227 N.C. App. 306
N.C. Ct. App.2013Background
- DENR appeals Full Commission’s Tort Claims Act decision awarding Plaintiffs damages and costs.
- Permits in 1998 authorized two separate septic systems for Lot 9 and Lot 10; 2003 permit issued for a single system.
- Plaintiffs sought to revoke 1998 permits and obtain a single permit; soil evaluations questioned the 1998 findings.
- 2003 permit based on 2003 site visit; soil conditions later deemed inconsistent with 1998 records.
- Plaintiffs sued July 2007; deputy commissioner found negligence under special duty in 2011; Full Commission affirmed damages in 2012.
- Court reviews commission findings of fact and legal standards de novo with respect to legal conclusions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to prove McCabe’s breach | Common knowledge suffices | Expert testimony necessary for professional standard of care | Sufficient without expert testimony; common knowledge exception applied. |
| Whether replacement-cost damages were proper or if mitigation/repair values apply | Replacement costs appropriate due to negligent permit | Damages should reflect repair or diminished value | Replacement-cost damages affirmed; remand on replacement property value component. |
| Whether replacement-land value based on MLS/88% of list price evidence is supported | Evidence showed comparable parcels; replacement value valid | Evidence insufficient to support 88% figure | Reversed as to the 88% replacement-land value; remand for proper evidence. |
| Whether the award mischaracterized out-of-pocket costs as replacement costs | Costs contemplated as replacement costs | Feierstein controls; costs improper | Argument rejected; Feierstein distinguishable; no error in labeling. |
Key Cases Cited
- Plow v. Bug Man Exterminators, Inc., 57 N.C. App. 159 (N.C. App. 1982) (replacement cost as measure of damages acceptable)
- Huberth v. Holly, 120 N.C. App. 348 (N.C. App. 1995) (replacement/repair costs relevant to diminution in value)
- Feierstein v. NCDENR, 202 N.C. App. 147 (N.C. App. 2010) (unpublished; out-of-pocket costs not awarded as replacement costs)
- Watts v. NCDENR, 182 N.C. App. 178 (N.C. App. 2007) (damages for negligent permit; later modification on appeal)
- Associated Indus. Contractors, Inc. v. Fleming Eng’g, Inc., 162 N.C. App. 405 (N.C. App. 2004) (common knowledge exception respected in certain professional contexts)