Jury Verdict Reversed Due to Lack of Precision Tying Damages to Defect
Kegler Brown Construction Newsletter August 1, 2018
A recent Franklin County case dealt with a hotel owner’s costs and damages to repair and remediate water damage that the hotel experienced after opening. The owner sued the contractor, who added all the subs, some of whom settled before trial.
The owner’s expert identified the contractor’s failure to install sheet metal flashing as a deficiency and breach that led to water damage consistent with what the hotel was experiencing. But he also identified four other deficiencies and “did not designate any of the five deficiencies, whether alone or in combination, as the probable cause of [the owner’s] damages.”
The 10th District Court of Appeals (Judge Klatt) REVERSED the jury verdict, holding that the defendant contractor was entitled to a directed verdict because the owner’s expert “never portioned responsibility for the water damage among the deficiencies…” Claris, Ltd. v. Hotel Dev. Servs., LLC, 2018-Ohio-2602.
The 10th District Court went on to state that “consequently, the evidence does not establish [the contractor’s] breach-the failure to install sheet-metal flashing- as a substantial factor in causing the water damage. In sum, the expert testimony [the owner] adduced regarding causation is insufficient to prove that a breach of the construction contract resulted in the water damage to the hotel. [The expert] failed to express his opinions in terms of probability, and he failed to identify the lack of sheet metal flashing as a substantial factor in bringing about [the owner’s] damages. Therefore, [the expert’s] testimony does not establish causation.”
The Court explained that ‘when the plaintiff’s total injury may have been the result of many factors, in addition to the defendant’s breach of contract, the plaintiff, in order to establish injury, must show that the defendant’s breach was a substantial factor in causing the injury.’
The court emphasized that the party seeking to recover for breach of contract has the burden of proving EACH element of its claim. Here, though, the Court noted that the owner “wants us to create a rebuttable presumption that once a plaintiff demonstrates a breach of contract, it is entitled to recover damages unless the defendant shows the breach did not cause those damages. Such a presumption does not exist in contract law. A plaintiff may not recover upon the weakness of the defense’s evidence, but upon the strength of its own proof.”
This decision emphasizes the importance of testimony – particularly expert testimony – directly connecting the damages suffered to the specific defect or deviation in the plans/specs. When the work of multiple subcontractors or trades are involved, or there are multiple factors contributing to the problem, it is not enough to lump them all together without a specific causal connection. The case ultimately failed because the plaintiff owner failed to prove that the non-conforming work caused the water damage.