No Expert Needed When Party’s Attempt To Fix Clogged Tub “Bespeaks Negligence”

Plumbing (pd)by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Although I have been a homeowner for a number of years and like to think that I am reasonably handy, my knowledge of plumbing  is probably more informed by Mario Brothers than anything else. As the saying goes, I know just enough about the subject to be dangerous, so I generally try to avoid it. One of the parties in a recent Appellate Division decision, Sayat Nova, LLC v. Koestner, probably would have been better served heading this advice, as the Appellate Division held that no expert was needed to show that it acted negligently when it broke a pipe in a clogged tub that caused flooding in a restaurant several floors down.

In Sayat Nova, plaintiff operated a restaurant in defendant's building. After water from a third-floor apartment came flooding like a "waterfall" out of the ceiling and into the restaurant, plaintiff sued. The incident that precipitated the lawsuit was not the first time that the restaurant flooded. Four times in the previous three years, water entered the restaurant from the same general area in the ceiling. Each incident "involved more water and more damage than the previous incident." Each time plaintiff notified defendant, but never received a response. On one prior occasion, after receiving no response from defendant, plaintiff hired contractors at his own expense to repair the damage. Plaintiff was never compensated for these expenses or any losses caused by the prior incidents. 

In the incident that led to the complaint, water came into plaintiff's restaurant from the ceiling above a different area of the restaurant than in prior incidents. Moments after plaintiff noticed the intrusion, the building's superintendent entered the restaurant with a man plaintiff did not know. Neither man was a licensed plumber. The superintendent told plaintiff: "By mistake we broke the pipe . . . We try to fix the fixture, and the guy by mistake break the pipe." He was apparently referring to a pipe in a third-floor apartment with a "hair-clogged tub." After the incident, defendant called a licensed plumber to fix the problem, but the damage caused plaintiff to have to close his restaurant several days for repairs.

Under the lease between the parties, defendant was not liable for any plumbing failures unless they were "due to the negligence of the landlord, or his agents, servants or employees." After discovery, defendant moved for summary judgment, arguing that plaintiff needed an expert to prove that defendant was negligent in the repair or maintenance of the plumbing that failed. Plaintiff argued that the jury could infer negligence from the prior incidents and the superintendent's admission that the pipe broke "by mistake." The trial court agreed with defendant and dismissed the complaint. Plaintiff appealed. 

On appeal, the Appellate Division reversed the trial court. It first recited the test for when expert testimony is required. When matters are "so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of [a] party was reasonable," you need an expert. Experts are particularly helpful to jurors when "assessing whether a licensed professional has breached a duty of care," and when "a complex instrumentality" is involved. But, for example, an expert is not needed "to determine whether a utility failed to exercise reasonable care in shielding the public from the danger of a hole in it left in the ground."

Applying this standard, the Appellate Division held that plaintiff did not need an expert to proved that defendant was negligent. Although an expert "would be helpful," the jury could rely on its own common knowledge and experience to determine whether defendant was negligent. Showing more knowledge of basic plumbing that I possess, the Appellate Division held:

Based on defendant's assertion that the water came from a clogged bathtub, a jury could surmise that the problem was not a pipe that supplied water, but a pipe that drained water. Presuming the flood was caused by breaking a drain pipe, then the water must have come from a full tub. That suggests that [the superintendent] apparently did not bother to empty the tub before working on it. A jury needs no expert to infer that was negligent.

The Appellate Division also held that plaintiff need not prove exactly what kind of pipe of fixture broke, or exactly how it broke:

[The superintendent] and his cohort were not licensed plumbers. Rather than call one, they attempted to clear the clog themselves – something familiar to every do-it-yourself homeowner with a plunger. Yet, presumably outside the average homeowner's experience, [the superintendent] and his cohort evidently used a tool or otherwise exerted such force on a pipe that it burst . . . Plaintiff was not obliged to establish exactly how [the superintendent] broke the pipe – whether he used the wrong tool, or used the right tool wrongly – to establish that he did so without reasonable care. The occurrence bespeaks negligence. Simply put, a jury could infer that, more likely than not, [the superintendent] acted without reasonable care.

As a result, the Appellate Division reversed the trial court, holding that defendant's summary judgment motion should not have been granted and that, if defendant has evidence that it was not negligent, it was "obliged to present it" on remand.

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