Opinion
No. CV 03 0082575 S
June 13, 2006
MEMORANDUM OF DECISION
The plaintiff, Alice Zaranka, brings the present action in one count against the defendant, James Rattell, in breach of contract and negligence. The dispute arises out of the plaintiff's dissatisfaction with a concrete patio and other work performed for her by the defendant. A trial to the court was held on October 6 and 7, 2005. On February 2, 2006, the plaintiff filed her post-trial brief and on February 3 and 17, 2006, the defendant submitted his briefs. In arriving at its decision, the court has reviewed the exhibits, has considered the testimony of the witnesses, has assessed their credibility, and has reviewed the post-trial memoranda of law filed by both parties. Based on the credible evidence, the court makes the following findings.
FACTUAL FINDINGS
On September 10, 2002, the plaintiff, Alice Zaranka, and the defendant, James Rattell (d/b/a JS Concrete Texturing), entered into a written contract for the removal of concrete stairs at the rear of plaintiff's home, and the installation of new stamped concrete stairs and a stamped concrete patio, with a contract price of $5,500.00. The contract contained a clause that "[w]alks and patios installed by the contractor are not guaranteed against cracking, raising, settling or sp[all]ing."
The defendant began the work on September 24, 2002. On October 10, 2002, the plaintiff requested certain changes to the contract, including increases in the size of the patio and the width of the stairs, and the installation of a pipe under the patio for drainage, and the parties executed an Additional Work Authorization to reflect the changes. The additional amount due was $1,293.80. The project was substantially completed, and on December 23, 2002, Zaranka paid Rattell in full. Sometime thereafter during the winter months, cracking appeared in Zaranka's patio. In April 2003, she contacted Rattell about the cracking. Since then, Zaranka has attributed various other problems, including water in her basement to deficiencies in Rattell's work. The parties were unable to amicably resolve the dispute and Zaranka filed suit in Superior Court on September 26, 2003. The defendant filed an answer to the complaint on February 3, 2004, denying the material allegations of the complaint.
DISCUSSION
"The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact . . . If there is conflicting evidence . . . the fact finder is free to determine which version of the event in question it finds most credible."(Citation omitted; internal quotation marks omitted). Hart v. Carruthers 77 Conn.App. 610, 617 (2003). "In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony." (Citations omitted; internal quotation marks omitted.) Jackson v. Commissioner of Correction. 68 Conn.App. 190, 194 (2002).
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 780-81 (2006). "[A] defendant may be liable in negligence for the breach of a duty that arises out of a contractual relationship." Neiditz v. Morton S. Fine Associates, Inc., 199 Conn. 683, 688 (1986). "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . If a plaintiff cannot prove all of those elements, the cause of action fails." Perry v. State, 94 Conn.App. 733, 738 (2006).
As a result of the contract between the parties, the defendant was charged with a duty to perform the work at plaintiff's home in a manner that a reasonably skilled builder of ordinary prudence would have exercised under the same or similar circumstances, Calderwood v. Bender, 189 Conn. 580, 584 (1983), and a recovery under either theory alleged by the plaintiff requires a finding that the defendant breached the duty to perform his services in a workmanlike manner. In support of both the negligence and breach of contract claims, plaintiff's complaint alleges that the defendant failed to carry out the services contracted for in a workmanlike manner by failing to lay the proper foundation for the patio, by attaching the patio with rods to a free standing garage, by failing to cut expansion joints when placing rods, and by using materials of lesser quality than contracted for. Complaint, paras. 7-11. Plaintiff alleges that these deficiencies caused the patio to crack, and a rerouted pipe to drain into plaintiff's cellar. Complaint, para 5. For the reasons hereinafter set forth, these claims were not proven.
The court is not permitted to decide issues outside of those raised in the pleadings. Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 414-15 (2005).
The standard of professional care that applies to a builder and whether this defendant failed to meet that standard in constructing a stamped concrete patio or an underground drainpipe are issues that go beyond the ordinary knowledge and experience of a layman, and the plaintiff offered no expert testimony to assist the court.
"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 (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 fact finder could not properly have inferred that fact." (Citations omitted; internal quotation marks omitted.) D'Esopo Co. v. Bleiler, 13 Conn.App. 621, 625-26 (1988).
"The requirement of expert testimony . . . serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard." Davis v. Margolis, 215 Conn. 408, 416 (1990). Expert testimony is required "when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." Bader v. United Orthodox Synagogue, 148 Conn. 449, 454 (1961). The existence of a duty on the part of Rattell, what that duty consisted of, what his obligations were to exercise due care and whether any breach of such duty caused the damages complained of are matters about which the court cannot speculate. In the absence of such evidence, it must be found that the plaintiff has failed to prove the allegations.
Even if expert testimony were not required on these issues; cf. Porter v. The Pequonnoc Manufacturing Co., 17 Conn. 243, 255-58 (1845) (lay opinion on sufficiency of dam permitted); the testimony of the plaintiff, and the lay opinions offered in her case are not persuasive; nor are they sufficient to establish that the defendant showed such an obvious and gross lack of skill that the neglect is clear even to a layperson. Cf. Paul v. Gordon, 58 Conn.App. 724, 727-28 (2000).
Zaranka testified as to a number of things that she believed that the defendant did improperly: (1) did not lay an adequate foundation before pouring the patio, (2) drilled T-bars into the foundations of the house and garage, causing cracks in the foundation, (3) laid pipe under the patio that did not drain properly, (4) did not use expansion joints to prevent cracking, and (5) "pitched" the patio so that water would run toward the house instead of toward the backyard, causing water to collect near the house's foundation, seep through the cracks, and damage Zaranka's basement.
The plaintiff testified that she believed that the defendant did not lay a proper foundation because he brought only a few shovelfuls of dirt to the work site. The court finds credible, however, the defendant's testimony that he laid down four yards of gravel prior to pouring the foundation, and that although a gravel foundation is an unnecessary prerequisite to pouring the patio, he nevertheless created one so that water seeping under the patio would filter through the gravel instead of freezing and expanding the patio. The contract is silent as to a patio foundation, and the plaintiff presented no credible evidence of the purported deficiencies in the foundation or that those deficiencies caused cracks in the patio or water in her basement.
The plaintiff also testified that the defendant improperly used steel "T-bars" in building the patio. She concluded that the bars, when drilled into the house and garage foundations, caused cracks in the foundations and led to water seepage into her basement.
While the plaintiff erroneously used the term "T-bar," various other witnesses, including the defendant, referred to the steel rods in question as "rebar."
The contract entered into by the parties explicitly provides for the use of rebar in constructing the patio, and although the plaintiff testified that she did not want rebar used, she observed the defendant installing rebar and did not stop him from continuing the job.
The court credits defendant's testimony regarding the use of rebar to prevent the patio from rising and settling while still allowing movement from side to side it as it naturally expands and contracts. The court notes that plaintiff's own exhibit, a quote from another home improvement contractor introduced to illustrate the costs of replacing the patio, delineates the use of rebar for the patio. Moreover, as the plaintiff did not proffer any credible evidence to support her contention that drilling into the foundations was improper, the court is left with insufficient evidence with which to determine whether the defendant negligently utilized steel bars in the construction of the plaintiff's patio, and the plaintiff did not meet her burden on this issue.
The plaintiff claims that the water in her basement resulted from the malfunctioning underground drainpipe that the defendant installed but offered no evidence about the condition of the pipe or how it malfunctioned, or how the pipe deviated from the specifications contained in the additional work order. The defendant testified that he tested the drainpipe on two different occasions, most recently about a week before the commencement of trial, and that it worked properly. Absent evidence on how this drainpipe caused basement water seepage and a crack in the patio, the plaintiff has not proven her claims.
The plaintiff also claims that the patio is improperly "pitched," that is, tilted toward the house, causing water to puddle by the house and seep into the basement. Home improvement contractor William Bayer testified on behalf of the plaintiff that he observed that the patio had "a slope back towards the house and back towards the garage." In response, both the defendant and home improvement contractor William Hemingway testified that they observed that the pitch of the patio directed water away from the house's foundation. While the court does not require expert testimony to understand that that water generally flows downhill, the plaintiff did not present evidence that the patio pitch was improper and that the impropriety caused the seepage into the basement. The plaintiff further testified that a sump pump was in the basement at the time she purchased the house approximately four years ago, that the sump pump occasionally operated in her basement during the winters before the defendant did any work for her, and that it was her understanding that sump pumps were originally installed in of all of the houses on her street to prevent basement flooding from a nearby brook. Based on the evidence, and in the absence of any expert testimony, the court is unable to deduce whether the basement water problems are a result of the patio's pitch, the drainpipe, or some other phenomenon.
Finally, the plaintiff points to cracking in the patio as evidence that the defendant breached their contract and negligently performed his job. The contract, however, explicitly denies warranting against cracks. The defendant contends that a certain amount of cracking is to be expected in a poured concrete patio; moreover, the plaintiff's own witness, contractor Louis Mayo, testified that no one can guarantee against a patio cracking in New England. Further, the plaintiff offered no evidence, other than her opinion, on the proper use of expansion joints in preparing the patio and how a lack thereof, or an improper use or installation by the defendant caused cracking or other problems. The court observed some patio cracking in the photographs offered by the parties, but in the absence of expert testimony, can only speculate as to whether the cracks resulted from a breach of a duty to install the patio in a workmanlike manner, or even whether they are outside the acceptable norm for the industry. This the court is unable to do. See, Garguilo Construction. Inc. v. Consulting Engineers, P.C., Superior Court, judicial district of New Haven, Docket No. CV 99 0427426 (October 25, 2002, Zoarski, J.) ("The preparation, design and drawings relating to . . . concrete require[s] technical expertise beyond the ordinary knowledge and experience of a judge. Therefore to prove professional negligence, expert testimony [is] required; See also Empire Paving, Inc. v. Staddle Brook Development, Inc., Superior Court, judicial district of New Haven, Docket No. CV ____ 0381732 (January 28, 1998, Blue, J.) ("No expert testimony on the cause of the cracking was submitted by either party, and in the absence of such testimony the court can only speculate as to the cause. Under these circumstances, Staddle Brook cannot meet its burden of proof on this issue.") Accordingly, the plaintiff did not meet her burden of proof on this issue.