FREDERICKA HOMBERG WICKER, Judge.
Defendants, Ted and Julie Johnson, appeal the trial court's judgment awarding plaintiff, Juanita Cheramie, $6,756.00 for property damages resulting from the construction of the Johnsons' camp built adjacent to plaintiff's property. The trial court entered judgment against the Johnsons and dismissed their contractor, David Gaspard. We find the record supports the trial court's conclusion that Gaspard relied on the Johnsons' misrepresentation of the property line during construction, which resulted in the unintentional damage to plaintiff's property, and affirm the trial court's judgment.
Defendants, Ted and Julie Johnson, hired defendant-contractor Gaspard to construct a camp in Grande Isle on Lot 9, Square C, Sexton Subdivision ("the property") on September 23, 2009. Plaintiff owns the adjacent property, Lots 10 and 11, in the same subdivision in Grande Isle.
Prior to construction, the Johnsons failed to obtain a recent survey or stake the property to mark its boundaries. Rather, the Johnsons pointed Gaspard to where they believed the property line to be — even with a culvert. Based on the Johnsons' representation of the property boundaries, Gaspard began construction.
Plaintiff testified that on October 9, 2009, she noticed Gaspard with a tripod and poles working approximately 75 feet onto her side of the property line. Gaspard used his cell phone to contact Mr. Johnson and inform him of plaintiff's complaints.
As a result of Gaspard performing work on her side of the property line, plaintiff sustained damages. Plaintiff filed suit on April 21, 2010, against the Johnsons and Gaspard, alleging that: (1) large ruts had been dug into her property causing the need for replacement dirt and sand to re-level her property; (2) her sewer system or cesspool had been completely demolished; and (3) she incurred the cost of a land survey to identify the accurate property boundaries and show that Gaspard performed work on her side of the property.
On appeal, defendants claim that plaintiff failed to prove that they caused the alleged property damages. Defendants assert that Gaspard, as an independent contractor, and/or his subcontractors, caused the resulting damages to plaintiff's property and that defendants cannot be held liable for Gaspard's actions.
As a general rule, a principal is not liable for the negligence of an independent contractor while performing his contractual duties. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972). Two exceptions to this general rule exist: (1) where the work is ultra hazardous
At trial, the parties presented substantial evidence and testimony to prove that the Johnsons supervised or controlled Gaspard's work in constructing the camp as it relates to the location or property on which the Johnsons instructed him to build. The trial judge remarked that the building contract did not contain a municipal address or property description and that Gaspard relied solely on the Johnsons' instructions as to the location of construction. Because the pivotal issue in this case turns on where Gaspard performed his work, we find that the Johnsons supervised and controlled that aspect of Gaspard's work, i.e., the location of the construction; therefore, we find the Johnsons can be held liable for Gaspard's actions if plaintiff successfully proved that Gaspard's actions caused plaintiff's damages in accordance with La. C.C. art. 2315.
In this appeal, defendants challenge plaintiff's claim for damages, asserting that the repairs made were unnecessary or not caused by the construction at issue. We discuss each item of damages separately:
At trial, the parties introduced into evidence photographs of plaintiff's property. These photographs reflect large ruts on plaintiff's land, where water accumulated when it rained. Plaintiff testified that those ruts were not present prior to the Johnsons' construction. Gaspard further confirmed that either he, his employees, or others that he hired, "tore up" plaintiff's grass with large machinery and caused ruts on her property. Gaspard again testified that he was unaware at that time that he had been working on plaintiff's side of the property line.
Plaintiff produced the testimony of David Michel, owner of Michel Construction, LLC. Mr. Michel testified that plaintiff hired him following Hurricane Katrina to spread dirt and raise her property to a level 18 inches high. Mr. Michel testified that, in late 2009, plaintiff again hired him to spread additional dirt and sand to re-level the property following construction on the adjacent property. Plaintiff introduced into evidence an invoice from Mr. Michel, reflecting that she paid him $3,181.00 to purchase and spread dirt and sand on her property in December of 2009.
Based on the evidence and testimony presented, which clearly reflects that plaintiff sustained ruts on her land due to the Johnsons' misrepresentations to Gaspard of the property line, we find plaintiff satisfactorily proved damages for the loads of dirt and sand necessary to re-level her property to the same height as prior to the Johnsons' construction project.
The evidence at trial reflects that, during construction, Gaspard demolished and covered up a cesspool or sewerage
Plaintiff testified that the cesspool was still in good working condition and that family members and other visitors would occasionally come to her property for the weekend to visit and would hook up campers to the cesspool. Plaintiff testified that she did not intend to demolish the cesspool and did in fact use it occasionally. Plaintiff presented an invoice from LeBlanc Sewerage and Plumbing in the amount of $3,000.00 that she paid to have a new sewer treatment plant installed. She testified that, following Hurricane Katrina, the Grade Isle building codes no longer permit the installation of cesspools and only permit the installation of a sewer treatment plant.
Based upon the testimony and evidence indicating that Gaspard demolished plaintiff's cesspool pursuant to the Johnsons' instructions during construction, we find no error in the trial court's judgment awarding plaintiff damages for the installation of a new sewer treatment plant on her property.
Plaintiff hired Mr. Charles McDonald, a land surveyor, to perform a survey of her property and to stake or mark the property boundaries to prove that Gaspard had in fact been working on her side of the property line. Mr. McDonald testified that he performed a land survey of plaintiff's property, which revealed that the property line was in fact not even with the culvert as represented by the Johnsons.
Defendants complain that plaintiff's survey was unnecessary because prior to plaintiff hiring Mr. McDonald, he had in fact already performed a survey and staked or marked the property line for the Johnsons. Therefore, defendants argue that plaintiff unnecessarily incurred the $575.00 cost for the survey of her property.
The Johnsons introduced the land survey into evidence, which indicates that Mr. McDonald conducted a survey on September 20, 2009, prior to the alleged date of trespass or beginning of construction. However, Gaspard, the Johnsons, and plaintiff all testified that the property had not been staked or marked off in October of 2009 when construction began. Further, Mr. McDonald could not testify as to the date on which the survey was contracted or performed with certainty, thus leaving the possibility of a typographical or office error.
The trial judge clearly accepted the overwhelming testimony that the property had not been staked or marked prior to the beginning of construction. On appellate review, the reviewing court may not set aside the factfinder's findings of fact in the absence of manifest error or unless they are clearly wrong. Johnson v. State Farm Mut. Auto. Ins. Co., 95-1027 (La.App. 5 Cir. 5/15/96), 675 So.2d 1161, 1162-63. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether his conclusion was a reasonable one. Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id.
Based upon the overwhelming testimony that the property had not yet been staked or marked off in October of 2009, the trial court found plaintiff's decision to hire Mr. McDonald to perform a survey of her property appropriate under the circumstances.
Defendants further assign as error the trial court's allocation of fault, claiming that the trial court erred in not assigning a particular percentage of fault to Gaspard or Mr. and Mrs. Johnson individually pursuant to La. C.C.P. art.1917.
Defendants further assign as error the trial court's denial of its motion for summary judgment prior to trial. Because we find plaintiff presented sufficient evidence to prevail at trial, we find the trial court did not err in denying defendants' motion for summary judgment.
Accordingly, for the reasons provided herein, the judgment of the trial court is affirmed.
La. C.C.P. art. 1812(C) provides: