Southeast Consultants, Inc. v. O'Pry, 404 S.E.2d 299

Southeast Consultants, Inc. v. O'Pry

404 S.E.2d 299

Ga. Ct. App.

1991

Check Treatment

Birdsong, Presiding Judge.

D. Michael O’Pry sued Benny L. Brunner and Southeast Consultants, Inc., engineering and land surveyors who were subcontractors on O’Pry’s new house, for negligence in performing percolation tests prior to installation of a septic tank. Three months after O’Pry purchased the new house for $117,500, the noxious condition of the septic tank manifested itself. The jury rendered a verdict for O’Pry for 5125,000. Brunner and Southeast Consultants appeal. Held:

1. Appellants contend they were entitled to judgment n.o.v. on grounds the plaintiff has no standing to sue because his cоntract was with the builder and not with appellants.

It is well settled that privity is not necessary to found a suit in íegligenсe. Georgia-Carolina Brick &c. v. Brown, 153 Ga. App. 747 266 SE2d 531). The fact that plaintiff’s contract was with another loes not prevent plaintiff from seeking damаges for negligence. One vho in the course of his business, profession or employment supplies alsе information is subject to liability for damages caused by others’ ustifiable reliance upon the informatiоn, where ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he fails to exercise easonable care or competence in providing thе information, and yhere the loss is suffered by one for whose benefit he supplies the nformation or knows that the recipient intends to supply it, and /horn he intends the information to influence or knows that the re-ipiеnt so intends. Robert & Co. Assoc. v. Rhodes-Haverty Partnerhip, 250 Ga. 680 (300 SE2d 503). Thus, where the engineer knows hat prospective purchasers could rely on his report, а lack of privity dll not shield him from liability to the foreseeable prospective pur-hasers. Id. It was foreseeable to appellants that the person directly ijured as the result of their negligence wоuld be the purchaser of the ouse; therefore, a clear duty was owed in that regard.

I Plaintiff gave еvidence that the percolation test results provided ft) Gwinnett County showed an acceptablе range of percolation in the ftil on this lot, which induced the county to issue a permit to install a ftptiс tank; but in fact the rate of percolation was grossly unacceptable and, knowing that, the cоunty would not have allowed a septic *126 tank to be installed on this property. On appeal of thе denial of judgments n.o.v., we view the evidence in favor of the jury’s verdict, and where there is evidence tо support the verdict it cannot be said the evidence demanded a contrary verdict. OCGA § 9-11-50; see Stone v. Cook, 190 Ga. App. 11, 12 (378 SE2d 142). Appellants were not entitled to judgment n.o.v.

2. Appellants contend the trial court erred in denying them judgment n.o.v. as to the amount of damages. Appellants argue in essence that the meаsure of damages cannot be based on the present market value of the house as it would have been ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍at the time of trial, but must be based on its value at the time plaintiff bought it; and that in any case plaintiff’s testimony that as the result of appellants’ negligence the house has “no value” is an improper basis to award damages.

“ ‘As a general rule the measure of damages ... for injuries to real property is the difference in value before and after the injury to the premises’ ” (Mercer v. J & M Transp. Co., 103 Ga. App. 141, 143 (118 SE2d 716)), or, “the difference . . . between what the builder built and what he should have built.” Piedmont Bldrs. v. Fullerton, 157 Ga. App. 126, 127 (276 SE2d 277); see Hortman v. Cantrell, 173 Ga. App. 429, 430 (326 SE2d 779). “The measure of damages ... is the difference in value of the housе as finished and the value of the house as it should have been finished. . . . The value of the house three years after the sale was wholly immaterial to the issue to be resolved.” Williams v. Runion, 173 Ga. App. 54, 58 (325 SE2d 441).

Plaintiff was competent to give his own opinion as to value, since ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he laid a proper foundation for it (see OCGA § 24-9-66; see Department of Transp. v. Brown, 155 Ga. App. 622, 623 (271 SE2d 876)) but an award bаsed on the present market value of the house is no' authorized.

The market value of this house as it shоuld have been built waf apparently what plaintiff paid for it, $117,500. The evidence and al reasonable inferences show that a permit to install a septic tank or this property would not have been issued if correct percolation tes results had been performed, and the defective conditiоns caused b? appellants’ negligence cannot be repaired. In Ray v. Strawsma, 183 Ga. App. 622, 623-624 (359 SE2d 376), the defects were irremеdiable so that the alternative measure of damages (cost of repairs) could no be applied; we noted that even though a house is allegedly worthies J| “[i]t has some value, if only for scrap (sеe Hutto v. Shedd, [181 GsM App. 654, 656 (353 SE2d 596)]), and that value may obviously bl whatever it is worth as a result of the irremediable defects. The owneH shоuld not have the benefit of that value, however low, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by recovering the entire contract pricе. . . .” However, it is not uncommon for afl irremediable and uninhabitable dwelling to be considered to have “nH value” on the market. See Getz Exterminators of Ga. v. Towe, 19 *127 Ga. App. 268, 269, 272 (387 SE2d 338). Although the evaluation that the house has no value may mean only that it has no market value, it is admissible as а circumstance to ascertain the value, and where there is no evidence tending to show this evaluation is unreasonable, a verdict for plaintiff is not without ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍evidence to support it. See Dixon v. Williams, 177 Ga. App. 702, 703-704 (340 SE2d 286). Appellants had ample opportunity to show the house at least had some “scrap value,” but there is no such evidence. The evidence shows the house has no value and we are not authorized to say as a matter of law that it did.

Decided March 1, 1991 Rehearing denied March 13, 1991 William A. Wehunt, Charles A. Mullinax, for appellants. Webb, Carlock, Copeland, Semler & Stair, Paul R. Vancil, for appellee.

Plaintiff can recover no more than the market value at the time of purchase. The judgment below is affirmed on condition that the award in excess of $117,500 be stricken; otherwise, a new trial is granted on the issue of damages.

Judgment affirmed on condition.

Banke, P. J., and Cooper, J., concur.