SAYATNOVA, LLC v. F. WILLIAM KOESTNER, JR

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4372-16T1

SAYAT NOVA, LLC,

        Plaintiff-Appellant,

v.

F. WILLIAM KOESTNER, JR.,

     Defendant-Respondent.
___________________________________

              Submitted February 26, 2018 – Decided March 20, 2018

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. L-
              7831-15.

              Ballon Stoll Bader & Nadler, PC, attorneys for
              appellant   (Kateryna   Stupnevich,   on   the
              briefs).

              Hueston McNulty, PC, attorneys for respondent
              (John F. Gaffney, on the brief).

PER CURIAM

        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.     Brill v. Guardian Life Ins.

Co. of Am., 
142 N.J. 520, 540 (1995).       For many years, plaintiff

has operated its restaurant in space it has leased from defendant.

On May 1, 2015, water from a third-floor apartment flooded the

restaurant.      Plaintiff alleges that defendant's negligence in

maintaining   the   building's   plumbing    caused    the   damage   that

plaintiff incurred from the flood.          According to the parties'

lease, defendant was not liable for any plumbing failures unless

"due to the negligence of the landlord, [or his] agents, servants

or employees."

     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

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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.1

Hagopian quoted Alcala to say, "We try to fix the fixture, and the

guy by mistake break the pipe."        The landlord then called in a

professional licensed plumber.         When asked what happened, the

plumber told Hagopian that "they burst the pipe." The water damage

forced plaintiff to close for several days for repairs.

     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.


1
  Hagopian testified that after Alcala spoke to the landlord, he
changed his story, and claimed that he was trying to fix a leak.
However, defendant admits in his statement of material facts that
Alcala "broke the pipe by mistake."

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     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

Rule 4:46-2(c).    Henry v. N.J. Dep't of Human Servs., 
204 N.J.
 320, 330 (2010).   We consider whether the evidence, in the light

most favorable to the non-moving party, "suff[ices] to permit a

rational factfinder to resolve the alleged disputed issue in [the

non-moving party's] favor."   Brill, 
142 N.J. at 540.   As applied

here, the issue is whether, absent expert testimony, a rational

jury could find defendant negligent.2   We conclude a jury could.

     Among other elements, plaintiff was obliged to prove that

defendant or his agents breached an existing duty of care.      See

Townsend v. Pierre, 
221 N.J. 36, 51 (2015) (stating elements of

negligence action).   As we recently explained, "expert testimony


2
  Plaintiff's contract claim also sounds in negligence, as the
lease relieves defendant of any liability for plumbing failures,
unless caused by its negligence or that of its "agents, servants
or employees."

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is not always required to assess whether a particular defendant

acted negligently."    Jacobs v. Jersey Cent. Power & Light Co., ___

N.J. Super. ___, ___ (App. Div. 2017) (slip op. at 18).     "The test

of need of expert testimony is whether the matter to be dealt with

is so esoteric that jurors of common judgment and experience cannot

form a valid judgment as to whether the conduct of the party was

reasonable."    Butler v. Acme Mkts., Inc., 
89 N.J. 270, 283 (1982).

     As we discussed in Jacobs, experts may be essential to assist

jurors in assessing whether a licensed professional has breached

a duty of care.    Id. at ___ (slip op. at 18).   Likewise, an expert

may be needed in a case involving a "complex instrumentality."

Id. at ___ (slip op. at 20).     On the other hand, a jury did not

need an expert to determine whether a utility failed to exercise

reasonable care in shielding the public from the danger of a hole

it left in the ground.    Id. at ___ (slip op. at 22).

     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.    See Dowler v. Boczkowski,


148 N.J. 512, 516 (1997) (stating "when the landlord voluntarily

undertakes to perform a repair, the landlord 'is obligated to

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perform the work in a reasonably careful manner and is liable in

damages for his failure to do so'" (quoting Bauer v. 141-149 Cedar

Lane Holding Co., 
24 N.J. 139, 145 (1957)).

      "Negligence may be established by proof of circumstances in

all cases."     Kahalili v. Rosecliff Realty, Inc., 
26 N.J. 595, 607

(1958).     While defendant may contend Alcala acted with reasonable

care,   a   jury   could    infer      the       opposite   conclusion    under      the

circumstances.     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 Alcala

apparently did not bother to empty the tub before working on it.3

A jury needs no expert to infer that was negligent.

      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




3
  He could have done so with buckets, draining it into a sink or
toilet.

                                             6                                 A-4372-16T1
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.         See Szalontai v. Yazbo's

Sports Café, 
183 N.J. 386, 398-400 (2005) (describing res ipsa

loquitur doctrine).       Simply put, a jury could infer that, more

likely than not, Alcala acted without reasonable care.          See id.

(noting that the res ipsa loquitur doctrine "'permits an inference

of negligence that can satisfy the plaintiff's burden of proof'"

and is available "'if it is more probable than not that the

defendant has been negligent'" (quoting Eaton v. Eaton, 
119 N.J.
 628, 638 (1990) and Myrlak v. Port Auth. of New York and New

Jersey, 
157 N.J. 84, 95 (1997))).        If defendant has evidence to

the contrary, defendant was obliged to present it.        See Kahalili,


26 N.J. at 607 (stating "in proper cases, the jury may be permitted

to   infer   negligence    from   the   accident   and   the   attending

circumstances in the absence of an explanation").

     Reversed and remanded.       We do not retain jurisdiction.




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