NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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Plaintiff appeals from the summary judgment dismissal of its negligence complaint, seeking damages arising out of a plumbing failure in defendant's building, which flooded plaintiff's restaurant. We reverse.
We discern the following facts from the record, extending to plaintiff all favorable inferences.
The May 2015 incident was not the first time the building's plumbing failed. Four times, between 2010 and 2013, water entered the restaurant from the ceiling in the same general area, near a stage. The first time, a tenant was able to shut off the water before substantial damage was done. Each successive incident involved more water and more damage than the previous incident. Plaintiff's managing member, Shahe Hagopian, notified the landlord each time. In 2012, Hagopian hired contractors to make repairs because of the landlord's unresponsiveness. The landlord never compensated plaintiff for the resulting losses.
In the incident that gives rise to plaintiff's complaint, water entered like a "waterfall," according to Hagopian, from the ceiling above a different area of the restaurant. Moments later, the building's superintendent, Eddy Alcala, entered the restaurant with a man unfamiliar to Hagopian. Alcala was not a licensed plumber. Hagopian asked if his companion was one. Alcala replied, "No, no, no. I'm sorry. By mistake we broke the pipe." He was apparently referring to a pipe in a third-floor apartment with a hair-clogged tub. Defendant admitted the water came from there.
Thereafter, plaintiff filed its complaint alleging negligence and breach of contract. Plaintiff claimed over $65,000 in damages consisting of repair costs, replacement of damaged chairs and fixtures, and lost income from cancelled parties and from past and future closures, including an anticipated thirty-day period for mold prevention work. After a period of discovery, defendant filed its motion for summary judgment, and plaintiff filed a cross-motion on the issue of liability.
The court granted the former, and denied the latter. The court held that plaintiff needed an expert to establish that defendant was negligent in the repair and maintenance of the plumbing that failed. The court rejected plaintiff's argument that a reasonable jury could infer negligence from the five plumbing failures in five years, and from Alcala's admissions that he broke the pipe "by mistake."
In considering plaintiff's appeal from the grant of summary judgment, we employ the same standard as the motion judge under
Among other elements, plaintiff was obliged to prove that defendant or his agents breached an existing duty of care.
As we discussed in
Applying this standard, we conclude that while an expert would be helpful, a jury may rely on its own common knowledge and experience to determine that defendant or his agent breached a duty of care. Once Alcala and his anonymous cohort attempted to repair the clogged tub in the third-floor apartment, they were obliged to do so with reasonable care.
"Negligence may be established by proof of circumstances in all cases."
However, a jury need not determine exactly what kind of pipe or fixture broke. Alcala 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, Alcala and his cohort evidently used a tool or otherwise exerted such force on a pipe that it burst. Alcala admitted they made a "mistake."
Plaintiff was not obliged to establish exactly how Alcala broke the pipe — whether he used the wrong tool, or used the right tool wrongly — to establish he did so without reasonable care. The occurrence bespeaks negligence.
Reversed and remanded. We do not retain jurisdiction.