In a recent decision touching on many interesting issues, North Carolina’s Court of Appeals effectively determined that, in all but the most obvious cases, expert testimony is required to establish a failure to perform construction in a workmanlike fashion.
In Dan King Plumbing Heating & Air Conditioning, LLC v. Harrison, 20221-NCCOA-27, a plumbing and HVAC contractor entered into two contracts with the defendant – one for plumbing work and one for HVAC work. The contractor filed suit to recover money owing under the contracts, and the defendant filed a number of counterclaims based on breach of contract and alleged misrepresentations. One of the breach of contract claims alleged that the contractor failed to perform the plumbing work in a “workmanlike fashion” – essentially that the contractor’s work was defective and, therefore, had not fulfilled its obligations under the contract. The case initially started in small claims court – the contractor sued for less than $4,000. After losing in small claims court, the contractor appealed to district court, where the homeowner filed his counterclaims and obtained a jury verdict in his favor in excess of $30,000. Apart from any legal analysis, this case stands as a good reminder that even “small” cases can quickly take on a life of their own, well beyond what the plaintiff may have anticipated at the outset.
At trial, the homeowner relied upon his own testimony and several pictures of the plumbing to establish his claim for defective work. The contractor requested that the court direct a verdict in its favor on this particular claim, arguing that the homeowner was required to provide expert testimony to establish his claim and, having failed to do so, was not entitled to have the jury decide the issue. In general, to establish a claim for faulty workmanship, the pleading must allege how it was faulty and requires the party alleging the breach to show that the contractor or builder did not use the “customary standard of skill and care” in the particular industry, location, and time-frame in which the construction occurs. In this case, the contractor argued that establishing a failure to abide by the customary standard of skill and care necessarily requires expert testimony regarding exactly what that standard of care is. The homeowner argued in response that whether the work was deficient did not require an expert and is something that a jury could determine on its own. The trial court denied the contractor’s motion, and the jury returned a verdict in favor of the homeowner. Each party appealed various aspects of the case.
On appeal, the contractor essentially argued that these construction cases are like a medical or legal malpractice case, where there ordinarily must be some expert that testifies regarding the standard that a doctor or lawyer should meet in a given situation. The Court of Appeals noted that general rule requires expert testimony in cases like this and discussed the “common knowledge” exception o the general rule. That exception applies in situations where “the workmanship is so grossly subpar that it is obvious to any layperson that the work does not live up to a professional standard of care.” In those cases, expert testimony would not be required. The court then provided two analogies – the work must be the construction equivalent of a surgeon leaving a sponge inside a patient on the operating table or a lawyer being ignorant of the applicable statute of limitations.
The court then reviewed the twelve photographs the owner had introduced into evidence and concluded that they were insufficient to indicate to a layperson that the plumbing work was obviously or grossly defective. As a result, the common knowledge exception did not apply, expert testimony was required, and the contractor was entitled to judgment in its favor on this claim because the homeowner had failed to offer any expert evidence.
The court also ruled on several other issues, including unfair trade practices and issues of civil procedure. The court examined the requirement of “aggravating factors” in order for a breach of contract to reach the level of an unfair trade practice. The court examined whether the homeowner had relied on any alleged misrepresentation and concluded he had not and could therefore not establish a claim for unfair trade practices on those grounds. The court also reviewed the trial court’s refusal to introduce certain evidence and the ordering of arguments at the trial. While these issues are undoubtedly important, the primary takeaway for those in the construction industry is that expert testimony will be required to prove workmanship claims in all but the most egregious cases. Of course, this also means that defending such claims will often require retaining an expert as well.
Joe Davies is a certified superior court mediator and member of the firm’s construction law group and has an extensive background in lien filings and construction litigation. He represents construction companies and small business owners in lease negotiations and complex litigation matters. His clients include general contractors and subcontractors, as well as property managers, landlords, commercial tenants, equipment rental companies, and building material suppliers....LEARN MORE