Facts

Plaintiffs Richard and Janet Wheeler owned a residence adjacent to a home owned by defendant Maureen O'Neill
on a sloped street in San Francisco. Their homes are separated by one to two inches. The defendant's home has
a lightwell that is adjacent to the plaintiffs' side wall, which is open to the sky and one level below the roof
line. A downspout that drains most of the defendant's rooftop water is located in this lightwell.
The plaintiffs claimed that, from January 2001 to March 2002, rainwater run off from the
defendant's roof, leaked out of defendant's downspout, into defendant's light well area, which ran
into the gap between the homes. This caused damage to the plaintiffs' garage's wood siding.

The plaintiffs sued the defendant, alleging negligence and trespass. They contended that the defendant failed to
properly maintain her downspout which had deteriorated, rusted out and leaked. A roof inspector hired by the
defendant's insurance carrier and a contractor hired by the plaintiffs testified to seeing holes in the downspout.
The plaintiffs also contended that the lightwell was defective in that it did not have an independent drain, in
violation of city and state plumbing codes, allowing water to enter the gap between the homes.
DEFENDANT CONTENTIONS:
The defendant argued that she was not negligent. She claimed that when she
purchased her house five years earlier, the house and pest control inspectors did not find any problems with
this particular downspout or lightwell area.
The defendant asserted that the design of the plaintiffs' home was the cause of the water damage. The plaintiffs'
residence, although uphill of the defendant's home, had a lower concrete foundation and their wood framing
was attached to the foundation. Thus, the water entering the gap between the homes would rest against the
plaintiffs' wood framing, instead of a concrete foundation. If plaintiffs' foundation was higher than ground
level, the framing would be higher and better protected from water.
The defendant further claimed the water damage (dry rot) does not occur in three months or even one year.
Water had been flowing through the gap between the two homes since the plaintiffs' home was built 50 years
ago. The current dry rot was a result of 50 years of water intrusion.
The defendant asserted the plaintiffs were barred by the three-year statute of limitations

Settlement Discussions

The plaintiffs made a demand of $140,000. The defendant made a C.C.P. Section 998 offer of $20,000.

Damages

The plaintiffs claimed expenses of $23,681 to repair the damage, and $87,800 for loss of rental income. The plaintiffs claimed their residence was uninhabitable and not rentable because there was water coming into their garage during rains. Water intrusion also presented a slip and fall hazard. The plaintiffs also claimed travel expenses of $11,000 because they lived in Arizona. They sought a jury award of $122,000. The defendant contested the loss of rental income by asserting that the dry rot damage posed no structural threat to the residence, and that there was no water intrusion into the living areas above the garage. At the very least, the house could have been rented without a garage. The defendant also claimed that the plaintiffs failed to mitigate their damages because they took more than two years to complete repairs to their property.

Result

The jury found in favor of defendant.

Other Information

Motion for new trial not made. The defendant to recover $9,860 in costs.

Deliberation

four hours

Poll

11-1

Length

six days