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The Downside to Higher Ground: Appellate Division affirms finding of a townhome owner’s negligence and responsibility for water damage to a below unit caused by a prolonged leaking washing machine hose

On August 1, 2018, the Superior Court of New Jersey, Appellate Division ruled in favor of plaintiff in the matter captioned Joseph S. D’Elia v. Joyce Campisi and Liberty Mutual Mid-Atlantic Insurance Company, Docket No.: A-4426-16T3, where defendant sought an appeal from a trial court bench decision where she was held liable for damage to a townhouse unit owned by plaintiff, caused by a water leak from a washing machine hose in defendant’s residence which was directly above plaintiff’s residence.

At the time of the leak, plaintiff leased his unit to a tenant, a contractor by trade, who assessed the leak in the unit and opined that based on the number of leaks, the size of the whole in the ceiling, and the extent of the damage, that the leak had been “transpiring over a matter of weeks.” The tenant prepared an estimate of $725 to repair the damage to plaintiff’s unit.

During the bench trial, defendant testified that in the five years that she had resided in the townhouse unit, she had never had issues with water leaking in general or from her washer and dryer, nor had she ever received complaints from other tenants. Upon an inspection of defendant’s unit and after pulling-out the washer-dryer unit, it was discovered that the rear hoses attached to the washer were leaking, that “water was all over,” and the water was permeating down into the sheetrock. Defendant paid for all repairs to her washer. Considering the length of time that the leak existed in defendant’s unit, the trial court delivered its decision from the bench and awarded $600 to plaintiff plus fees and costs.

The Appellate Division echoed the reasoning of the court which stated that “defendant failed to exercise a reasonable degree of vigilance, maintenance, precaution and care,” and specifically noted the length of time of the leak as an aggravating factor for finding defendant negligent.  In affirming the judgment of the bench, the Superior Court placed an increased duty of care on those living above others when it stated that “defendant had a responsibility to be vigilant and to maintain her appliances particularly when living above another residence.”  Defendant was not able to side-step liability in this matter by simply denying any such notice of her leaking washer; ignorance did not relieve defendant of the responsibility of due care and maintenance.

However, the Appellate Division noted that in Siddons v. Cook, 382 N.J. Super. 1 (App. Div. 2005) defendant was relieved of liability where the damaged portion of the washer’s plastic feed line was not visible and a plumber certified that the visible portion of the hose was undamaged. Here, defendant did not offer such testimony and the “court was not obliged to accept defendant’s uncorroborated testimony as disputed.” Further, in Siddons, plaintiff did not offer any evidence of the length of time that the leaks existed. Therefore, based on the lack of defense-oriented testimony from a plumber or some similarly qualified individual about the visibility of the damaged portion of the hose and plaintiff’s testimony about the length of time that the leaks existed, the Appellate Division easily affirmed the trial court’s decision.

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