Fabio Mangione v. Anthony V. Giordano (2013)

MEMORANDUM OF DECISION

The captioned case involves a dispute between a homeowner and a professional engineer arising out of a foundation design for an addition of a garage and deck onto an existing home in East Haven.   The trial occurred in the New Haven Superior Court on January 26, 27 and 28, 2013.   On April 5, 2013, counsel filed simultaneous post-trial briefs.

The writ, summons and complaint in the instant matter were filed in May of 2008.   The Complaint sounds to Two Counts:  Negligence and Breach of Implied Warranty.   The defendant filed a January 6, 2009 Answer with Five Special Defenses.   The first two Special Defenses address the negligence and assert the plaintiff was comparatively negligent, the First Special Defense, and/or that the plaintiff's negligence exceeded the “liability” (sic) of the defendant, ¶ 5 of the Second Special Defense.   The defendant asserted three Special Defenses to the Breach of Implied Warranty claim:  that the plaintiff breached the agreement with the defendant by withholding engineering reports, and by overloading the deck with “a substantial masonry structure not contemplated in the original design requirements”;  that the agreement between the parties did not include the work alleged to have been performed incorrectly;  and/or that the plaintiff's acts of withholding engineering reports, overloading the deck, hiring others to perform work that the defendant was not hired to perform, excused the performance by the defendant and one or more of these acts or omissions voided any expressed or implied warranties of the original plans furnished by the defendant to the plaintiff.

On April 17, 2012, the plaintiff replied to the defendant's Special Defenses, denying each and every allegation therein.   The pleadings were closed.

At the trial of the case, witnesses included Ricky Raymond, identified as a project manager for Anthony Giordano, Anthony Giordano, the defendant, Ricardo Mangione, brother of the plaintiff, Fabio Mangione, the plaintiff, Frank Marafioti, defendant's expert witness, and Lawrence Marcik, Jr., plaintiff's engineering expert.

I. FACTS:

1. The plaintiff, and at all times mentioned herein, owns and resides at the property known as 421 Cosey Beach Avenue Extension, East Haven, Connecticut.

2. The defendant is a licensed professional engineer in the State of Connecticut and has been practicing since approximately 1963.

3. The plaintiff hired the defendant to design a foundation for a proposed garage and deck addition to the plaintiff's home on Cosey Beach Avenue Extension.

4. Cosey Beach Avenue Extension is located along the East Haven shoreline on the Long Island Sound.   The plaintiff's home was constructed in approximately 2000.   It has a slab foundation built on pilings due to the poor structural support of the soil.

5. Shortly before May 3, 2005, the plaintiff contacted the defendant's office seeking advice and professional assistance in connection with the desired construction of a 22 by 28 foot garage, with deck above, to be located adjacent to his Cosey Beach Avenue Ext. home.   He needed assistance with the footing design due to the poor structural support of the soil.

6. On May 3, 2005, Ricky Raymond, the defendant's project manager, visited the subject property with the plaintiff.   Raymond's notes, Plaintiff's Exhibit # 1, indicate the site visit occurred on May 3, 2005, that the above-mentioned garage was described, and included the following important information:  “15 feet baymuck then sand.”   The request was for a footing design for the above-mentioned garage.   Notes include that there is a slab under the existing house.   Plaintiff told Raymond that he'd already been advised by a different engineer that pilings were necessary to support the proposed addition, but Raymond advised plaintiff that Giordano had previously designed footings for such projects without pilings.

7. Plaintiff's Exhibit # 2 is a large drawing made by Fabio Mangione, plaintiff, showing the proposed garage addition and reviewed by the defendant on 8/24/05.   Giordano's review, written above his professional engineer's stamp, indicates the same as “structurally reviewed by Anthony Giordano, P.E. 8/24/05.”   Plaintiff testified that he used that plan to seek a building permit from the Town of East Haven.

8. Plaintiff's Exhibit # 3, five pages, are February 2000 soil sampling/boring logs of the Cosey Beach Avenue Ext. property.   These logs show, among other things, that test bores were done and that baymuck, described in more appropriate geological terms, extended from approximately two feet below the surface to approximately sixteen feet in depth, depending on which test bore hole is reviewed.

9. The plaintiff, involved in the construction industry for approximately thirty years, understood that he was seeking to build a garage on a lot that contained a great deal of soft and wet materials below two feet of trucked-in surface fill.   When he had constructed his home at the subject property in around the year 2000, he had built a slab home constructed on pilings so as to prevent settling and to give a solid foundation.   The plaintiff sought to avoid the cost of pilings when he planned to construct his garage and deck.   The plaintiff specifically sought the advice of the defendant with respect to whether the garage and deck addition could be built without the necessity of the cost of pilings.   The defendant advised that the addition could be built without pilings and instead designed, Exhibit # 4, a proposed garage and deck addition for the subject property without pilings.

10. The addition was built in 2006.   Several months after the addition was constructed, it began to sink into the baymuck.   The plaintiff contacted the defendant seeking assistance and the defendant refused to provide any assistance.

11. The plaintiff then hired engineering experts who performed soil testing, bore testing, designed support for the foundation, sunk pilings around the then existing foundation of the garage addition and hydraulically lifted or jacked the addition into a relatively level and stable position.

12. The plaintiff incurred substantial expense in connection with the efforts to stop the addition from further sinking into the baymuck, to raise the same and to level the same.   The plaintiff seeks damages from the defendant for those costs.

13. The defendant admits, at trial though not in the pleadings, that the plaintiff did engage the defendant to provide structural engineering design services in connection with the garage and deck addition to the plaintiff's home.   The defendant did provide those engineering design services.

14. The design, Plaintiff's Exhibit # 4, prescribes a “construction procedure,” upper right hand corner of Plaintiff's Exhibit # 4, in four steps.   Evidence established that the plaintiff did not perform in accordance with the construction procedure.   The plaintiff, who performed, along with his brother, the construction work, did not conform to the “construction procedure” included in the defendant's design.   Specifically, the plaintiff did not excavate the top three and one-half to four feet of material beneath the foundation.   The plaintiff did not place small rock two feet compacted with a twenty-ton vibrating roller.   The plaintiff did not place small rock less than 6” on final lifts and, pursuant to Technical Inspection # 15 on Exhibit # 4, the plaintiff did not “place and compact gravel fill layers not to exceed 6” before compaction.   Determined maximum dry density in accordance with ASTM D1557 and make one field density test in accordance with ASTM D2167 for each fifty yards of compacted fill, but not less than one per layer, to insure compaction to 95% of maximum dry density, and the contractor shall provide the name of the testing firm to the engineer for approval.”

15. However, the plaintiff established, through his testimony, that of Ricky Raymond and the defendant, Anthony Giordano, the following:  In late July and early August of 2006, the Mangione brothers began excavation for the addition.   A day or two immediately prior to the excavation, Fabio Mangione telephoned Ricky Raymond to advise of the proposed construction and to ask whether they could use different sized stone than was described in the plan and a different size of vibrating roller than was described in the plan, Plaintiff's Exhibit # 4.   Raymond defers an answer pending discussion with Giordano.

16. On the day the construction occurred, Ricky Raymond and Anthony Giordano visited the construction site where Ricardo Mangione and Fabio Mangione were excavating and compacting stone in the area beneath where the foundation and footings were proposed.

17. During his trial testimony Anthony Giordano initially denied that he was present at the Mangione home on during the day when the excavation occurred and the later admitted he was present, after being confronted with his prior deposition testimony, as he responded, “all right, I was there, so what?”

18. Giordano testified inconsistently on a number of points but did indicate that prior to drawing the foundation plan, Exhibit # 4, he did not visit the Mangione home, he did not perform any bore testing or obtain and consider any soil testing samples or test bore reports, and he did not have any documentation of load calculation soil before drawing the plans.   He acknowledged that he did not see the excavation prior to the time when the Mangione brothers began to fill the site with stone and pound stone into the baymuck.   He acknowledged that he was on the excavation site and saw no twenty-ton vibratory roller but instead saw a small roller being used by the Mangiones and made no objection thereto.   He did not inquire as to the volume of stone that had been used.   He did not inquire as to the depth of the excavation that had occurred, and though he claimed at trial that he was “shocked” when he arrived at the excavation site, he did not discuss with Fabio Mangione the depth of the excavation, the type of stone used, the volume of stone used, his opinion, expressed at trial, that the Mangione vibratory roller “was a toy,” much too small to perform the compaction desired, nor did he supervise or perform any compaction tests.

19. The Mangione brothers testified persuasively that Anthony Giordano was at the excavation site and that Giordano was well aware of the lack of the twenty-ton vibratory roller and approved the use of the smaller roller as long as the plaintiff would also use their 50,000 lb.   John Deere excavator with a bucket loaded with stone to pound and compact the stone that was to form the slab or scab above the baymuck designed to support the addition.   The Mangione brothers testified persuasively that Giordano was on the construction site, did approve the compaction by having them drive the 50,000 lb. excavator back and forth across the pounded stone and Giordano visually determined that there was no deflection of the stone as the large and heavy tracked vehicle traversed the top of the compacted stone.

20. Giordano testified that the stone used, though not in conformance with the approved plan, was appropriate.   The Court finds the Mangione testimony that Giordano approved the use of the excavator in lieu of the twenty-ton vibratory roller to be an accepted and approved oral modification by Giordano of foundation plan, Plaintiff's Exhibit # 4.   Though Giordano was on the excavation site on the day when the work was being done, he required no compaction tests of any sort other than a visual test that he performed observing the Mangione brothers operating the aforementioned excavator across the compacted stone slab or scab that was above the baymuck and upon which the footing of the addition was proposed to rest.

21. Giordano claimed during his testimony that if the twenty-ton vibratory roller had been used, then the scab or slab concept would have worked, but Giordano relied on no mathematical or engineering calculations for this opinion, referenced no textbooks or scientific literature to form this opinion, had no bore tests or soil samples upon which to rest this opinion and claimed only that he had experience on other construction jobs where he had used this technique and, as far as he knew, there was no settling.   No effort was made to establish the similarity of circumstances between the other construction jobs Giordano referenced and the Mangione site and usage.

22. The Court found persuasive the testimony of engineering experts Marcik and Marafioti.   Marcik and Marafioti confirmed that the standard of care for practicing civil engineers, such as the defendant, who are designing a foundation for an addition such as plaintiff proposed, required consideration of the loadbearing capacity of the soils and a construction analysis of the loads.   They confirmed that the defendant did not perform any sort of soil test.   No boring samples were considered.   They had no evidence that an analysis of loads on the soil by the Mangione addition was performed by Giordano.   Neither cited a textbook or other engineering treatise that endorsed the construction plan that Giordano proposed.   Each expert had substantial experience with foundation design and though Marafioti testified that he had once worked with Giordano where a similar construction technique was used, Marafioti had not designed that foundation.   Marafioti also recalled a second time when a somewhat similar circumstance arose where he did use somewhat similar construction technique, but the soil sample in his Provincetown, Massachusetts project was sand and gravel as opposed to baymuck, as is involved in the instant matter.   In short, Marafioti had only one experience that he felt was somewhat similar to the instant matter and in that experience, Marafioti was not responsible for the design of the foundation, but rather Giordano was.

23. Marcik rejected the concept of Giordano's idea of pounding rock above and into the baymuck and then constructing an addition top that slab or scab of pounded rock.   Marcik credibly explained that as the weight of the rock slab, the foundation and eventual addition was placed upon the slab or scab, rested on the baymuck, the water below and within the baymuck would be forced out or away from the area beneath the construction, causing a settling or sinking of the construction—just as occurred.   Marcik noted that water is difficult to compress and hence the rock slab may have some initial stability, but the weight of the rock and addition will eventually force the water out of the baymuck directly below the slab/addition.   Marcik described a number of recognized and accepted construction techniques for dealing with such a site, including de-watering the soil or removing and replacing all the baymuck with stable soil materials, but the economical solution for this site was to drive pilings beneath where the foundation was going to be placed and the depth of the pilings would be determined by the depth of the soft or nonloadbearing soil.   In short, Marcik opined that though there are several techniques for dealing with conditions such as Mangione faced in this situation, the economical solution to create a solid base for the footing required the driving of pilings.

24. The plaintiff testified that several months following the completion of the addition, the same began to sink.   He testified that he called the defendant for assistance and was offered none.   In 2007, the plaintiff contracted with Aschettino Associates, LLC, structural engineers, for help.   They solved the settling problem with a design that required pilings to raise and support the garage addition.   In connection therewith, Soil Testing, Inc. performed boring logs and soil tests in October of 2007 and then piles were driven to raise and support the construction.   This opinion is very consistent with the advice that Fabio Mangione had received when he consulted with a structural engineer, other than Giordano, prior to the start of the project and with that of Marcik.

25. Mangione timely sought and eventually received permission from Giordano to deviate from construction plan required the use of the 20–ton vibratory roller, Giordano testified that Mangione's deviation from the construction plan by use of different sized stone than required was not a cause of any the subsequent failure of the slab or scab and Mangione's other conduct was not unreasonable under the circumstances then and there existing.

LEGAL STANDARDS:

The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ If a plaintiff cannot prove all of those elements, the cause of action fails.”  (Internal quotation marks omitted.)  Angiolillo v. Buck-miller, 102 Conn.App. 697, 711, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).   BYRD v. ORTIZ, 136 Conn.App. 246, 252–53 (2012).

Giordano assumed a duty of care when he contractually agreed to draw a foundation plan for Mangione.  “Duty is a legal conclusion about relationships between individuals, made after the fact ․ The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ․ Although it has been said that no universal test for [duty] ever has been formulated ․ our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant.   The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ․ [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.”  (Citation omitted;  internal quotation marks omitted.)  Sic v. Nunan, 307 Conn. 399, 406–08, 54 A.3d 553 (2012).

Legal cause has two components:  cause in fact and proximate cause.   The Restatement (Second), Torts § 430 (1965) provides:  “In order that a negligent actor shall be liable for another's harm, it is necessary not only that the actor's conduct be negligent toward the other, but also that the negligence of the actor be a legal cause of the other's harm.”

A cause in fact is an actual cause.   The test for cause in fact is, simply, “Would the injury have occurred were it not for the defendant's negligence?”   Win v. Posades, 281 Conn. 50, 56 (2007).

Negligence is a proximate cause of an injury if it was a substantial factor in bringing the injury or loss about.  Doe v. Manheimer, 212 Conn. 748, 757–58 (1989).

The rule of damages is as follows.   Insofar as money can do it, the plaintiff is to receive fair, just and reasonable compensation for all losses, past and future, which are proximately caused by the defendant's proven negligence.   CT Civil Jury Instruction, section 3.4.

It is well settled that an owner of property is competent to testify as to its market value.  Long Beach City High School District v. Stewart, 30 Cal.2d 763, 772, 185 P.2d 585;  Housing & Redevelopment Authority v. Zweigbaum, 257 Minn. 233, 235, 100 N.W.2d 719;  3 Wigmore, Evidence (3d Ed.) p. 45;  20 Am.Jur. 751, Evidence, 892.  MISISCO v. LA MAlTA, 150 Conn. 680, 684 (1963).

CONCLUSIONS:

1. Anthony Giordano did breach the standard of care for licensed professional civil engineers in the State of Connecticut when he designed the proposed garage and deck design and foundation plan, Plaintiff's Exhibit # 4.   He breached the standard of care in that he:  failed to obtain soil tests that were necessary in order to design a proper structure, failed to examine the site and determine the composition of the soil, failed to order and obtain soil boring tests, failed to perform or document loadbearing calculations prior to design, failed to observe or confirm the depth of excavation and the type and quantity of stone used, designed a compressed stone slab or scab above 15 feet of baymuck to hold an addition of a garage and deck without reference to any accepted engineering study or technique, approved the modification of the construction plan by allowing the use of different size and quantity of stone than required by the construction plan without any testing or reference to accepted engineering principles and substituted a ten-ton, instead of a 20–ton, vibrating roller for compression and the use of a 50,000 lb. excavator to pound the stone to create compression without any testing or reference to accepted engineering principles, and/or failed to perform or require compaction tests during or subsequent to the completion of the excavation work performed by the plaintiff before approving the site ready for construction of the addition.

2. However, Giordano's breach of the standard of care and negligence was not the cause of the need for pilings under the addition.   Pilings were required, in accordance with the credible testimony of both parties' respective engineering experts, by the exisiting conditions of the subsoil beneath the proposed addition:  being “15 feet of baymuck.”   Such conditions require de-watering, removal and replacement with appropriate fill, or, among other possibilities, the positioning of pilings beneath the proposed footings of the addition.   Giordano's negligence, as noted above, did cause the plaintiff to incur a number of expenses including $3,947.63 in the acquisition of Tilcon stone, $5,000.00 for the replacement of drivit siding that was applied to the garage and needed to be replaced once the settling occurred, $500 for caulking materials that were necessitated by the sinking of the garage addition, and a $10,000 diminution of the fair market value of the structure, because it does not sit squarely and because, in accordance with the plaintiff's testimony, the garage doors do not close properly and there is approximately a one and one-half inch gap between one side of the garage door and the other as a consequence of uneven sinking that could not be completely rectified with the hydraulic jack and pilings.

3. The Court is unable to find that Giordano's negligence and breach of implied warranty, recited above, caused the subsequent necessity of Aschettino Associates' engineering services, Soil Testing, Inc.'s boring logs, or the placement of the pilings and raising of the structure as those expenses would have been incurred by Mangione as the addition did require pilings to be placed prior to the footings and foundation for the subject addition.   This was an unavoidable expense, which Mangione testified he was willing to pay but hoped to avoid, necessitated by site conditions and not by Giordano's conduct.

4. The Court does find that the plaintiff has proven by a fair preponderance of the evidence that Giordano was negligent in one or more of the ways alleged in the plaintiff's Complaint including for failing to examine the site, consider the soil, test the soil prior to preparing a design, preparing the foundation plan without evidence of any mathematical calculations of loadbearing capacities of the soil, designing a crushed stone compaction above 15 feet of baymuck without any testing of the level of compaction or knowing whether the excavation described in the construction procedure was actually performed or whether the correct stone and volume of stone was placed as designed and orally approving the usage of a smaller vibrating roller and excavator to perform the compaction than was called upon by the construction procedure, without any, other than a visual, compaction test prior to orally approving the site ready for construction of the addition.

5. Giordano's negligence did cause loss and expense to plaintiff including both the cost of the acquisition and placement of the stone, the replacement siding, caulking and a diminution of fair market value of the garage structure as a consequence of the uneven settling of the structure.   The plaintiff offered insufficient evidence of any other expenses or losses incurred by the plaintiff that were caused by the negligence of Giordano or caused by Giordano's breach of implied warranty that accompanied the proposed addition plans.   The Court does find the implied warranty of the plans was breached for the same reasons that Giordano was found negligent as described above.   However, the same limitations for damages consequential thereto are applicable.

6. The substantial expenses that Fabio Mangione incurred following the settling were, as best the Court could determine based upon the evidence presented, engineering, testing and placement of pilings beneath the footings of the addition and then hydraulically raising the footings.   As the engineer that Mangione initially consulted, prior to Giordano, and as Mangione's expert engineer, Marcik, testified, given the circumstances of this particular piece of property and the size and weight of the proposed addition, the only economical, industry approved engineering approach to obtain a stable foundation at this site was the driving of pilings.

7. The defendant has failed to establish by a preponderance of the evidence that Mangione was comparatively negligent and that any such negligence was a proximate cause of any of Mangione's losses.

WHEREFORE, in light of the above, judgment enters for the plaintiff in the amount of $19,447.63.

BY THE COURT

ZEMETIS, T.

Zemetis, Terence A., J.