowledge after completion.17 Janota's claim against the Whitsons remained pending and was not tried.18 The Superior Court of Madison County, Division I, entered a $35,000 judgment against Spall, from which she appealed.19
Whether the trial court's decision is supported by sufficient evidence?20
Liability for damage to buildings from loss of lateral support requires proof of negligence by the adjoining landowner rather than absolute liability.21 Negligence is measured by the standard of ordinary care under the circumstances, including considerations of foreseeability, notice, and customary excavation methods.22
No. The record reveals that the Whitsons independently decided to excavate the hillside to accommodate their new mobile home and hired the workers who performed the digging.23 No proof exists that the excavation technique was improper or that Spall participated in planning or executing it.24 Given the twelve-foot alley separating the properties, any risk to Janota's house was not obviously foreseeable.25 Spall's post-completion knowledge, as stated in her interrogatory answer, does not demonstrate that she could have or should have taken preventive action.26
Consequently, the evidence fails to establish the negligence or proximate cause necessary for liability.27
The trial court's decision is not supported by sufficient evidence.28
Whether the trial court's decision was contrary to law in that it was based upon a standard of absolute liability?29
Yes. Because the damage occurred to a building rather than to land in its natural condition, the absolute liability rule does not apply.32 The court therefore could not properly impose liability without a finding of negligence on Spall's part.33 Since the evidence also fails to show any negligent conduct, the judgment cannot stand on either theory and is contrary to law.34
The trial court's decision was contrary to law to the extent it was based upon a standard of absolute liability.35
Whether the amount of recovery was excessive?36
The measure of damages for injury to a building caused by negligent withdrawal of lateral support is the lesser of the diminution in value or the cost of restoration.37
Yes. Although Janota provided his opinion that the house would be worth $35,000 if undamaged, the record contains no valuation of the property in its actual damaged state.38 Likewise, no evidence was introduced concerning the expense of repairing the house to its former condition.39 Without these figures, the trial court lacked any basis for determining the proper measure of damages under the rule requiring the lesser of diminution in value or cost of restoration.
The amount of recovery was improper because the record lacked the evidence required to calculate damages correctly.40