eNotes: Liability – November 2023 – Washington, DC

SIGNIFICANT CASE SUMMARIES

Washington, DC Case Summary

KS Condo, LLC, v. Fairfax Village Condo. VII
District of Columbia Court of Appeals
No. 22-cv-0593

Decided: September 28, 2023

Expert testimony is not always required to prove negligence claim relating to failure to repair a common element of a condominium.

Background

In March of 2015, at a board meeting, it came to the attention of Defendant that a foundation wall for which it was responsible had serious issues. At that board meeting, a report from the property manager indicated that work must be performed urgently, within 30 days. Defendant did not hire a contractor to inspect the foundation wall for 9 months. In December 2015, Defendant received a report from that contracted inspector, who described the foundation wall as having serious structural problems, stated that it needed to be repaired as soon as possible, and recommended engaging a structural engineering firm. Defendant hired a structural engineering firm in December 2015, who submitted a proposal in January 2016 to manage and complete the repair work. Throughout 2016, Defendant engaged in various steps to move the project forward, but despite approving the proposal in July of 2016, failed to fund the project.

The project to repair the foundation wall was bid by a contractor for $200,000 in February of 2017. Defendant’s internal communications reflect the continued urgent and serious nature of the issue, but Defendant continued to discuss funding opportunities and possibilities, even seeking a loan agreement in lieu of a special assessment to the unit owners of the condo association. Defendant ultimately tabled the issue after disapproving of the loan’s terms. In July of 2017, 28 months after the issue was brought to the attention of the board as urgent, the wall collapsed, and Defendant within three months secured a $1,000,000 loan to cover the repairs.

Plaintiff, the owner of the unit most affected by the failure of the foundation wall, sued Defendant for its failure to act in accordance with its duties to maintain the common elements. The Trial Court, in a bench trial, ruled that Plaintiff had failed to prove negligence against the Defendant because Plaintiff did not provide expert testimony about the duty of the board to act under the circumstances.

Holding

The District of Columbia Court of Appeals vacated judgement, stating that expert testimony was not needed to prove the elements of negligence in the case. The facts of the case revealed that the Defendant’s board was the recipient of repeated expert opinions showing an unquestionably urgent circumstance wherein action would naturally be taken by a rational party. While the Court of Appeals noted that judges in the Superior Court do have the discretion to determine whether an expert is needed to establish the breach of a duty, the Superior Court had abused that discretion in requiring the expert testimony. The Court of Appeals largely expressed this distinction as to whether the factfinder in a given case could assess the question before it without the aid of an expert, and held that, in this case, it could. The Court of Appeals also noted that Plaintiff was not required to rule out all possible alternative causes, a process which might require an expert, in order for the Defendant to be shown to have breached its duty. Rather, such actions could be judged using the testimony and assertions of laypersons because the negligence being assessed was the actions taken by laypersons on the board, who were in receipt of expert reports.

Questions about this case can be directed to Joseph Mooradian at (202) 318-1751 or jmooradian@tthlaw.com.