Court: Plaintiffs Carry Burden of Proof in Property Damage Cases

Written by: Alan Nochumson

In Roberts v. Lily Development, 2021 Pa. Super. Unpub. LEXIS 709 (March 16, 2021), the Pennsylvania Superior Court recently decided that a verdict in favor of a homeowner in Philadelphia was proper although the trial court held that the homeowner failed to establish that the damage to her home was permanent.

In Roberts, Elisabetta Roberts owned a townhome adjacent to a property purchased and demolished by Lily Development, the opinion said.

After the demolition occurred, Lily Development subdivided the property into three separate and distinct lots and constructed a townhome on each lot.

Roberts asserted that her townhome was seriously damaged as a result of the negligent demolition and construction activities of Lily Development and other related parties, the opinion said.

Specifically, Roberts claimed the demolition and construction activities damaged the shared party wall and that Lily Development did not take the appropriate steps to prevent or fix the damage.

Furthermore, Roberts alleged that Lily Development continuously interfered with her use of her property over the construction period, the opinion said.

Roberts filed a complaint asserting causes of action for negligence, private nuisance and trespass.

At trial, Roberts’ expert testified that during the demolition phase, Lily Development left a depression at the bottom of the party wall that separated Roberts’ home from the previously existing adjoining building structure, causing water to pool and seep into the basement of Roberts’ townhome, the opinion said.

Furthermore, according to Roberts’ expert, Lily Development did not attach the newly constructed townhome to the party wall, leaving the wall unstable as well as a gap that allowed moisture to accumulate, causing the wall to deteriorate.

Roberts’ expert also explained that the party wall would eventually bow, causing structural damage to the townhomes on both sides.

According to Roberts’ expert, completion of repairs would take a couple of months and require opening the wall of the first floor of the neighboring townhome, and possibly the second and third floor walls, which would make the repairs extremely difficult and expensive, as well as disruptive.

Roberts did not present any evidence she contacted her new neighbor requesting permission to conduct the repairs or precisely how expensive the repairs would be to complete, the opinion said.

Roberts attempted to produce a written repair cost estimate, but the trial court excluded it as hearsay, as she did not present the person who prepared the report as a witness.

However, Roberts did testify as to her personal belief of the value of her townhome—between $475,000 and $579,000—assuming all issues plaguing it were properly remediated, the opinion said.

Roberts testified that she did not believe her property with the current condition of the townhome was salable given the condition of the party wall.

According to Roberts, she believed that the value of the land was $172,000, and she guessed that she could potentially sell the property with the townhome for $250,000, the opinion said.

The jury entered a verdict in her favor on negligence and private nuisance, and in Lily Development’s favor on trespass.

The jury awarded Roberts $550,000 for negligence, $2,000 for private nuisance, and $350,000 in punitive damages for a total of $902,000, the opinion said.

In response to Lily Development’s post-trial motions, the trial court granted judgment notwithstanding the verdict on Roberts’ negligence cause of action. In doing so, the trial court reasoned that Roberts failed to establish that the damage to her property was permanent or produce any evidence of the cost to repair the damage.

In granting Lily Development’s motion for judgment notwithstanding the verdict, the trial court concluded that Roberts failed to establish that the damage to her land was permanent because it was unclear whether the new next-door neighbor would allow work to be done on their side of the party wall.

Roberts appealed the trial court’s ruling to the Superior Court, arguing that the evidence presented at trial established that the damage to her townhome was permanent and decreased the value of her property.

Quoting Kirkbride v. Lisbon Contractors, 560 A.2d 809 (Pa. Super. Ct. 1989), the Superior Court in Roberts highlighted that “a permanent injury to real estate is limited to those instances where the damage was caused by a de facto taking or where the injury was unequivocally beyond repair.”

The Superior Court in Roberts noted that the trial court relied upon Slappo v. J’s Development Associates, 791 A.2d 409 (Pa.  Super. Ct. 2002) when making its ruling.

According to the Superior Court in Slappo, “if the land is not reparable, the measure of damage is the decline in market value as a result of the harm” and “the plaintiff has a duty to present sufficient evidence from which a jury can compute the proper amount of damages with reasonable certainty”.

However, the Superior Court in Slappo emphasized that, if the repairs are possible, the proper measure of damages is the lesser of the cost of repair or decrease in the market value of the property.

In Slappo, the plaintiff brought an action against a developer for ejectment and trespass after the developer allegedly damaged some of her farmland by removing trees, constructing a waste and sewage facility, installing utility poles, removing fence posts and changing the contour of the land by excavating.

The developer in Slappo relied on a survey that incorrectly identified the boundary between the properties. The jury in Slappo found in favor of the plaintiff, but the trial court granted a new trial on compensatory damages. The trial court in Slappo reasoned that the plaintiff failed to produce any evidence of the cost to repair her land.

The Superior Court in Slappo affirmed the trial court’s ruling, pointing out that the plaintiff presented no evidence as to the cost of repairs and rejecting the plaintiff’s argument that the jury could have used its common sense to determine that repairs were impractical and would have exceeded the value of the damaged property.

With no estimate of the cost of repair, the Superior Court in Slappo reasoned that the jury could not compare the repair cost with the decrease in the market value of the property.

However, the Superior Court in Roberts distinguished the factual circumstances set forth in Slappo, in that repairs in Roberts would be possible but require extensive, albeit temporary, damage to the neighboring townhome.

Further, the Superior Court in Roberts did not read the ruling rendered by the Superior Court in Slappo as prohibiting an appeal to a jury’s common sense, but instead concluding that the evidence in that case was insufficient to facilitate a determination on the question of permanent damage.

Instantly, Roberts’ evidence established that Lily Development damaged the party wall and then effectively sealed in the damage such that repairs, although possible, would be extremely unlikely to occur.

The Superior Court in Roberts nonetheless openly expressed dismay that there was no evidence that Roberts ever contacted the neighboring property owner.

At trial, Roberts expressed reluctance to reach out to the neighboring property owner because “it would not have been neighborly to drag her neighbor into court.”

Roberts’ explanation was not well taken by the Superior Court for several reasons.

To start, the Superior Court in Roberts noted that Roberts did not cite case law relieving a plaintiff of the burden of proof because of the plaintiff’s reluctance to contact or subpoena a potentially unwilling witness.

Second, the Superior Court in Roberts posited that one could argue that the neighborly course of action would have been to inform the neighboring property owner of the looming structural damage to their townhome.

Also frustrating to the Superior Court in Roberts was Roberts’ failure to introduce into evidence an estimate of the repair costs. If the cost of repair approached or exceeded the amount at which Roberts valued her townhome, the issue of permanent versus reparable damage would have been obviated.

Nevertheless, the Superior Court in Roberts concluded the trial court erred in granting judgement notwithstanding the verdict, determining that Roberts’ evidence permitted the jury to find that Lily Development failed to make simple repairs while the party wall was exposed and created an extremely expensive and difficult repair project that would depend on the neighboring property owner’s willingness to tolerate substantial and prolonged disruption to their enjoyment of their townhome.

Accordingly, even without evidence of the neighbor’s intentions, the Superior Court in Roberts concluded that a jury could reasonably find that the needed repairs would never occur and that Roberts’ townhome was unequivocally beyond repair. Thus, the damage effectively became a part of the property.

Lessons Learned

Although Roberts received a favorable outcome, the Superior Court’s opinion highlights that plaintiffs carry the burden of proof in property damage cases.

It is imperative that the plaintiff presents adequate evidence that the property damage is unequivocally beyond repair, even if it does lead to being “unneighborly.”

Clementa Amazan, an associate at Nochumson P.C., is the co-author of this article.

Reprinted with permission from The Legal Intelligencer © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, or visit