Herkimer Hot Water Heater Hubbub

This was originally published on the SGR Blog.

Trial Court Decides Liability for Damages

Terrence M. Kalka filed suit in the City Court of Little Falls, Herkimer County, on August 18, 2021, seeking $4,975 in damages against Ronald Schorer and John Lerch. Schorer filed a counterclaim against Kalka on October 5, 2021 seeking $2,172 pursuant to a contract. The matter proceeded to trial on March 17, 2022 and was concluded on April 8, 2022.

Kalka and his spouse appeared and testified that he retained the services of Schorer/Lerch to replace the hot water heater and install a water softener. They negligently installed the heater causing damage to the plumbing, as well as water damage in the basement. The testimony was that the water was leaking from the main line for over an hour which flooded the basement causing damage to stored items in the basement, such as the Kalka’s clothing. Kalka testified that Schorer/Lerch damaged a sink in the basement and dirty water in the pipes clogged the kitchen sink, toilet, and washer as a result of negligently installing a hot water heater and water softener. Kalka testified that Schorer was present during that time, stayed upstairs, and was consulted periodically by Lerch about how to handle various situations that came up during the course of the work. The testimony was also that Schorer was present as the Village of Ilion repaired the water valve.

Kalka testified that he engaged the services of a different plumber, BMR Contracting, to finish the installation of the water softener, replace the pipes in the basement, replace kitchen faucet, install a new fill valve in the toilet, and finish some wiring. The non-itemized bill for these services was $5,700. But Kalka did not call BMR Contracting as a witness.

Schorer/Lerch admitted the following exhibits: a receipt from BMR Contracting for $5,7002, a business card from BMR Contracting, a checkbook copy of check number 2595 in the amount of $2,700 payable to John Lerch, a receipt from Village of Ilion in the amount of $375 for water repair, a receipt from Lowes in the amount of $74.69 for a faucet, a receipt from Amazon in the amount of $68.19 for a closet, a picture of the broken sink in the basement, a picture of plumbing in the basement, a picture of bare wires, a picture of an electrical box, price details for water heater and softener, a bill from Schorer directing Kalka to make payment to Lerch in the amount of $1,800.13, a printout from Kalka’s bank showing that check number 2595 in the amount of $2,700 was cashed, and a call log between Kalka and Schorer.

Schorer appeared and testified that he was acting exclusively as a referral agent and should not be responsible for the work performed by Lerch. Schorer testified that he made it clear that he was no longer in the business, gave referrals to plumbers Schorrt and Lerch, and only showed up with Lerch because he liked to get out for something to do.

Schorer called Peter Pisciotta, Jr. as a witness who testified that he was helping his friend Lerch and gave general testimony about the events that happened that day.

The Court adjudicated the claims in such manner as to do substantial justice between the parties according to the rules of substantive law.

It was uncontroverted that, at that time of the filing, Lerch was a resident of Oneida County and did not have a primary place of business in Herkimer County. Accordingly, the Court on its own motion dismissed the matter as it related to Lerch because the Court lacked the jurisdiction to hear claims when they related to a defendant that resided outside the county. The Court also dismissed Schorer’s counter-claim because he did not submit any evidence to support his claim.

Before addressing the issue of liability, the Court first addressed the relationship between Schorer and Lerch because Schorer could not be liable if he was merely a referral agency. The touchstone of employment is control over the results produced and means employed. The Court found that Schorer not only made the referral to Lerch, but he also showed up to the work site, stayed for the duration of the work, and reviewed pictures from, and gave guidance to, Lerch. Schorer also followed up with mailing an invoice to Kalka. Although that invoice directed payment should be made to Lerch, it was another piece of evidence that tied the two parties together in some form of business relationship. Based on all of the evidence presented, the Court found that Schorer exercised a sufficient degree of control over Lerch beyond merely providing a referral, and found that Kalka had established sufficient evidence of an employment relationship under the law between Schorer and Lerch.

The next issue before the Court was the liability for damages to the home’s plumbing, damage to items of personal property in the basement, the cost to complete the installation of the water softener, the fees to the village, and other consequential damages.

It was difficult for the Court to ascertain damages on the evidence that was presented. Expert testimony was especially critical in plumbing cases. The mere possibility, or even probability, that Schorer’s acts or omissions may have been the proximate cause of the damage complained of, was not sufficient to fasten liability upon him. But there were several possible causes of injury, for one or more of which Schorer or Lerch was not responsible. Kalka could not recover without proving that the injury was sustained wholly or in part by a cause for which Schorer or Lerch was responsible.

On the one hand, the damage could very well have been the result of Schorer/Lerch not properly shutting the water off at the main valve before commencing work. It might also be the result of their improperly installing the water heater and softener. On the other hand, the home was not a new home. The sink in the basement showed substantial wear and appeared that it may have broken by any repair that was made to it. The Court did not review any pictures before the work on the pipes was conducted, but it was certainly possible that the pipes would have started leaking had the most capable plumber started work. The invoice from BMR contracting indicated that all the pipes in the basement had to be replaced because of the work of the prior contactor. While that might be the case, it was also a self-serving statement on the behalf of BMR Contracting who oddly enough wasn’t called as a witness.

Having assessed all the evidence, the Court found that Schorer was liable for the damage to Kalka’s home by negligently installing the water heater and softener as well as failing to complete the installation of the water softener.

The Court was not convinced that Schorer was liable for replacing all the plumbing in the home, Kalka’s clothes, or the kitchen faucet. There must be some limit to the damages. If the injury is not so great as to make the reparation or restoration of the property unreasonable or out of proportion to the condition and value before the injury, the reasonable cost of repairs necessary to put the article in the condition in which it was before the injury would be considered the proper measure of damages.

Indeed, in a given case, the cost of repairs which restore the property to its former condition may well be the best criterion of diminution in value. However, recovery on the basis of the reasonable cost of repairs to restore the property to its former condition is permitted subject to two limitations that: (1) the cost of repairs must be less than the diminution in the market value due to the injury; and (2) the repairs must not exceed the value of the property as it was before the injury. Kalka was not entitled to benefit by the loss. Where repairs place the property in a better condition than before the accident, the increased value of the repaired article above its value before the accident may be deducted from the cost of repairs.

In the absence of an itemized bill from the second plumber, the absence of the second plumber’s own in court testimony, or any other credible evidence regarding the extent to which all the pipes in the home needed to be replaced, the Court discounted the amount of Kalka’s claim to $2,500.

The petition as it related to Lerch was dismissed. Schorer’s counter-claim was dismissed based on insufficient evidence. Judgment was entered in favor of Kalka and against Schorer in the amount of $2,500.

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