Vafiades v. Mike's Appliance Repair, Inc.

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STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

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TODD VAFIADES, ~I

Plaintiff

STATE OF MAINE ORDER ON MOTION FOR

v. Cumberland. s~. Clerk's Office SUMMARY JUDGMENT

MIKE'S APPLIANCE I~OV 15 2013

REP AIR, INC.

Defendant RECEIVED

Defendant Mike's Appliance Repair, Inc. moves the Court for summary

judgment.

Factual and Procedural Background

Plaintiff Todd Vafiades owns a vacation home in Oxford, Maine that he visits

approximately twice a month. (Def.'s S.M.F. ~~ 1, 5.) In September 2010, Mr. Vafiades

noticed that his refrigerator was not cooling properly, leaving the interior frozen at the

bottom and room temperature at the top. (Def.'s S.M.F. ~ 5.) On September 28, 2010, Mr.

Vafiades called Defendant Mike's Appliance Repair ("MAR") to schedule a service visit

for the refrigerator. (Def.'s S.M.F. ~ 6.) Michael Mann from MAR inspected the

refrigerator on October 4, 2010 and discovered a broken fan. (Def.'s S.M.F. ~ 7.) Mr.

Mann notified Mr. Vafiades that he would need to order parts before making the repair.

(Def.'s S.M.F. ~ 7.)

On November 1, 2010, Mr. Mann returned to Mr. Vafiades' home, repaired the

refrigerator, and returned it to its original position against the wall. (Def.'s S.M.F. ~ 8.)

Between November 1 and November 9, 2010, no one visited Mr. Vafiades' home. (Def.'s

S.M.F. ~ 9.) On November 9, Mr. Vafiades visited the home, but he did not notice any

problems with the refrigerator. (Def.'s S.M.F. ,-r 10.) No one visited the house between

November 9 and November 29, 2010. (Defs S.M.F. ,-r 11.)

On November 29,2010, Mr. Vafiades visited the house and discovered water all

over the floor of the kitchen and throughout the house. (Def.'s S.M.F. ,-r 12.) Mr. Vafiades

identified the source ofthe water as corning from behind the refrigerator. (Def.'s S.M.F. ,-r

13.) After pulling the refrigerator out from the wall, he found that the coupling fastening

the plastic water pipe to the water supply line had released and that a small hose was

expelling water. (Def.'s S.M.F. ,-r 14.) Plaintiff shut offthe water supply and had the

refrigerator repaired. (Def.'s S.M.F. ,-r,-r 15-16.)

Mr. Vafiades filed his complaint on October 9, 2012, alleging that Mr. Mann of

MAR negligently repaired his refrigerator. 1 Specifically, Mr. Vafiades alleges that the

Mr. Mann improperly attached the water supply line and that he failed to inform Mr.

Vafiades that plastic tubing was used to attach the refrigerator to its water source.

Discussion

1. Standard of Review

"Summary judgment is appropriate when there is no genuine issue of material fact

that is in dispute and, at trial, the parties would be entitled to judgment as a matter of

law." Fitzgerald v. Hutchins, 2009 ME 115, ,-r 9, 983 A.2d 382. "An issue is genuine if

there is sufficient evidence supporting the claimed factual dispute to require a choice

between the differing versions; an issue is material if it could potentially affect the

outcome ofthe matter." Brown Dev. Corp. v. Hemond, 2008 ME 146, ,-r 10, 956 A.2d

104. To survive a defendant's motion for summary judgment, "the plaintiff must establish

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Mr. Vafiades' complaint also included claims against the alleged manufacturer and installer, Chase

Custom Homes and Finance, Inc. and L.P. Appliance Distributors, Inc. Those defendants have settled.

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a prima facie case for each element of her cause of action." Watt v. UniFirst Corp., 2009

ME 47, ~ 21, 969 A.2d 897.

2. Standard of Care

Mr. Vafiades alleges, and MAR does not dispute, that the standard of care for

refrigerator repairs requires that when a repair person detaches a water supply line, he

must correctly reattach it. For the purposes of this motion for summary judgment, MAR

concedes that Mr. Mann detached the water supply line. Therefore, Mr. Vafiades has

shown there was a duty with an articulable standard of care.

Mr. Vafiades also initially attempted to establish that the use of plastic piping, as

opposed to copper piping, was a breach of the standard of care, but he concedes that he

cannot establish that the use of copper piping is standard practice. (Pl.'s Opp. Memo,

page 13; Def.'s S.M.F. ~~ 25-28.) He nevertheless asserts that he is not "abandoning his

position." (Pl.'s Opp. Memo, page 13.) He argues that MAR owed a duty to notify Mr.

Vafiades that he should install copper piping as recommended by the refrigerator's

instruction manual. Mr. Vafiades' argument is not persuasive. If copper piping is not the

standard of care, then there would have been no reason to notify Mr. V afiades that he

should have a copper line installed. Mr. Vafiades' claim is limited to whether Mr. Mann

correctly reattached the water supply line.

3. Breach and Proximate Cause

Defendants challenge whether Mr. Vafiades has raised a genuine issue of material

fact on whether MAR breached its duty to properly reattach the water supply line and

whether that breach proximately caused the harm suffered in this case. (Pl.'s S .M.F. ~ 1.)

Mr. Vafiades points to Mr. Mann's failure to clamp the water line to the back ofthe

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refrigerator and Mr. Mann's failure to fully tighten the coupling as breaches that

proximately caused the water line to pop out of the coupling.

a. Failure to Clamp Water Line

Mr. Vafiades claims that Mr. Mann breached a duty by failing to clamp the water

line to the back of the refrigerator. The manual for Mr. Vafiades' refrigerator states that

the water supply line should be clamped to the back of the refrigerator after it is

connected to the coupling. (Pl.'s S.M.F. ~ 4.) Mr. Mann admitted that ifthe refrigerator's

manual stated that the water supply line should be secured to the back of the refrigerator,

then he should have secured it in that manner. (Pl.'s S.M.F. ~ 8.) Mr. Mann admits that he

did not secure the water line to the back of the refrigerator. (Pl.' S.M.F. ~ 7.)

There is a genuine issue of material fact as to whether this clamp serves any

functional purpose. (Pl.'s S.M.F. ~ 5; Def.'s Reply to Pl.'s S.M.F. ~ 5.) Mr. Vafiades'

position is that the failure to clamp the water line to the back of the refrigerator allows the

line to become stressed when the refrigerator is moved and could cause the line to

separate from the coupling. (Pl.'s S.M.F. ~ 5.) MAR contends that no harmful

consequences will result from a failure to secure the water line with a clamp. (Def. 's

Reply to Pl.'s S.M.F. ~ 5.) This is an issue for the jury. Whether Mr. Vafiades has raised

an issue of fact on whether Mr. Mann's breach proximately caused the harm in this case

is discussed below.

b. Failure to Fully Tighten the Coupling

Mr. V afiades alleges that Mr. Mann failed to fully tighten the coupling after

performing his repair work on the refrigerator. He relies on the expert opinion of Stephen

Pomerleau for support. Mr. Pomerleau is a service manager for Agren Appliance.

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(Pomerleau Dep. 3:9.) Based on photographs of the refrigerator and the water line and

other information told to him about the case, it is Mr. Pomerleau's opinion that the

coupling was not sufficiently tightened, which caused the water line to slip apart.

(Pomerleau Dep. 36:8-10.)

MAR claims that Mr. Pomerleau cannot establish that a failure to tighten caused

the line to slip apart. According to MAR, since Pomerleau cannot rule out other theories

of causation based on the photographs, his opinion is mere conjecture or speculation.

More specifically, MAR argues that Pomerleau cannot rule out that the plastic pipe itself

was dried and cracked or defective, that the coupling was defective, or that the ferrule 2

was improperly made. (Def.'s S.M.F. ~~ 19-21.)

These claimed deficiencies go to the weight and not the admissibility of the expert

testimony. See Kay v. Hanover Ins. Co., 677 A.2d 556, 559 (Me. 1996) (stating that an

expert does not need to state an opinion with any specific degree of certainty). Under

Rule 702 of the Maine Rules of Evidence, where specialized knowledge will assist a jury,

"a witness qualified as an expert by knowledge, skill, experience, training or education,

may testify thereto in the form of an opinion or otherwise." MAR does not attack Mr.

Pomerleau's qualifications. Mr. Pomerleau's opinion is informed by his experience with

refrigerator repairs and based on his knowledge of this case and the photographs provided

to him. It is his expert opinion that the malfunction here was caused by a failure to tighten

the water line.

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According to http://www.ehow.com/how_12157538_attach-nut-ferrule-water-line-refrigerator.html, "[a]

ferrule and nut combine to ensure a refrigerator waterline does not leak under pressure. The ferrule

resembles an elongated tapered washer that has an inner diameter that matches the outer wall diameter of

the refrigerator waterline. When the nut compresses the ferrule, it seats in the matching taper of the

refrigerator connection and seals the waterline connection. Installing both components in the correct way

and in the correct order will ensure the connection remains sealed when the water is turned on." Read

more: http://www .ehow .com/how_121575 38_attach-nut-ferrule-water-line-

refrigerator.html#ixzz2kkA 1Op3f.

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MAR urges the Court to disregard Mr. Pomerleau's testimony because there are

no facts to support his opinion. "[A]n expert theory may not form the basis of a favorable

verdict if there are no facts in evidence on which to apply the theory to the case at hand."

Green v. Cessna Aircraft Co., 673 A.2d 216, 218 (Me. 1996). The Green case involved a

plane crash and whether it occurred as a result of pilot error or the failure of a clamp on

the plane. Id at 218. The Law Court affirmed summary judgment for the defendant

because there was no evidence in the record to support plaintiffs expert's theory, but

there was evidence to support defendant's theory "that the accident occurred as a result of

pilot error." Id at 219.

In this case there is sufficient evidence to support Mr. Pomerleau's theory. First,

MAR concedes for the purposes of this motion that Mr. Mann detached the water line in

this case, thus MAR was responsible for correctly reattaching the line. Second, the timing

of the accident, less than one month after MAR's repair is consistent with Mr.

Pomerleau's theory that Mr. Mann failed to tighten the coupling. Third, based on Mr.

Pomerleau's experience with similar accidents, he testified, "that blowout, the way that

separated would never have happened if [the coupling] were tightened properly."

(Pomerleau Dep. 84: 17-18.) Finally, Mr. Pomerleau testified that because the ·water line

was not clamped to the back of the refrigerator, the fittings had a possibility ofloosening

further when the refrigerator was moved. (Pomerleau Dep. 43:21-25.)

On the other hand, there is no evidence at this point that any of the parts involved

in this case were defective. Unlike in Green, where all ofthe facts undercut the expert's

theory, the facts here do not clearly point to alternative theory of the case. That Mr.

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Pomerleau cannot rule out all other possible causes of the accident in this case is not a bar

to admitting his testimony.

4. The Parties' Subsequent Filings

After MAR filed its motion for summary judgment, Mr. Vafiades submitted an

affidavit from Mr. Pomerleau based on newly discovered, higher-quality versions of

photographs presented at his deposition. The parties dispute whether the Court could

consider the affidavit in resolving this motion. Because the Court finds that Mr.

Pomerleau's testimony from his deposition is sufficient to raise genuine issues of material

fact on the elements of negligence, the parties' subsequent filings on the affidavit issue

are moot.

Accordingly, the entry is:

Defendant's motion for summary judgment is DENIED.

Dated: November 15, 2013

e, Superior Court

Plaintiff-David Dubord Esq/Danie.l Eichorn E_sq

Defendant-Wendell Large Esq/Carol Eisenberg Esq

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