Mark Skiathitis v. City of Manchester Water Works

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0478, Mark Skiathitis v. City of
Manchester Water Works, the court on May 12, 2016, issued the
following order:

Having considered the briefs filed by the parties and the record
submitted on appeal, we conclude that oral argument is unnecessary in this
case. See Sup. Ct. R. 18(1). The plaintiff, Mark Skiathitis, appeals, and the
defendant, the City of Manchester Water Works, cross-appeals, an order of the
Superior Court (Abramson, J.), which granted a directed verdict to the
defendant. We affirm.

The plaintiff sued the defendant for negligence, alleging that the
defendant’s failure to turn off his water for nonpayment resulted in a water
leak in December 2010 and a basement “flood” in February 2011, causing
there to be mold in the home. To establish his claim for damages, the plaintiff
testified that, because his family had owned the home since it was first built in
1967, the home had “sentimental” value to him. Although the plaintiff
submitted photographs that allegedly showed the damage caused by the
December 2010 leak and February 2011 flood, he admitted that some of the
damage they depicted was caused by other events. The plaintiff further
testified that, at the time of the salient events, he was not living in the home,
the electricity to the home had been disconnected in the summer of 2010 for
non-payment, the home had no heat, and he had not drained the pipes or
taken other steps to prepare the home for the winter of 2010-11. The plaintiff
did not disclose any experts to testify about the damage to the home, including
the cost of mold remediation. Nor did he submit any estimates of the cost to
repair the damage to the home.

The trial court granted a directed verdict to the defendant because the
plaintiff failed to submit sufficient evidence upon which the jury could award
damages. The court determined that, without evidence establishing the
amount of damages caused by the December 2010 leak and February 2011
flood or the cost of repair, and without expert testimony regarding the cause of
the mold and the cost of mold remediation, the jury could base a damages
award only upon its speculation.

On appeal, the plaintiff does not address the trial court’s determination
that expert testimony was required on the cause of mold and the cost of mold
remediation. Instead, he asserts that expert testimony about the value of the
residence was not required. Additionally, he argues that because many of the
jurors were homeowners and one juror was a contractor, his testimony
constituted sufficient evidence upon which to base a damages award. The
plaintiff also argues that the trial court erred to the extent that it failed to allow
the jury to award him either nominal or “sentimental” damages. But see White
v. Schnoebelen, 91 N.H. 273, 274 (1941) (explaining that negligence that
results in only nominal damages does not give rise to a right of action). The
plaintiff acknowledges that, with regard to personal property, jurisdictions are
divided as to whether sentimental damages are recoverable, but does not cite
any cases in which a court has allowed a plaintiff to recover sentimental
damages relating to real property.

“A party is entitled to a directed verdict only when the sole reasonable
inference that may be drawn from the evidence, which must be viewed in the
light most favorable to the nonmoving party, is so overwhelmingly in favor of
the moving party that no contrary verdict could stand.” DeBenedetto v. CLD
Consulting Eng’rs, 153 N.H. 793, 812 (2006). Absent an unsustainable
exercise of discretion, we will not reverse a trial court’s ruling on a motion for
directed verdict. Id.

A party seeking to recover damages must prove the extent and amount of
damages by a preponderance of the evidence. Bailey v. Sommovigo, 137 N.H.
526, 531 (1993). “Damages in tort must be proven with as much certainty as
the nature of the tort and the circumstances permit.” Clipper Affiliates v.
Checovich, 138 N.H. 271, 276 (1994) (quotation omitted). Although “[p]roof of
damages to the degree of mathematical certainty is not necessary, . . .
[s]peculative losses are not recoverable.” Hydroform Prods. Corp. v. American
Steel & Alum. Corp., 127 N.H. 187, 197 (1985) (discussing recovery of lost
profits in a breach of contract claim).

As the appealing party, the plaintiff has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s order, the plaintiff’s challenges to it, the relevant law,
and the record submitted on appeal, we conclude that the plaintiff has not
demonstrated reversible error. See id.

Because we have upheld the trial court’s grant of a directed verdict to the
defendant on damages, the defendant’s cross-appeal, in which it contends that
it was also entitled to a directed verdict on liability, is moot.

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk
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