Opinion
No. CV 02 0188635
December 7, 2004
MEMORANDUM OF DECISION
Whether the court should award damages to the plaintiff on account of the slanted floors of the kitchen and bathroom additions constructed by the defendant, as well as the several other items introduced by the plaintiffs, either not provided pursuant to the contract or improperly installed. On the major items, to wit the kitchen and upstairs bathroom additions, the plaintiffs cannot recover because they failed to introduce sufficient evidence to support a finding that the defendant breached the duty to perform these services in a workmanlike manner. The plaintiffs did not submit expert testimony to prove the applicable standard of professional care and a breach thereof, neither does the evidence produced by the parties show an obvious and gross lack of care and skill, upon which the court, as the trier of fact, could find such a breach.
FACTS
On July 1, 2000, the plaintiffs, William D. Thompson and Anne R. Thompson, and the defendant, Putnam Kitchens, Inc., a Connecticut corporation, entered into a contract for certain renovations of the plaintiffs' house. The work to be performed by the defendant, a licensed home improvement contractor, included the expansion of the existing kitchen on the first floor of the house and the bathroom on the second floor of the house. On March 26, 2002, following the completion of the defendant's work, the plaintiffs filed the present action alleging that the defendant failed to meet its obligations in several ways, including by improperly building the support and framing of the kitchen and bathroom additions, which caused the respective floors to be slanted. The parties presented evidence and oral arguments in a court trial in February and April 2004.
The complaint is in six counts: (1) breach of contract; (2) breach of contract; (3) negligence; (4) detrimental reliance; (5) breach of the covenant of good faith and fair dealing; and (6) unjust enrichment. Of these six counts, the court dismissed Counts 3, 4 and 5.
DISCUSSION CT Page 19833
"[O]ne who constructs a building impliedly warrants that the building shall be erected in a workmanlike manner . . ." Vernali v. Centrella, 28 Conn.Sup. 476, 479, 266 A.2d 200 (1970). The implied warranty imposes on "[a] builder [the] duty to exercise that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions." Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983). "[A] defendant may be liable in negligence for the breach of duty which arises out of a contractual relationship." Neiditz v. Morton S. Fine Associates, Inc., 199 Conn. 683, 688, 508 A.2d 438 (1986). "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n. 13, 849 A.2d 813 (2004).The plaintiffs allege that the defendant breached its duty of care because it improperly constructed the addition to their house, thereby causing the floors of the new portions of the kitchen and bathroom to be slanted. On the basis of these allegations, the plaintiffs are raising both a claim of breach of contract as well as one in negligence. In its answer and during trial, the defendant denied said allegations, and argued that the plaintiffs cannot recover because they failed to prove through expert testimony what is the applicable professional standard of care as well as how the defendant failed to meet such standard. The award of any damages under either one of the legal theories adopted by the plaintiffs is conditioned upon a finding that the defendant breached the duty to perform its services in a workmanlike manner. Such a breach is in fact necessary to prove both a breach of contract and negligence on the part of the defendant.
"When a topic requiring special experience of an expert forms a main issue in the case, the evidence on that issue must contain expert testimony or it will not suffice. In cases involving claims of professional negligence, . . . expert testimony is essential to establish both the standard of skill and care applicable and that the defendant failed to conform to the standard, as these matters are outside the knowledge of the jury." (Citations omitted; internal quotation marks omitted.) Matyas v. Minck, 37 Conn.App. 321, 326-27, 655 A.2d 1155 (1995). "[I]n the absence of expert testimony explaining how the work performed . . . failed to comply with that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions . . . and how that negligence caused the damages complained of, a factfinder could not properly have inferred that fact." (Citations omitted; internal quotation marks omitted.) D'Esopo Co. v. Bleiler, 13 Conn.App. 621, 625-26, 538 A.2d 719 (1988). What is the standard of professional care that applies to a builder, and whether the same builder has met it in constructing a kitchen and bathroom addition to a house, are issues that clearly go beyond the ordinary knowledge and experience of a layman. They must, therefore, be proved through expert testimony. The plaintiffs, however, did not produce any expert witness to testify on these issues.
The present case, nonetheless, calls for additional considerations. Courts have consistently applied an exception to the above rule in medical and legal malpractice cases. "There is an exception . . . where there is such an obvious and gross want of care and skill that the neglect is clear even to a layperson . . . This exception has been applied in the context of a medical malpractice case . . . [and] in the context of a legal malpractice case." (Citations omitted; internal quotation marks omitted.) Paul v. Gordon, 58 Conn.App. 724, 727-28, 754 A.2d 851 (2000). "Whether the exception applies is a question of law for the court." DiGioia v. Greenberg, Superior Court, judicial district of New Haven, Docket No. CV 93 0350406 (October 11, 1995, Martin, J.). In at least two cases, the Superior Court has considered the exception in a professional malpractice action related to the construction of a building. Moreover, the Appellate Court has considered the exception in an action against an engineer for professional malpractice in designing a septic system.
See Blumenkopf v. East, Superior Court, judicial district of New London at Norwich, Docket No. CV 98 0116503 (June 28, 2002, Purtill, J.T.R.) (where the court found that the exception did not apply in the case before it); Apicelli v. C.R. Klewin, Inc., Superior Court, complex litigation docket at Norwich, Docket No. X04 CV 99 0118348 (February 19, 2002, McLachlan, J.) (where the court, after acknowledging the exception, chose to abstain from ruling on whether expert testimony was required in the case before it).
See Matyas v. Minck, supra, 37 Conn.App. 326-29 (the court found that "[t]he evidence presented did not demonstrate negligence [that] was so obvious as to be clear to a layperson without expert assistance.").
The court finds the exception to be, in principle, applicable to the present action. The rationale for the expert testimony requirement is the same with regard to any type of professional malpractice action; without having access to specialized information, a layman does not know what is the standard of care that applies to the defendant and cannot appreciate whether it has been met. A gross lack of skill on the part of the defendant, however, makes it possible for the finder of fact to decide, even without such information, whether the defendant has breached his duty of care. This is true for cases involving the construction of a building as much as it is for medical and legal malpractice actions.
Whether the plaintiffs may, therefore, recover is conditioned upon a determination that the defendant's lack of skill and care was so gross that even a lay person could appreciate the breach of duty on its part. During trial, consistent evidence was introduced by the parties that the floor of the kitchen and bathroom additions were slanted by one inch over ten feet. The plaintiff, William Thompson, also testified that he measured both ends of the joists underneath the floors of the kitchen and bathroom additions and found that the joists shrunk by one quarter of an inch uniformly along their length. (See Tr. 2/5/04, at 177-83.) According to the defendant's expert witness, the shrinkage was indeed constant, between one quarter and three eighths of an inch on both ends of the joists. Because of the manner in which the joists were installed, however, on one end the joists shrunk from the bottom up, while on the other from the top down up, which, according to the witness, accounted for the slant in the floors. (See Tr. 4/13/04, at 64-65, 70-74.) The expert witness also testified that in his professional judgment the slant was due to an ordinary shrinkage of the joists, and that the defendant did his work in a workmanlike manner. (See Tr. 4/13/04, at 70, 78-79.) Finally, the same witness added that he had never corrected a slant that was not over an inch in ten feet. (See Tr. 4/13/04, at 146.)
Michael Lovell, a licensed home improvement contractor, testified for the plaintiffs that such was the size of the slant in the addition floors. (See Tr. 2/5/04 at 240-41.) The court, however, did not admit his testimony as an expert, but only to the extent of what he actually observed. (See Tr. 2/5/04 at 232.) William Thompson also testified that the slant in the kitchen floor amounted to an inch over ten feet. (See Tr. 2/10/04 at 177.) Joseph Fossi, expert witness for the defendant also reported a slant of one inch over ten feet, as confirmed by a blueprint of the kitchen, prepared by the engineer Nick Quoko, and admitted into evidence as Exhibit I. (See Tr. 4/12/04 at 48, 139.)
The witness also testified that the slant along the two feet of the floor extending on the bay window of the addition was partially due to a deflection common to any cantilever, a projecting structure supported on one end only. (See Tr. 4/13/04, at 157-59.)
The evidence produced at trial does not indicate a lack of care on the part of the defendant so gross to justify an exception to the expert testimony requirement. A floor slanted by one inch over ten feet is not sufficient for the court to reasonably decide that the defendant breached its duty of care with respect to the kitchen and bathroom addition. The slant, in fact, is not so steep that a person with no expert knowledge could reasonably impute it to the neglect of the defendant. Therefore, even taking as true William Thompson's statement regarding the extent and pattern of the shrinkage of the joists, a layperson could not find a breach of duty on the part of the defendant without the support of expert testimony on the mechanics of, among others, lumber shrinkage, methods of joist installations and deflection in cantilevers.
Therefore, the plaintiffs cannot recover on account of the slant in the kitchen and bathroom additions. The plaintiffs failed to produce expert testimony as to the defendant's alleged breach of its duty of professional care and there is no gross want of skill on the part of the defendant from which the fact finder could reasonably infer such a breach.
The plaintiff also submitted evidence and this court finds proven that defendant failed to provide a screen door to replace the one removed during the renovations; the plaintiffs seek damages in the amount of $500 and this court awards this sum to the plaintiff. (See third revised and am. compl., first count ¶ 5(g).)
Further, that the defendant damaged the door-casing and the door from the kitchen into the dining room; the plaintiffs seek damages in the amount of $185 and the court finds this claim as proven. (See third revised and am. compl., first count ¶ 5(j).)
The defendant improperly installed the door saddle in the doorway between the new bathroom on the second floor and the existing bathroom; the plaintiffs seek damages in the amount of $75. (See third revised and am. compl., first count ¶ 5(n).) The court finds this claim has been proven and awards them the sum of $75.
The defendant failed to install the lower front panel on the dishwasher; the plaintiffs are requesting the court to order the defendant to deliver and install the missing panel. (See third revised and am. compl., first count ¶ 5(l)); The court finds for the plaintiff.
The defendant installed crown molding only on one-half of the kitchen wall; the plaintiffs are asking the court to exercise its best judgment as to damages. (See third revised and am. compl., first count ¶ 5(m).) At trial, the plaintiffs introduced, as exhibits 17 and 18, pictures of the kitchen addition, which show the area where the crown moldings were not installed. The parties' agreement provides that the defendant "will . . . supply . . . Crown Mouldings . . ." (See Pls.' Ex. 2). The court finds in favor of the plaintiff.
The defendant failed to adjust the sliding doors from the kitchen to the patio, which do not operate properly; the plaintiffs are asking the court to exercise its best judgment as to damages. (See third revised and am. compl, first count ¶ 5(o).) The court finds for the plaintiff.
A "kick-plate" is missing underneath the oven; the plaintiffs seek damages in the amount of $25-$30 (See third revised and am. compl., first count ¶ 5(j).) The court finds in favor of the plaintiff and awards the plaintiff the sum of $25.
For the crown molding, patio sliding door, front dishwasher panel, the court awards the plaintiff the total sum of $1,215 for these items.
With respect to the plaintiffs' claims as to the heat loss and the drainage problems, the court finds that the plaintiff has not satisfied its burden of proof and denies these two claims.
Accordingly, the court awards the plaintiff the sum of $2,000 for the above mentioned claims.
The defendant's counterclaim asserts that the plaintiffs failed to pay $20,970 due to the defendant for its services. Allegedly, the plaintiffs owe $4,375 of that amount for the work defendant performed on the patio of the plaintiffs' house. The defendant argues that such work was outside the scope of the parties' initial contract, and that the plaintiffs agreed to pay for it. The plaintiffs, who maintain that such cost was included in the initial contract price, disputed the evidence presented at trial with regard to this claim. In particular, during trial they argued that ¶ 7 of the agreement's standard terms and conditions requires change orders to be made in writing. (See Tr. 2/6/04 at 164.) The court finds that the defendant has proven this claim.
Second, the defendant is asking for $15,750, equal to the final installment that, under the parties' agreement, was due upon substantial completion of the contract items. The defendant argues that its work was substantially completed by the end of May 2001. Id. Finally, the defendant is requesting a payment of $850 for additional costs related to Leaders and Gutters. (See Def.'s Ex. D.) The court finds that the defendant substantially completed the work under the contract and awards the defendant the balance due of $15,570 together with the patio expense of $4,375 and $850 for the leaders and gutters.
The defendant maintains that as of September 30, 2004, the total debt of the plaintiffs, exclusive of attorneys fees and costs, amounts to $33,522.37.
Accordingly, the court awards the defendant the sum of $20,975 with respect to the above mentioned claims. Deducting the award to the plaintiff which is subtracted from the defendant's award, there is a net sum of $18,975 due and owing to the defendant. The court makes no award of interest to either party. The court will assign this matter for a hearing on attorneys fees at a date to be assigned.
GROGINS, J.