13 Conn. App. 621 | Conn. App. Ct. | 1988
The plaintiff appeals, after a trial to the court, from a judgment in the amount of $6300 rendered in favor of the defendants on their counterclaim alleging that the plaintiff negligently discharged its responsibility to install adequate subflooring in their home. The plaintiff challenges (1) the trial court’s conclusion that a builder who has properly followed plans and specifications supplied by the homeowner or his
In its memorandum of decision, the trial court found the following facts. The parties entered into a written contract in which the plaintiff, a general contractor, agreed to build a house for the defendants. The defendants’ architect supplied the plans and specifications for the house, to which some change orders were made. The original plans and specifications supplied by the architect called for vinyl flooring in certain areas of the house. After the plywood subflooring was installed, the defendants and their architect decided to change the floor covering in those areas from vinyl to ceramic tile. The architect did not alter the plans for the subflooring when the change to ceramic tile was made. After the job was completed, cracks developed in the tile floors. The plaintiff’s president testified at trial that he now believes that another layer of plywood subflooring would have prevented the cracking of the tiles, although no one suggested this to him before the work was done. The court concluded that it was the plaintiff’s responsibility to assure adequate preparation of the floor on which the tile was installed and that the plaintiff had failed to do so.
In an articulation, the court set forth, inter alia, the following additional findings and conclusions: “[I]t was
The plaintiff claims that his failure to inquire whether additional subflooring was necessary cannot be a basis of liability when his work followed the plans and specifications provided by the defendants’ architect, and that there was no evidence that he failed to construct the subflooring in accordance with those plans. We agree.
“[T]he rule has become well settled in practically every American jurisdiction in which the matter has been involved, that a construction contractor who has followed plans or specifications furnished by the contractee, his architect, or engineer, and which have proved to be defective or insufficient, will not be responsible to the contractee for loss or damage which results, at least after the work is completed, solely from the defective or insufficient plans or specifications, in the
Therefore, the trial court could not have based its finding of liability upon damage which developed as a result of the plaintiffs compliance with, and its failure to question, the specifications provided by the defendants. Under the circumstances of this case, then, the plaintiff’s liability could properly be based only upon an adequately supported finding of negligence of the plaintiff in securing the plywood subflooring.
The court found in effect that the plaintiff was negligent in that “the subflooring was inadequately secured, allowing it to lift up at its seams.” The plaintiff, however, challenges this finding of fact as lacking any support in the evidence. In examining whether this finding may properly support the court’s legal conclusion, we must “determine whether there is evidence to support the finding. If not, the finding is clearly erroneous.” Buddenhagen v. Luque, 10 Conn. App. 41, 45, 521 A.2d 221 (1987).
All of the evidence adduced at trial indicated that the subflooring was built in accordance with the specifications, and that the cause of the cracking in the tile was that additional plywood subflooring should have been included in the architect’s plans, and thus in the sub-floor, in order to provide additional strength to support the tile flooring. A review of the transcript makes
Only Harold Epstein, the defendants’ expert witness on the issue of cost of repair damages, provided testimony arguably which supports the court’s finding regarding movement in the subflooring. On cross-examination, and over the objection by the defendants,
Without any expert testimony suggesting that the floor was inadequately secured or that an inadequately secured flooring was the cause of the damage to the tiles, the trial court’s finding in this regard was clearly erroneous. Under the facts of this case, in the absence of expert testimony explaining how the work performed by the plaintiff failed to comply with “that degree of
There is error, the judgment on the defendant’s counterclaim is set aside and the case is remanded with direction to render judgment for the plaintiff on the defendants’ counterclaim.
In this opinion the other judges concurred.
Because the trial court’s finding of liability is erroneous, requiring our direction of judgment in the plaintiff’s favor, we need not address the plaintiff’s claim of error on the issue of damages.
The defendants’ counsel objected to any questions asked of Epstein regarding the condition of the subfloor, noting that Epstein “hasn’t been called here as an expert in this case on the cause of what happened to the floor but only to the price.”