Davies v. City of Calgary, 2010 ABQB 813

Court of Queen ’ s Bench of Alberta Citation: Davies v. City of Calgary, 2010 ABQB 813 Date: 20101217 Docket: 0801 09160 Registry: Calgary Between: Deirdre Davis Plaintiff - and - City of Calgary Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.F.

McMahon _______________________________________________________ Introduction [ 1 ] The Plaintiff homeowner sues the Defendant City of Calgary in negligence for damage to her property resulting from certain excavation work performed by the City. I find the Plaintiff entitled to damages.

Facts [ 2 ] The Plaintiff sues the Defendant City of Calgary (“the City”) in negligence. On or about January 29, 2007, the City’s work crews began excavation for sewer line upgrades in the alleyway behind the residential property owned by the Plaintiff at [...] - 60th Street S.E., Calgary. The Plaintiff had owned that home since 1994. The single family bungalow had been built in 1973.

A double two- car heated and detached garage had been built off the alley in 1984. [ 3 ] In an Agreed Statement of Facts, the City admitted that its excavation was “directly behind the garage on the property.” The hole was acknowledged to be approximately “3.5 metres deep, 2 metres across and 3.5 metres long”. That work began about February 28, 2007. The hole was filled by the City on or about March 14, 2007. [ 4 ] The City also admitted that “there were bad ground conditions and that trench sides were not holding up and were caving in”.

The Plaintiff had been considering selling her property before the excavation began. It was in fact sold in August 2007 for $300,000. The City admitted that it repaired damage to the property after the Plaintiff had sold it: The Defendant mud-jacked and raised the south-east corner of the garage. The repair bill was in the amount of $800.00. [ 5 ] The Plaintiff testified that in March 2007, after the excavation had been done, she had a conversation with someone she described as a city foreman and whom she named.

He told her they were leaving the excavation open for the weekend and the Plaintiff was to leave a waterline open so that the exposed line would not freeze. It was her evidence that she expressed concern about the soil under the garage giving way. She said the City employee told her that they were not permitted to work overtime so nothing more could be done. She quoted him as saying “Yes, we’re concerned too but unfortunately though under normal circumstances we’d never leave the hole exposed this long, we’re under zero overtime policy right now...”.

The City did not call this employee nor offer any explanation for not doing so. When the City crew returned the following Monday, subsidence had occurred and cracks appeared in the garage floor and walls. The weather had warmed over the weekend. Part of the floor had heaved. Water had seeped into the garage. [ 6 ] A series of photographs taken that weekend were entered into evidence. They showed the excavation abutting right against a concrete apron which was an extension of the garage floor. A gap of several inches is apparent under the concrete floor pad. Part of the concrete has fallen away.

The walls of the excavation have no bracing or support of any kind. [ 7 ] Other photographs show significant cracks in the concrete floor running to or from the edge of the excavation. A wooden garbage bin has collapsed. Other photographs showed damage to the interior of the house which the Plaintiff says did not pre-exist the excavation. However, in respect of this damage, the evidence does not establish that it can be attributed to the City’s work. The Plaintiff says it was caused by vibrations presumably during the backfilling process but that is speculation at best.

The same is true of some minor exterior house damage of which the Plaintiff complains. [ 8 ] The garage damage was not repaired by the Plaintiff before the property was sold. [ 9 ] The Plaintiff obtained a repair estimate from BMT Res. Services Inc. The principal of that firm, Sean Somers, testified that he would charge $21,810.00 plus GST to remove and replace the garage floor and the wall curbs. He described the cracks he saw in the garage floor and curbs. He observed them to be new and not filled with old dirt or grease. He saw fresh water that had seeped into the garage.

I do not take any of this evidence to be opinion evidence requiring a qualified expert. Mr. Somers also gave evidence of interior and exterior house damage which he observed. However, the Plaintiff did not qualify him to give expert evidence as to its cause. The Plaintiff’s final witness was Jane Kulyk who was qualified as an expert in real estate evaluations and appraisals. She appraised the property in question at $320,000 as at August 13, 2007. The appraiser assumed that the house was standard for the area and was undamaged.

She was not permitted by the new owner to view the interior of the house or the garage. [ 10 ] Much time was spent on cross-examination in questioning the validity of this opinion. The Plaintiff argues that because the house sold in August 2007 for $300,000, this appraisal somehow reflects damages of $20,000 from the City’s work. There is, however, no proven cause and effect. There are many reasons why the property may have sold for less than its appraised value. The property was listed at $319,900 at first.

Within three weeks, the price was reduced by $10,000 and then sold for $300,000 within one week thereafter.

I have no evidence that the condition of the garage had any influence on the buyer or the buyer’s price. As a means of assessing damages, if any, this appraisal in the context of the sparsity of the other evidence, is of no value. [ 11 ] At the close of the Plaintiff’s case, the Defendant applied under Rule 8.20 to dismiss the action. That application was dismissed. The Defendant then elected to call no evidence. [ 12 ] From examinations for discovery read in at trial, the Plaintiff obtained these admissions: Q I’ll move forward to March 22, 2007. The comment there says “still caving in big time”.

Can you enlighten me as to what big time would mean? A I can’t quantify it, no. It just means the job has gone bad, and that the trench sides aren’t holding up, and they keep caving in. Q Typically what’s done or is there a policy in place that addresses how to keep trenches from caving in. A No. There’s nothing. We put trench cages in ditches to maintain safety for our employees that are working in the ditch, but there is nothing you can do to stop ditches from caving in. [ 13 ] As part of the Plaintiff’s case, this read-in is partly helpful.

It amounts to an admission as to what happened and an obvious explanation for the condition of the garage floor as reflected in the photographs. It is an admission that the cave-in was foreseeable. [ 14 ] Notwithstanding the City employee’s assertion that nothing can be done to stop ditches from caving in, the photographs provide a reasonable inference that shoring or framing along excavation walls could have reduced or prevented the cave-in just as it would have assured the safety of workers in the trench.

The failure to take that step whether for cost or time reasons may be a valid business decision by the City, but having assumed the risk that damage to the Plaintiff’s property could foreseeably result, the Defendant is liable for the resulting damage. [ 15 ] As to the measure of damages, the only evidence I have is the repair estimate from BMT. If that work were performed, it would result in the Plaintiff’s garage having a new concrete floor and curbs. The estimate is not broken down into its constituent parts for the garage work. The garage was 23 years old in 2007.

I have no evidence of the condition it was in before the excavation began, nor do I have any evidence whether it could be repaired without being replaced. [ 16 ] It is well-established law that difficulty in assessing damages does not preclude the recovery of damages. In many cases the cost of repair is a proper measure of the damage but here the Plaintiff sold the property without repairing the garage floor. In some cases where property has been sold, the measure of damage is the diminished value.

However, for the reasons stated earlier, the evidence of the reduced sale price cannot be causally linked to the damage to the garage floor. The only evidence as to the repair cost is that of BMT at $21,810. The Defendant called no evidence to challenge that number. A new floor and curbs would be a significant betterment to the Plaintiff. I fix the betterment at 50%. [ 17 ] In the result, I assess the Plaintiff’s damages at $10,905. Conclusion [ 18 ] The Plaintiff will have judgment in the sum of $10,905 plus pre-judgment interest on that amount.

In the absence of any impact pursuant to Rule 4.29, the Plaintiff is entitled to her costs throughout and on the appropriate column.

Heard on the 6 th and 7 th day of December, 2010. Dated at the City of Calgary, Alberta this 17 th day of December, 2010. T.F. McMahon J.C.Q.B.A. Appearances: Roderick E. Onoferychuk Shea Nerland Calnan LLP for the Plaintiff Christie J. Breckon Douglas D. Merchant City of Calgary Law Department for the Defendant