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Where Damage is Natural or Necessary Result of Excavation or is Foreseeable

An owner is ordinarily liable for damage or injury to an adjoining building caused by an excavation performed by an independent contractor on the owner’s land if the damage was the necessary result of the excavation work and the injury might reasonably have been foreseeable as a probable consequence of the excavation.  An owner is also liable if excavation may probably lead to damage to adjoining buildings if no precautions are taken and the owner fails in his or her nondelegable duty to take all necessary steps to avoid injury.

Also, if the damage to structures on adjoining property results directly from the acts of the independent contractor, the owner will be liable for such damages.  In such a scenario, the owner cannot shirk responsibility except in a situation where the owner has provided sufficient plans and specifications to the independent contractor who performed the excavation work.

An adjacent owner of land has no right to deprive his neighbor of the natural support afforded by his/her land.  However, the scope and extent of the adjacent owner’s right varies with circumstances.  For instance, the adjacent owner will have a more meritorious claim if there is an easement.  The owner must exercise his/her right to make improvements in the property with due care and skill at his peril to prevent injury to the adjacent owner.  Law will book the owner if the damage or injury is a necessary consequence and was foreseeable.  For instance, the owner in a populous city is not permitted to make an excavation, even through an independent contractor, upon his lot “in near proximity to his neighbor’s house and to a depth of some feet below the level of the foundations of that house and be under no obligations either to see that the contractor in doing the work protects the neighbor’s wall by the exercise of due care or to give the neighbor timely notice of the nature and extent of the intended excavation that he may take due precautions for the protection of his own wall.”[i]

If the injury results directly from the acts called for or rendered necessary by the contract, and not from acts which are merely collateral to the contract, the employer is liable as if he had himself performed such acts.  The employer of an independent contractor is liable when the performance of the contract, in the ordinary mode of doing the work, necessarily or naturally causes injury [ii].  In Philips, the plaintiffs sought damages for injury to a church that resulted from the loss of lateral support caused by the negligence of independent contractor in making an excavation on the landowners’ adjacent property.  The court found that the defendants entered the church property without permission, and that their failure to exercise reasonable care proximately caused damage to the church property.  In addition, the defendants violated the city ordinance by making an excavation that extended within one foot of the natural slope of the soil under the church’s foundation. The court found that the defense of independent contractor has no application since the resulting injury, was not collateral and was a direct consequence of the negligent act of the employee alone.  The injury might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care was taken in the course of its performance.  The court held that in such a case, the person causing the work to be done will be liable though the negligence is that of an employee of the independent contractor.[iii]

[i] Bonaparte v. Wiseman, 89 Md. 12 (Md. 1899).

[ii] Law v. Phillips, 136 W. Va. 761 (W. Va. 1952)

[iii] Id.

Inside Where Damage is Natural or Necessary Result of Excavation or is Foreseeable