CAROL STRATTON and M. LISA ATTEBERRY, Plaintiffs,
MCCONNELL LANDSCAPE AND CONSTRUCTION, LLC and BELAIR ROAD SUPPLY OF DELAWARE, LLC Defendants.
Submitted: August 31, 2017
T. Eveland, Jr., Esquire The Eveland Law Firm Attorney for
Richard E. Berl, Jr., Esquire Berl & Feinberg, LLP
Attorney for Defendants.
DECISION AFTER TRIAL
J. SMALLS, CHIEF JUDGE.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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." 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 ...