# FILED January 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE, WE STERN SECTION AT JACKSON

_______________________________________________________ ) ROBERT J. McCURLEY, ) Madison County Circuit Court PATRICIA G. Mc

CURLEY , ) No. C93-245 ) Plaintiffs/Appelle

es. )

) VS. ) C.A. No. 02A01-9703-CV-00059 ) CITY OF JACKSON,

TENNESSEE; ) CHARLES FARMER, M ayor for the ) City of Jackson, Tennes see; and J. B. ) GLASSMAN and wife, BRENDA ) GLASSMAN , ) ) Defendants. ) ) And ) ) HAROLD ANGUS, ) ) Defendant/Appe

llant. )

______________________________________________________________________________ From the Circuit Court of Madison County at Jackson. Honorable Whit Lafon, Judge
Phillip L. Davidson,

Nashville, Tennessee Attorney fo

r Defendant/App

ellant Harold Ang

us. Jesse H. Ford, III

, Jackson, Tennessee John Van den Bosch, Jr. , Jackson, Tennessee Attorney fo

r Plaintiffs/Appe

llees.

OPINION FIL

ED: REVERSED AND REMAN DED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)1 The McCurleys originally filed suit ag ainst the City of Jackson, Tennessee, Charles Farmer, city mayor, a

nd J. B. and Brenda Glassman also. The action as to these defendants wasdismissed on motions for summary judgment. Various other cross-claims and countercomplaints were f

iled by the r

espective defe

ndants which have

now either been d

ismissed with prejudice or voluntarily non-suited.

2 This was the only issue confronting the jury. The parties stipulated to damages at the beginning of trial in the amount of $485,000, should liability be determined.

This is an action in neg

ligence arisin

g out of th

e Jun e 1993 acts of the

appellant, Harold Angus, in de molishin g the “Glassm an” buildi ng, located at 111 North Highland A venue in Jackson, pursuant to a contract with the city. Angus’ demolition of the building, which had been declared condemned by the city code, is no t disputed. Nor is it disputed that, as a result of the building’s demolition, damage was sustained to the building located adjacent thereto, identified as the “Carmen’s” building, and owned by the appellees, Robert J. McCurley and wife, Patricia G. McC url ey. 1 The two buildings s hared a common “

party wall.” At issue in th

is case is whether Angus
was negligent in its

demolition of

the Glassman building so as to be held legally accountable to the McC url eys for the damages they sustained. The case proceeded to a trial by jury where, at the cl

ose of all proof, the trial court

dir ect ed a v erdi ct i n fav or o f th e app ell ees o n th e is sue of l iab ili ty. 2 Angus has appealed challenging the correctness of the trial judge’s decision in this regard. For the reasons hereinafter sta

ted, we reverse

and remand for a

new trial.
The following evidence was presented: Robert McCurley operated

the business of “Carmen’s,” a clothing store, from 197 7 t o 1995. The building contained 12,000 square feet and covered three floors. In 1993, prior to the Glassman demolition, McCurley beca me concerned about the safety of hi s buildin g. He testified that both Angus and the city building

inspector, Mr. Hic

ks, informedhim that the demolition would not affect his building, with Hicks commenting to him that he had “a saf

e building and not

to worry about it, . . . .” McCurley observed A ngus demolish the Glassman building with

“bulldozers . . . and pull [it] down.” This resulted in the north wall and roof of Carmen’s being torn away. Although McCurley is not an “expert in demolition,” he believes that there was “something wrong with using a bulldozer to take down a wall, . . . .”

The court questio

ned McCurley

as follows:

TH E COURT: . . . In this process, was your - - was y ourwall d amag ed? MR. MCCURLEY: Ye

s. THE COURT: . . . Who did t he damage to y

our wall? MR. MCCURLEY: Mr. Angus did. THE COURT: Any

body except h

is employee

s and him? MR. MCCURLEY: Tha

t’s all.
Lynn Hicks, the director of the City Building and Housing Codes Department at the time, explained that

the Carmen and Glassman buildings were built property line to property line and shared a party wall, “a common wall between the two buildings at the pr operty line.” He testified that he was concerned with the possible effect the demolition might haveon the adjacent ( Carmen’s) building. He discussed the “method” of demol ition with Angus, c

onsidering the p

arty wall between the two buildings, and

his concern that they might come down in a “domino effect”

or create “some kind of uncontrolled collapse.” Angus expressed the same concerns.

Hicks b elieved it was Angus’s “intention” to tear the Glassman down “piece-b y piece” or “joist-by joist” as opposed to demolishing it all at once. Hicks tes tif ied tha t “i nit ial ly” Angus took the building d own “stick by

stick,” beginnin

g with the roof. The second floor, however,
came down “in one piece.” He stated that Angus informed h

im that a dozer was attach

ed to the north wallwhich was pulled d

own resulting in th

e collapse of the second floor. Hicks does not consider Angus’ method of demolition “acceptable.”

On cross-examination, Hicks said that properly Angus should have taken the joist on the second floor

apart piece-by

-piece. Hicks sta

ted that no one, not

even Angus,

knew for certa

in exactly how the two buildings were attached until they started coming apart. He further testified:
Q. At the time that he was demolishing the building, he did not know that what h e was doing wou ld cause any damages to the McCurleys, did he? A. He was aware, and I was aware, that there would have to be somework done to that wall on the second floor. And the reason for that is we both recog

nized that tha t was an interior wall. And once we moved the Glassman Building, he w as bas ically left with a structure as a second floor wall that was an interior wall. So, he wasawarethat it would take some weatherproofing to make the building safe.

. . . . A.
. . . . it was not the inte ntion to take the wa

ll down. It was a wallthat was shared b

y both building

s. It was o

n the p roperty line. It was a wood wall that set on a masonry wall that’s ri ght on t he property line between the Glassman Building and C armen’s. And that wall should not have come out. . . . Q. Andit’s your testimony tod ay that M r. Angus knew that by pulling that wall down, that this part of the [Glassman] Building that was connected to the

McCurley bu

ilding would pull

part of his

wall

-- the McCurley building

wall out; isthat what you’re saying, that he knew when he did that it was going to happen? A. I don’t think he

knew it. Q. And you didn’t either, did you? A. No, sir.

. . . . Q. Did

you ever express any conce rns to Mr. Angus during the . . . destru ction of th is buildi ng if he was do ing anything wro ng? A. No, sir.

Hicks acknowledged that, if the building was an unsafe structur

e, then taking it a

part in the manner suggested (piece-by-piece) would have placed Angus and his crew in “some degree” of dang er.

Emison Hockett testified that he is in

t he construction bu

siness and familia

r with demolition work involving pa rty walls. Hockett stated that he had, prior to the demolition, examined the Glassman and Carmen buildings and was aware of a common “party” wall. He explained that many of these type b

uildings, built 75 to

100 years ago, share party walls and “come up with a brick wall. . . from the basement area all the way up.” From two stories up, there is wood framing on top of the brick and then a roof. He continued, “ if you don’ t go in and examine the buildings, [you think] that you’ve got a whole complete brick wall. But in those old buildings, . . . they allowed themto put wood on top of the bricks so far down. So, if you don’t go in and examine them . . . you could get into a lot of problems.”

Withregard to the ty

pe of constructio

n of the two buildings in questi on, Hockett statedthat proper

demoliti on usually inv olves cons tructing a block wall along side the fragile (brick)wallall the way u p to the wood. The pr

oper means, acc

ording to Hocke

tt, would be to “[t]ea

r it down brick-by-brick by hand a nd build that party wall . . . Most cities that I work for, they demand that you do that. T

hey make codes for it.” Hockett testified that the destruction of the Carmen building was caused by

Angus’ method of demolition, which he believes unacceptable, considering the party wall. Hockett declar ed that he would

have taken the building down piece-by-piece eve n if the structure was unstable.

Glenn Mutters, an engineer, testified that “[t]he demolition of the party wa l l was caused by the cantilever

action of knocking out an adjacent wall.” The floor and ceiling joists were embedded

below the party

wall, in the masonry wall. When the adjacent wall was demolished, the joists dropped down and the cantilever action “pried the upper wall out of

the Carmen’s Building.” Mutters, too, believed the method of demolition utilized by Angus improper. The proper procedure would have been to

utilize a chain saw to cut

the floor joists and separate the entire floor system of the Carmen’s Building. If this method had been employed, Mutters believes the “collateral damage” to Carmen’s could have been avoided. On cross-examination, Mutters stated that the actual method of demolition employed by

Angus was not at f

ault, but the fact that the joist system was not first cut free from the pa

rty wall. Th

e latter create

d the damage to Ca

rmen’s.
Angus testified that he has been in the demolition business for 25 to 30 years. He statedthat the buildings

were connecte

d by the same

roof and they

“had to cut the top.” He described the Glassman Buil

ding as u nsa fe and that the wall was already about to fall. He stated, “[w]e couldn’t work on it.” He informed McCurley and Hicks of the wall’s condition. Angus stated that there was no other way to take the wall down and that

some of the other m

eans suggeste

d would notwork because of the building’s instability and his crew’s inability to be there safely. Angus statedthat he informed McCurley prior to the demolition that partof his top wall was g oing to come out and that McCurle

y was “wor

ried” about who w

ould be responsible

for repairing

it.
Angus further testified:
Q.
. . . But [McCurley ] was fully wa

rned that this

would happen because of the condition of [Glassman] and because o f the r oof conn ected
. . . and the brick wa ll didn’t go up and

this was the onlyway y ou could do it? A. That’s the only way. . . . Q. It was because of the way this building wa s constructed? A. Yes, sir.

On cross-examination, Angus stated that he brought the building down, “the best way
we [could].” He took into consideration the

safety of his crew. Angus admitted th at he did not build
a support c oncrete b lock wall as Hocket

t sugges ted beca use of fin ancial co ncerns, b ut stated, “[w]e didn’tcontrac t that[]” and that he had not contracted “to put . . . more walls in.” Angus further explained that he did n ot first s eparate the second floors of the two buildings because “[i]t had already [fallen] . . . where the wall [had] pulled out” before he even began any

demolition work. Angus remarked that once past the brick wall, there is no party wall and the building shared “the
samewall.” Thus, taking the wall down would necessarily involve taking the Carmen’s wall down too. Angus states that McCurley was aware of this prior to demolition and was also made a ware that the piece-by-piece method would not work because of the instability

of the building. Angus clarified that he did not damage the

brick part of the

party wall a

nd the wall

abo ve t hat was “ju st a [tw o-b yfour] run . . . over on [Glassman’s building]. That’s why it had to come out.”

In ruling from the bench, the court indicated that the proof had not shown that anyone other than Angus “did

this damage.” It was Angus’ position,however, th at merely causi ng damage does no t necessarily equate to negligence a nd legal liability. The court proceeded to find Angus negligent a s a matter of law and directed a verdict in Appellees’ favor. I n accordance with the parties’ stipulat

ion, the judgment a

warded $485,000 t

o the McCurley

s.

The sole issue on appeal is whether the trial court erred in directing a verdict in favor of the appellees. When decid ing a directed verdic t motion, both the tria

l court and this Cour

t must look to all the evidence, take the strongest legitimate view of the evidence in favor of the motion’s opponent, all ow a ll r easo nab le i nfer ence s in favo r oftha t pa rty a nd disca rd all countervailing evide nce. If there is then any di spute as to any

material fact, o

r any doubt a

s to the conclusions

to be drawn from the whole evidence, the motion must be denied. Hurley v. Tennesse e Farmers Mut. Ins. Co. , 922 S.W.2d 887, 891 (Tenn. App. 1995).The record clearly indicates controverted testimony on the issue of whether Angus
was negligent in c

ausing damage

to the McCurley

s’ building due to

his method of demolition of the Glassman building. Clearly, the re is evidence to

suggest that a

lternative method

s were available

to avert the damage to Ca

rmen’s, if the tes

timonies of the wi tnesses testifying on behalf of the McCurley’sare considered credible. However, if Angus’ testimony is to be believed then no other demolition method existed as to the particular structure and the safety of his crew was at issue.

Our review of the tr

ial court’s findings of fact are de novo upon the record, accompanied

by a presumption of correctness unless the evidence preponder ates other wise. Rule 13(d) T.R.A.P. While we ce rtainly agree with the trial judge that the damage sustained to the Carmen’s building resulte d directly f

rom the demolition of

the Glassman struc

ture, we hold

that it is for a jury to determine whether Angus acted negligently in demolishing the one struc ture so as to cause damage to the other. We believe that reasonable minds could differ on the issue of whether Angus employed the improper method of demolition, negligently causing damage to the McCurleys’ building or whether under the particular circumsta nces at hand, Angus employed the only means available, rendering the resulting damage unavoidable, and of which Mr . McCurley was aware.

It results tha

t the judgment of t

he trial court is r

eversed and this c

ause remanded to the trial court for a new trial on the merits. Costs are assessed against the appellees, for which

exe cut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)