Last month, an appellate panel addressed the question of whether an expert witness was needed to establish damages in a construction case.

In that case, a homeowner engaged a home improvement contractor to build an addition on her home. The job was completed in 2003. Sometimes in 2007, the roof began to leak.  Thereafter, the contractor returned to the home at least four times in a 15 month periods to repair the roof.   On the last occasion, he removed all of the shingles on that part of the roof that he thought was causing the leak and replaced some of the flashing. The roof continued to leak, however.  At that point, the homeowner obtained estimates from four other roofers, and then sued the contractor.

During a pretrial mediation session, the estimates were reviewed by the contractor.  Notably,  they were not offered into evidence at trial.  Ultimately, the trial court, sitting without a jury, determined that the contractor had breached its contract, and that damages should be awarded to the homeowner in the amount of $2,000. In rendering his decision, the court noted that plaintiff’s estimates were “ kind of all over the place". Parenthetically, the case did not identify how the trial court made these observations when the estimates were not placed into evidence.

The contractor appealed the decision and argued that the estimates were inadmissible hearsay and that plaintiff could not prove damages because an expert witness did not establish his fault. In reversing the trial court's decision, the Appellate Division concluded that the court below did not provide an adequate explanation as to how the damage figure was computed, placing special emphasis on the trial court's observation that the estimates were “all over the place." Unfortunately, it did not specifically address the contention of the contractor, as to whether estimates could be used as evidence to establish damages.

Although the Appellate Division reversed the trial court's decision because of the damage issue it, continued to analyze the question of whether an expert was needed to establish fault. In that regard, the court said that experts are not required to establish appropriate professional standards, where either the doctrine of common knowledge or res ipsa loquitur apply. As to the former, the court observed that the common knowledge doctrine applies when a lay person can determine whether a standard had been breached without assistance of an expert witness. As to the issue of res ipsa loquitur, the court recognized that the doctrine applied where: (a) events generally “bespeaks" of negligence; (b) the instrument used in the conduct was within the exclusive control of the defendant; and, (c) no evidence existed that the negligence resulted from the plaintiff's conduct. Grounded upon these observations, the court concluded that both doctrines did not require the homeowner to produce expert witnesses in the context of the case.