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Lusardi v. Kensington Building Corp.11/29/2005
ve retaining wall, which was not sufficient to laterally support the property of [the Lusardis]; that thereafter [the Lusardis] complained to [Kensington], at which point, [Kensington] removed said retaining wall and erected a second negligently constructed retaining wall, which [the Lusardis] have been advised will not laterally support [the Lusardis'] property, and which will subject [the Lusardis] and their guests and invitees to the risk of personal injury and financial loss when said retaining wall gives way. . . .
6. That [the Lusardis] have had said retaining wall reviewed by a licensed engineer and made certain recommendations to [Kensington] by which [Kensington] could shore up said excavation and retaining wall to prevent the likelihood of future injury and damages to [the Lusardis], but [Kensington] has failed and refused to take the steps necessary to make said retaining wall safe.
7. That [the Lusardis] have no adequate remedy at law and request th[e trial c]court to issue an injunction mandating that [Kensington] make said wall structurally sound and safe so as to prevent future injury to [the Lusardis] and their guests and invitees; or in the alternative, that [Kensington] be ordered to pay such damages as will be necessary to hire an independent third party to make said wall safe and further to enter a mandatory injunction that [Kensington] allow said third party onto its property in order to make the necessary repairs.
The "WHEREFORE" paragraph follows those allegations. Without more regarding a physical change in the Lusardis' property as a result of Kensington's excavation and building of a retaining wall on Kensington's own property, the Lusardis do not have a cause of action for damages for the loss or withdrawal of lateral support from their land.
Due to the Missouri case law on which we rely and the fact that, under the circumstances of this case, we need not ascertain the extent of the subsidence necessary for a cause of action for the withdrawal or loss of lateral support, we will not discuss the non-Missouri cases on which the parties rely.
In addition to the absence of any indication of past or imminent subsidence in the petition's allegations, the trial court record does not establish that, at the time of trial, subsidence of the Lusardis' property had occurred or was imminent. Dr. Lusardi testified that, in terms of grade, " here's been no significant change to the property." The Lusardis' expert, Edward T. Austin, testified only that he thought "the wall is going to fail. It's just a matter of when"; in his experience with retaining walls of this height, "over time the top of the wall tends to move out . . . [and, as it does,] the soil behind it sinks and the Lusardi soil would sink as the wall moves out"; and, he did not know when or where the wall will fail but, if it fails, "two to . . . four feet, within [the Lusardis'] property line would slide downward toward the Kensington lot." Lawrence A. Rice, an officer and employee of Kensington, testified that, based on his personal inspection of the wall the day before trial, there had been no shifting or sinking of the Lusardis' soil at the retaining wall.
Under the circumstances, the trial court erroneously applied the law by awarding damages to the Lusardis in their cause of action for the withdrawal of lateral support in the absence of a subsidence of their property.
Point two is granted.
The judgment in favor of the Lusardis is reversed.
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