David E. Mende

Following dismissal of the main action and the third party claim, the court determined costs among the parties.

The plaintiff argued that the defendant’s costs should be reduced due to inadequate documentary production and the calling of allegedly irrelevant witnesses.

The court rejected most of these objections but applied modest deductions for fairness.

Applying Rule 57.01(1) of the Rules of Civil Procedure and considering the complexity of the expert engineering evidence, the court applied a 65% partial indemnity factor rather than the typical 60%.

The plaintiff was ordered to pay partial indemnity costs to both the defendant and the third party.

The plaintiff sued the defendant municipality for damages after a retaining wall on the plaintiff's property collapsed.

The plaintiff alleged the municipality negligently approved the wall's design and failed to follow a third-party engineer's recommendation to conduct a complete visual inspection.

The court dismissed the action, finding the plaintiff failed to prove the existence of an agreement that would create a duty of care regarding the wall's design.

Furthermore, the municipality's prior inspection and repair of the wall constituted a gratuitous undertaking, and there was no detrimental reliance by the plaintiff to ground liability.