Block Retaining Wall Cracks Caused by Lull Forklift Very Near It

We have a 40+ year old rental home in Alamogordo, NM. One morning, I noticed a large Lull forklift ILLEGALLY parked adjacent to our North block retaining wall on the sidewalk adjacent to the wall about 2 feet from the wall. I also noticed that opposite to where each of the Lull wheels rested on the ground the wall is severely cracked just above the sidewalk. I had inspected the area two days earlier for weeds and debris and there was no wall cracking at that time and no raining in between. And there is no wall cracking between the cracked areas or on either side of the cracked areas. Later measurements by me indicate that the sidewalk was sunken in about a 1/2" where the Lull tires rested. My tests also indicate that the inner edge of the sidewalk rests on the outer edge of the wall's foundation. I do not know for certain if the wall's foundation is also damaged. I used a metal detector to verify that there is rebar in the cinder block.
I took many photos of the Lull and wall, a few of which are at: www.jjwill.com/DamagedWall.htm
The land where the Lull was parked - my property - is pitched about 5 degrees up to the wall. I estimate that the weight of the Lull to be about 8,000 lbs (actual weight??), and that the shear force into the wall was therefore about 700 lbs (8000 x sin[5 deg.]) plus there was likely much greater direct downward force on the wall's foundation, probably 1,000s of pounds. Clearly, the Lull cracked the wall. However, the insurance company of the Lull owner (a contractor building a clinic adjacent to our property) has refused to pay, claiming that the wall is "old" and probably has a "defective foundation." Because of this refusal, we will probably have to litigate this matter.
I have done some relevant Internet research with limited results. I still need to obtain definitive information on: (A) Government and industry safe distance standards, regulations, etc. for driving and parking heavy construction vehicles near walls and buildings. (B) Specific Lull operating manual and other Lull documentation that addresses this safety issue. (C) Websites, books, specific periodicals, etc. which addresses these issues. (D) The make, model, and closer approximation of Lull weight. (E) Based on the Lull's number shown in a photo, how to trace the Lull, its history and ownership in NM. (F) OSHA forbids "stunt driving" of construction equipment, based on definition of stunt driving, this incident clearly is covered, but if you know specific on-target stunt driving precedents relied upon by OSHA, please let me know. (G) If you know someone who can evaluate and testify as an expert witness in the Alamogordo, NM, area please let me know (not a dire necessity since most jurors already understand gravity). (H) I expect my causes of action will far exceed negligence and trespass and to file a lawsuit for a very large amount in NM State District Court, should you know of an attorney who would probably be interested in handling my case on a contingency-fee basis, please let me know.
I am an older Disabled Veteran who knows little about repairing block walls, so if you know someone reliable and modestly-priced contractor in the south-central New Mexico area who can inspect my wall and/or give me an estimate for free or low-cost, please also let me know. Also, if you know of a reliable structural engineer in this area who can evaluate the situation to ascertain just how great the damage, please let me know. Please respond. I need all the help I can get. Thanks. John J. Williams snipped-for-privacy@jjwill.com
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wizguru wrote:

I think this is where you should start before getting all torqued up and ready to go to war. The only damages you have is what it will cost to repair the wall, if that's even required or worthwhile. If it's a few thousand bucks or less, then you can take them to small claims court, which is likely the only reasonable option. And that's all your gonna collect in court, the actual cost to repair it, there is no big pay day for a case like this and it's very unlikely a lawyer is gonna take it on contigency.
Of course the big problem is proving they caused the damage and that may not be easy. You'll need some expert testimony or at least an affidavit from someone knowledgable in retaining walls stating that they believe it was caused by the forklift and there was not some underlying defect in a 40 year old wall.
Most likely, if you bring a case in small claims, the insurance company will offer to settle.

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I would first call your insurance company and explain the accident. Let them go after the other guy. These days litigation is so expensive, unless you are talking at least $20k of damage it is just about a waste of time. Let your insurance company handle. If you have coverage and good evidence that the only cracks are where the wheels were, if they don't pay, you can report them to your state regulating agency.

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Art wrote:

You were wise to take pictures. I would recommend small claimes court. Don't settle for a crack patch or any other minor repair method. Retaining walls are hard to repair because of the lateral force from the material that is retained. You may have a problem if you are just a tennant and not the owner. If it is not your house it is not your problem.
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Recently went through something similar situation with a contractor using "dynamic soil compaction" AKA dropping a big weight form a great height. After a number of cracked walls and a collapsed ceiling in a basement various home owners called their home owners insurance. I got a nice check for repairs and as I last heard, the insurance company had sued the contractor sucessfully and collected. What puzzels me is that you say that the forklift was parked on your property. Have you looked into filing a trespassing complaint? If there is a conviction on that, even misdomeaner tresspass, it would help your civil complaint. Oh, I am not a lawyer so the above is just my opinion. Bob
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Thanks for everyone's helpful responses. Please continue to respond.
The Lull caused the damage, and I am very confident I can prove it based on a preponderance of evidence. Most juries are reasonable and use common sense in rendering a decision.
I spent months trying to reasonably deal with their attorney to just repair the wall - I asked for no money for me - but just repair the wall. I have done everything reasonably possible to avoid a lawsuit. They forced me to sue and I shall sue.
I finally got a response that they would replace the bricks. I responded that was acceptable to me but they would have to guarantee their work for a year against defects in workmanship and materials, ascertain that the wall's foundation was not cracked (as it makes no sense to put good bricks on top of a bad foundation), and to make sure the site was safe while they were working on it (because of the public sidewalk). Their response was then to refuse to do the repairs. Seems to me their intent was to just slop some bricks in there.
Not shown in the photos, the sidewalk is heavily cracked on both sides of where the Lull was parked. And as I stated, where the Lull wheels rested, the sidewalk is depressed about 1/2". Furthermore, parking on a sidewalk in Alamogordo is ILLEGAL, and I own the land on both sides of the sidewalk, so they had trespassed my property and parked on it without financially compensating me for that privilege or seeking my permission.
I am very reluctant to contact the insurance company. Reason being is that the last time I put in for an insurance claim years ago, the insurance company refused the claim, then refused to renew the insurance on the home and then jacked up my insurance on the home we live in that has nothing to do with that home and of which I have never filed a claim with, and then blackballed us with all of the other insurance companies. I filed a complaint with our PRC and never got a response. You are talking about New Mexico, where insurance companies can apparently abuse people at will because clearly the PRC and AG are in bed with them.
What is the model of this Lull? How much does it actually weigh? And does its safety manual warn against driving or parking too close to structures? Again, images are at: www.jjwill.com/DamagedWall.htm.
John ( snipped-for-privacy@jjwill.com)
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wizguru wrote:

If you think this is worth taking to a jury trial, you must be nuts. You were ready to accept their repairs subject to a few additonal conditions and the amount of that repair sounds very small, certainly under a few thousand bucks.
The big and obvious question in all this is exactly how much does the damage amount to? I would have figured that out before I did anything else. Until you determine that, talking about jury trials is just getting all torqued up over nothing. At most, I see a small claims case here.

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