Myers v. Arnold

403 N.E.2d 316 (1980)

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Nature of the Case

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Facts

P purchased land and began constructing a residence. A creek which ran through P's property created an erosion problem, and it was thought that broken concrete could be used to correct this problem. In the fall of 1974, P discovered that D was engaged in a road repair and construction project. P then made a deal with D to dump a couple of loads of concrete without rubble or dirt. They determined where the loads were to be dumped on the property. The day after, P's father informed her that quite a bit of concrete had been delivered. P discovered that the amount of concrete delivered far exceeded the amount desired. The concrete contained reinforcing rods, was stacked 8 feet high in some places, and covered an area approximately 50 X 150 feet. It had been placed where P intended to build a second house. P immediately contacted D, but they refused to remove the concrete. P sued D for damages. At trial, P's father testified he was with her when she made the deal to get the concrete and stated that she told D that two loads were what was wanted. The testimony of John Nord, who is self-employed in the refuse removal and demolition business set the costs for removing the concrete at $18,200. D presented evidence that P indicated that she wanted concrete from an area covering both sides of the road and at least several thousand feet long. When told that this was a large amount of material, P responded that she had a place for it. D denied that P had said she only wanted two loads. D saved about $490 by dumping the concrete on the land belonging to P. D then moved for a directed verdict, arguing that P had failed to present sufficient evidence on the issue of damages. The court asked for citations to authority on the issue of whether P had to show the diminution in market value as well as the cost of repair. D's motion was denied because the trial court concluded that the proper measure of damages was the cost of repair. An appraiser testified that on the date of trial the fair market value of P's property was $750 per acre. This value, however, was based only on the land and did not include P's house. The appraiser also testified that the fact that one-half acre of plaintiffs' property was covered with concrete would have no great effect on its value for resale purposes. The court therefore rejected D's tendered instruction which stated that the measure of damages was 'the lesser of the reasonable expense of necessary repairs to the property which was damaged or the difference between the fair market value of the property immediately before the occurrence plus [sic] its fair market value immediately after the occurrence.' P got the verdict for $12,000. D appealed: This far exceeds the diminution in the market value of the P's property.