Appeal from the Superior Court of the District of Columbia; Hon. Henry H. Kennedy, Jr., Trial Judge
Rogers, Chief Judge, Schwelb and Farrell, Associate Judges.
The opinion of the court was delivered by: Schwelb
This is an appeal by Paul N. Levy, Gale R. Levy and Franklin Park Liquor, Inc. (the Levys) from an order of the trial court setting aside a jury verdict in their favor in the amount of $400,000 and granting the motion of appellee Schnabel Foundation Company (Schnabel) for judgment notwithstanding the verdict. The Levys contend that the evidence that Schnabel negligently caused damage to their building was sufficient to support the jury's verdict. Although we view the case as a close one, and the proof of the standard of care as rather unorthodox, we agree with the Levys, reverse the judgment n.o.v. in Schnabel's favor, and remand for further proceedings.
THE TRIAL COURT PROCEEDINGS
The evidence at trial established that the Levys own and occupy a four-story building (the "Levy building") at 940 14th Street, N.W. in Washington, D.C. At the time when this controversy arose, Ambassador Associates (Ambassador) was developing property at 1400 K Street, N.W., adjacent to the Levy Building. Ambassador engaged Omni Construction Co. ("Omni") as its prime contractor to construct a twelve-story office building at the K Street site. Omni subcontracted with Schnabel to perform sheeting, shoring and underpinning to protect adjacent properties.
The 1400 K Street project required the excavation of a forty-foot hole for a three-level parking garage which was to be built below street level. The earth around the entire perimeter of the construction site had to be held back to protect the adjacent streets from caving in and to protect the adjoining buildings, including the Levy building, from moving. This earth retention process is known as "sheeting, shoring and underpinning." Sheeting and shoring supports the exposed sides of the excavation. Underpinning is the support and stabilization of adjacent buildings from below.
During the course of construction, the Levy building moved both vertically and laterally. Omni notified Schnabel that it had detected movement in the vicinity of the underpinning operation. In response, Schnabel installed tie rods in the basement of the Levy building to attempt to hold the building walls together. The Levy building "racked" (twisted), however, and cracks appeared in both the exterior and interior walls. The columns of the building moved, windows cracked, and doors would not close. There was testimony that movement continued to the time of trial.
As a result of these events, the Levys brought an action against Schnabel and several other defendants. *fn1 They alleged in their complaint that their building was damaged because Schnabel Foundation Company had negligently failed to design and build an adequate sheeting, shoring and underpinning system during the excavation of the adjoining property. Schnabel denied negligence and, in March 1989, the case came on for a jury trial in the Superior Court.
At trial, the Levys offered the testimony of Carl C. Hansen, who was qualified as an expert witness in the area of structural engineering. During the course of his testimony, Mr. Hansen reviewed a soils report prepared by Schnabel Engineering Associates (SEA), an engineering company, *fn2 which recommended a system of sheeting, shoring and underpinning for support of the Levy building which was materially different from the system which the defendant Schnabel Foundation Company actually used. It was Mr. Hansen's opinion that if Schnabel had used "bracket piles," as SEA had recommended, this would have provided insurance against the movement which damaged the Levys' property. Mr. Hansen stated that "specifically concerning the underpinning of the Levy building, I do not understand why ignored two of the main recommendations of ." He later added that this question "has never been satisfactorily answered to me."
Mr. Hansen also testified that the standard of care applicable to contractors engaged in sheeting, shoring and underpinning is "to take all the steps necessary to prevent any movement that's going to cause damage." *fn3 It was his opinion that Schnabel's failure to take the steps recommended by SEA caused the movement and damage to the Levy Building, and that Schnabel's work fell below the standard of care in the industry.
Schnabel's construction manager on the 1400 K Street project, Phillip K. DiPirro, was qualified as an expert witness in the area of sheeting, shoring and underpinning. He testified on behalf of Schnabel. *fn4 On cross-examination, Mr. DiPirro was questioned regarding two sections of the District of Columbia Building Code on which the Levys rely to support their claims of negligence. These two provisions read in pertinent part as follows:
All excavations shall be protected by sheet piling or adequate shores in accordance with the requirements of the Minimum Wage and Industrial Safety Board's Construction Safety Standards, effective on or after August 1, 1968, so that the sides shall not cave in and ...