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Stratton v. McConnell Landscape and Construction, LLC

Court of Common Pleas of Delaware, New Castle

November 7, 2017

CAROL STRATTON and M. LISA ATTEBERRY, Plaintiffs,
v.
MCCONNELL LANDSCAPE AND CONSTRUCTION, LLC and BELAIR ROAD SUPPLY OF DELAWARE, LLC Defendants.

          Submitted: August 31, 2017

          Elwood T. Eveland, Jr., Esquire The Eveland Law Firm Attorney for Plaintiffs.

          Richard E. Berl, Jr., Esquire Berl & Feinberg, LLP Attorney for Defendants.

          DECISION AFTER TRIAL

          ALEX J. SMALLS, CHIEF JUDGE.

         Plaintiffs, Carol Stratton and Lisa Atteberry ("Plaintiffs") bring this action for damages to their property sustained during the construction of a rear outdoor patio. Plaintiffs entered into a contract with McConnell Landscape and Construction, LLC ("McConnell") to build an outdoor patio in the backyard of their vacation home. McConnell subcontracted with Belair Road Supply of Delaware, LLC ("Belair") (collectively, "Defendants") to supply the bricks for the patio. Plaintiffs allege that Defendants caused damage to their lawn and driveway during the delivery of the bricks and instillation of the patio.

         On August 31, 2017, the Court held trial on the matter. The evidence consisted of testimony from Plaintiff Carol Stratton, her neighbor Brian Grawehr, Michael McConnell and Robert Basarab. The parties also submitted pictures as exhibits. At the conclusion of trial, the Court reserved decision. This is the Court's decision after trial.

         FACTUAL AND PROCEDURAL HISTORY

         On May 11, 2016, Plaintiffs filed a complaint against Defendants indicating that Plaintiffs entered into a contract with McConnell for the installation of a patio and McConnell subcontracted with Belair to provide materials to be delivered to Plaintiffs property. The complaint alleges that Belair damaged Plaintiffs property by driving a heavy truck onto a newly poured driveway during the delivery of the patio pavers. The complaint further alleges that McConnell damaged Plaintiffs lawn during the construction of the patio by leaving planks across the grass. Plaintiffs seek judgment in the amount of $9, 927.50, plus interest, attorney's fees, costs, and punitive damages.

         On August 17, 2016, Defendants filed a joint Answer denying the allegations. Defendants concede that McConnell contracted with Belair to provide and deliver materials, but deny that Belair was an agent or employee of McConnell. Defendants also raise a number of affirmative defenses.

         PARTIES' CONTENTIONS

         Plaintiffs allege when Defendant Belair delivered pavers to their property, the driver negligently drove and parked the delivery truck onto their newly paved driveway, causing damage. Plaintiff had the driveway repaired by a separate company. Plaintiff further alleges Defendant McConnell damaged the lawn of Plaintiffs property by leaving planks on the grass approximately four to five days a week and only removing them off the grass during the weekend. As a result, approximately 800 square feet of sod required to be replaced.

         Defendant McConnell concedes that some damage to the lawn occurred as a result of installing the patio in the back of Plaintiffs yard. Upon completion of the patio, McConnell reseeded the affected areas twice in the month of August. Defendant Belair alleges that when the pavers were delivered, he parked in the most logical place being the Plaintiffs driveway since parking in the yard would have most likely caused damage to the lawn. Defendant Belair contends that the driveway damage was only a small "scuff and Plaintiff did not inform Defendant's not to use the driveway.

         DISCUSSION

         As trier of fact, the Court is to assess the credibility of the witnesses and, where there is a conflict in the testimony, to reconcile these conflicts, "if reasonably possible[, ] so as to make one harmonious story."[1] In doing so, the Court takes into consideration the demeanor of the witnesses, their apparent fairness in giving their testimony, their opportunities in hearing and knowing the facts ...


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