Sixth District Determines Trial Court Properly Applied “Tort of Another” Doctrine in Favor of Landowners With the Challenging Driveway.
Co-contributors Marc and Mike have written an article on when attorney’s fees may be awarded as damages in certain cases. (See “When the American Rule Doesn’t Apply: Attorney’s Fees as Damages in California Litigation,” California Litigation, Vol. 21, No. 3 (California State Bar 2008), available for reading with thanks to the State Bar on our November 13, 2008 post.) One such instance occurs if the “tort of another” doctrine applies. The next opinion affirmed a fee award based on this doctrine.
Bennett v. M. Lewis, Inc., Case No. H032813 (6th Dist. May 29, 2009) (unpublished) involved residential purchasers who had to sue when their adjoining neighbors tried to prevent them from using a driveway turnout. The parties reached a settlement in which residential purchasers obtained legal title to the turnout area. Residential purchasers subsequently sued the prior owner and contractor which constructed the driveway for nondisclosure and negligent construction. Following a bench trial, residential purchasers were awarded damages against defendants on the negligent construction claim in the amount of $32,531.31, some of which included attorney’s fees they had incurred in the prior litigation against their adjoining neighbors. Among other challenges, defendants challenged the award of fees under the “tort of another” doctrine.