Day on Torts
The Court of Appeals recently held that “expert testimony is required to establish a water distributor’s applicable duty of care and breach of the same[.]”
In Tolliver v. Tellico Village Property Owners Assoc., Inc., No. E2018-00090-COA-R3-CV (Tenn. Ct. App. Jan. 7, 2019), plaintiffs were property owners whose house was damaged when a water pipeline broke. At the time of the damage a renter was living in the home, and the renter initiated this action, with plaintiff property owners joining later and asserting claims for negligence and breach of contract. Plaintiffs alleged that defendant homeowners association was negligent for “failing to properly maintain the water pipeline.” The renter consented to a judgment for defendants on his claims, leaving only the property owners as plaintiffs.
The trial court ultimately dismissed plaintiffs’ negligence claim based on a statute of limitations argument, and granted summary judgment for defendant on the breach of contract claim. The Court of Appeals affirmed dismissal of the negligence claim, but on different grounds, and reversed summary judgment on the breach of contract claim (finding that a jury could have found an oral contract to exist).
The Court of Appeals first looked at whether plaintiff property owners’ negligence claim was barred by the applicable statute of limitations, which is three years for cases for injuries to real property. (Tenn. Code Ann. § 28-3-105). The cause of action here accrued on July 16, 2014, which was the day the water pipeline broke, and plaintiffs did not file their complaint in this case until August 23, 2017. Plaintiffs alleged, though, and the Court of Appeals agreed, that plaintiffs’ complaint related back to the filing by the renter, who was the initial plaintiff and filed a timely claim, pursuant to Tennessee Rule of Civil Procedure 15. The Court ruled that plaintiffs’ new complaint “was, in reality, an amendment to [the renter’s] existing complaint,” as it was filed under the same docket number and was filed pursuant to an agreed order that “realigned [the owners] as plaintiffs, in the existing lawsuit.” The Court noted that Rule 15.03 requires an amendment that relates back to arise out of the same “conduct, transaction, or occurrence” as the original filing, which the Court found to be “easily satisfied” here, as the both filings arose out of the broken water pipeline.
The Court conceded that much of Rule 15.03 is written in a way that makes more sense when applied to new defendants, but stated that the court has “consistently held…that Rule 15.03 also permits the relation back of amendments adding or substituting proper party plaintiffs, even after the expiration of the statute of limitations.” (internal citation omitted). When the relation back is for a plaintiff, it should be “permitted when (1) the defendant received adequate notice of the claim against him; (2) the relation back of such amendment would not unfairly prejudice the defendant; and (3) there is an identity of interest between the original party plaintiff and the new party plaintiff.” (internal citation omitted). The Court ruled that all three of these factors were satisfied in this case, as the defendant had been on notice of the claim regarding the water main break since the filing of the renter’s complaint, the complaint from the new plaintiffs made no additional allegations, the defendant knew that the owners were joining as plaintiffs before the statute of limitations ran, and both the original plaintiff and the new plaintiffs had an interest in the same parcel of land, and thus had interests that were “virtually indistinguishable.” Accordingly, the Court ruled that the negligence claim was not barred by the statute of limitations.
Despite a favorable statute of limitations finding, the Court ultimately affirmed the dismissal of the negligence claim, ruling that the trial court should have dismissed it pursuant to defendant’s motion for summary judgment. The Court determined that “premature dismissal under Rule 12.02(6) is harmless error if, at the time of the trial court’s ruling, (1) there was a pending motion for summary judgment, (2) the non-moving party had a full and fair opportunity to respond, and (3) summary judgment is appropriate as a matter of law,” all of which were true here.
In its summary judgment motion and on appeal, defendant asserted that plaintiffs’ allegation that the defendants owed a general duty of care to “maintain, repair, service, troubleshoot, and generally keep the water pipelines in good and working order” was not sufficient to prove their case. Instead, defendant argued that plaintiffs “were required to identify an individual who could provide expert testimony regarding defendant’s specific duty of care as an entity entrusted with maintaining a water distribution system.” The Court stated that “whether expert testimony is required to establish a water distributor’s applicable duty of care and breach of the same appears to be a matter of first impression in this state,” and ultimately agreed with defendants that an expert was required.
The Court looked at cases in several other states which have required expert testimony in similar cases, quoting extensively from a Utah case that found that “the repair/replace decision is inherently complex and case-specific, requiring the detail necessary to perform the cost-benefit calculus and the sophistication necessary to interpret it. In the absence of expert assistance, jurors would not likely possess the information or understanding necessary to make such assessments…” (internal citation omitted). The Court of Appeals ultimately agreed with this analysis, holding that “a plaintiff must ordinarily present expert testimony of a water distributor’s applicable duty of care in order to survive summary judgment.” Here, plaintiff presented no such proof and did not submit an affidavit explaining a need for further discovery, so the Court ruled that summary judgment in favor of defendant was appropriate.
While this case is very fact-specific, it is a crucial read for any attorney bringing a negligence claim against a water distributor. According to this reasoning, such a claim will almost always have to be supported by expert testimony to be sustainable.