KS Condo v. Fairfax Village Condominium VII

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-CV-0593

KS CONDO, LLC, APPELLANT,

V.

FAIRFAX VILLAGE CONDOMINIUM VII, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2019-CA-006922-B)

(Hon. Maurice A. Ross, Trial Judge)

(Argued June 8, 2023 Decided September 28, 2023)

Jonathan M. Stern for appellant.

Thomas C. Mugavero for appellee.

Before DEAHL and SHANKER, Associate Judges, and FISHER, Senior Judge.

DEAHL, Associate Judge: This case stems from the collapse of a foundation

wall in a multi-unit condominium, leaving the building uninhabitable for almost a

year. KS Condo, the owner of one of the units, sued the condo association for

negligent failure to perform necessary maintenance. At a bench trial, KS Condo

adduced unrefuted evidence showing that while the condo association had been

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aware of “serious” and “urgent” structural deficiencies in the foundation wall for

more than two years, it had undertaken no repairs to remedy those conditions.

Despite this evidence, the trial court ruled in the condo association’s favor, reasoning

that KS Condo’s failure to offer expert testimony as to the appropriate standard of

care and on the question of causation meant as a matter of law that it could not prevail

on its claims. Because we conclude that expert testimony was not required to prove

either element of KS Condo’s negligence claim, we vacate the trial court’s judgment

and remand for further proceedings.

I.

The pertinent facts are largely undisputed. KS Condo owned a unit in 3810

V Street SE, one of the many buildings comprising Fairfax Village, a condominium

complex located in Southeast D.C. Fairfax Village was managed by Fairfax Village

Condominium VII, or Fairfax for short, a condominium association led by a board

of directors. Fairfax was responsible for maintaining the complex’s common

elements, including the buildings’ foundation walls. Individual unit owners, such as

KS Condo, were not permitted to undertake their own repairs to common elements.

Fairfax’s bylaws authorized it to levy special assessments if necessary to fund the

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cost of unexpected repairs. The bylaws also authorized it “to sue for foreclosure to

collect liens for unpaid condominium dues.”

For more than two years before the foundation wall in 3810 V Street

collapsed, Fairfax’s board was on notice that the wall, if not promptly repaired, was

at risk of imminent and catastrophic collapse. At a board meeting in March 2015, a

property management report listed the foundation wall as a “SERIOUS” issue and

proposed that the board agree on a short-term plan “to pay for urgent property repair

that needs to start within 30 days.” Nine months later—i.e., eight months after

Fairfax indicated the repairs needed to start—the board finally hired a contractor,

Property Diagnostics, Inc., to inspect the property.

Property Diagnostics completed a site visit and summarized its findings for

Fairfax in a succinct written paragraph in December 2015. It noted “serious

structural problems” that it urged the board to repair “as soon as possible,”

emphasizing that “[d]elaying action could result in the building collapsing.” It

recommended engaging “a structural engineering firm” immediately, and closed

with this: “We cannot over emphasize the danger of the condition.”

The board promptly hired a structural engineering firm, the Falcon Group,

which similarly reported in December 2015 that there was “[b]uckling on the rear

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foundation block wall of the building, from end to end” that “needs to be addressed

and resolved as soon as possible.” That report listed several recommended courses

of action to remedy the situation, including rebuilding the entire foundation wall or

installing steel beam foundation reinforcements. It also included six photographs

showing massive cracks in the wall from multiple angles. The engineering firm

submitted a proposal the following month, in January 2016—still more than 18

months before the wall’s collapse—to oversee the bidding, obtain the necessary

permits, and manage the project.

At a homeowners’ meeting four months later, in May 2016, Fairfax’s board

noted that the foundation wall repairs were one of its “top 3 projects” and could

“wait no longer,” as the association was “at risk of lawsuits from not performing

these repairs.” A slide deck presented at this meeting included a photograph of the

buckling wall, accompanied by a note stating that financing the projects needed to

happen “ASAP!!!” Around the same time, the board reviewed calculations for a

potential special assessment—a fee that would be charged to all condo owners—to

fund the repairs. The board president emailed the draft calculations to her colleagues

and added that they “need to make some decisions” so that owners would have at

least thirty days’ notice before beginning repairs. At that time, Fairfax was operating

with a budget shortfall, primarily because some of its members had failed to pay

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association fees. By July 2016, Fairfax approved Falcon’s proposal to do the

engineering work and manage the bidding process. During the remainder of 2016,

Fairfax did not take steps to secure the necessary funding for the proposed project.

In February 2017, the first bidder did an onsite assessment and quoted a cost

of more than $200,000 for the repair work. The board president then emailed the

rest of the board, asking them to “review the design plans that [she] sent a few

months ago from Falcon, so that all of us are clear on project scope.” It was around

this time that KS Condo purchased the unit at issue here, above the buckling wall.

A KS Condo representative testified that they were not aware of a problem with the

basement foundation wall because they had never been given access to inspect it.

In the months that followed, now entering the final few months before the

collapse, the board continued to call attention to the “URGENT” and “SERIOUS”

need for repairs in its reports. At another homeowners’ meeting, the board explained

that it was “inquiring about a possible loan for this project” to avoid a special

assessment. One lender provided a draft loan agreement, but the board ultimately

declined it after concluding that it had too many unfavorable terms, and it then tabled

the issue.

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Several weeks after that, in July 2017, the foundation wall collapsed,

rendering KS Condo’s unit, which it leased out to tenants, uninhabitable for nearly

a year. Three months after the collapse, Fairfax obtained a $1 million loan to repair

the damage and complete other projects.

KS Condo sued Fairfax, seeking $35,000 as compensation for its lost rental

income and to recoup expenses associated with relocating its existing tenant. The

case proceeded to a bench trial, where the trial court ruled in Fairfax’s favor. The

court observed that “Fairfax had responsibility for maintenance, repair, renovation,

restoration, and replacement of the common elements” of Fairfax Village. See D.C.

Code § 42-1903.07(a)(1). And it further noted that “Fairfax’s duty was to act as a

reasonable condominium association would act under the same or similar

circumstances.” But the court concluded that KS Condo could not prevail because

it failed to introduce expert testimony on two critical topics: (1) there was no expert

testimony opining on the condo association’s standard of care in maintaining the

common areas, and (2) there was no expert testimony establishing a “connection

between the prior warnings and the collapse.”

As to duty, the court elaborated that it was “beyond the ken of the average lay

juror, or judge sitting without a jury, to identify the appropriate standard of care to

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which a condominium association must be held for remedial repairs.” Thus, an

expert in property management was needed to elucidate the appropriate standard of

care. Without this expert testimony, the court concluded, KS Condo was “unable to

prove a breach of that standard,” and KS Condo’s arguments about what Fairfax

could or should have done in this situation—such as special assessments to fund

emergency repairs or taking out loans—were “speculative.”

As to causation, the court reasoned that while it was undisputed that the

foundation wall had collapsed in July 2017, “[t]here is no expert testimony as to

why.” Thus, in the court’s view, KS Condo had failed to establish that the actions

of Fairfax had caused its injury, as “it is impossible to say whether intervening

factors existed and whether the proposed work on the structure would have

prevented the collapse.” KS Condo now appeals.

II.

“The plaintiff in a negligence action bears the burden of proving ‘the

applicable standard of care, a deviation from that standard by the defendant, and a

causal relationship between that deviation and the plaintiff’s injury.’” District of

Columbia v. Hampton, 666 A.2d 30, 35 (D.C. 1995) (quoting Meek v. Shepard, 484

A.2d 579, 581 (D.C. 1984)). In other words, to establish a negligence claim, a

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plaintiff must demonstrate that: (1) the defendant owed a duty of care to the plaintiff,

(2) the defendant breached that duty, and (3) the defendant’s breach proximately

caused an injury to the plaintiff. Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789,

793 (D.C. 2011) (en banc). As the plaintiff, KS Condo bore the burden of proving

each of these elements by a preponderance of the evidence. “In an appeal from a

bench trial, we review the trial court’s legal conclusions de novo and factual findings

for clear error.” District of Columbia v. Bongam, 271 A.3d 1154, 1162 (D.C. 2022).

The parties initially disagree about our standard of review. Fairfax argues

that, in the District, whether expert testimony is required on an issue is committed

to the sound discretion of the trial court. See District of Columbia v. Davis, 386

A.2d 1195, 1200 (D.C. 1978) (“[T]he decision whether or not to admit (and

presumably to require) expert testimony is within the discretion of the trial court.”);

District of Columbia v. Tulin, 994 A.2d 788, 795 (D.C. 2010) (This court reviews

“for abuse of discretion the trial court’s determination as to whether expert testimony

was necessary.”). KS Condo counters that this is essentially a legal judgment that

“should be reviewed de novo,” citing to a smattering of other jurisdictions that have

adopted that view. See, e.g., Culliton v. Hope Cmty. Res., Inc., 491 P.3d 1088, 1093

(Alaska 2021) (“Whether expert testimony is required to show a breach of a duty of

care represents a question of law to which we apply our independent judgment.”);

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Bittner v. Centurion of Vt., LLC, 264 A.3d 850, 855 (Vt. 2021) (whether “claim

requires expert testimony is a question of law that we review without deference”);

FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004) (“de novo is

the proper standard of review in this context”). While we have some sympathies

with the approach taken in other jurisdictions, our precedents instruct that we apply

an abuse of discretion standard of review to the question at hand, and we do so. 1

Even under an abuse of discretion standard, however, we conclude that expert

testimony was not necessary to establish a breach of the duty of care or causation in

this case. These were commonsense questions left to a factfinder to resolve by a

preponderance of the evidence, and they were capable of being adjudged without the

aid of an expert. The gravamen of KS Condo’s complaint was that Fairfax had a

1

Our precedents applying an abuse of discretion standard generally trace back

to Davis, which offered no reasoning but merely “presum[ed]” that the abuse of

discretion standard we apply to decisions to admit expert testimony should be

extended to a ruling that such testimony is required to sustain a claim. 386 A.2d at

1200. Those are meaningfully different questions, however. While the first one

indeed involves a degree of discretion, the second appears to be a legal question that

probes whether the evidence is sufficient to sustain a verdict absent expert testimony.

To illustrate the point, the trial court’s reasoning here would have supported

summary judgment in Fairfax’s favor: the court reasoned, as a matter of law, that

KS Condo could not succeed without expert testimony. And we review grants of

summary judgment de novo. Brown v. Raines, 293 A.3d 1116, 1119 (D.C. 2023).

Still, we have unequivocally stated in a number of cases that the applicable standard

is abuse of discretion, and so we adhere to those precedents.

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duty to reasonably maintain the foundation wall, but failed to do so despite years’

worth of clear and obvious warnings about the foundation wall’s imminent collapse.

One does not need to know anything about condo associations—themselves

typically made up of laypersons—to assess whether the delays here were reasonable.

Similarly, there was no need for expert testimony to establish causation. A factfinder

could easily conclude on this evidence, without aid from an expert, that the

foundation wall collapsed for the very reason that multiple experts had predicted it

would collapse in the years before that happened: a lack of urgently needed repairs.

We now elaborate on each of these points.

A.

We begin with the trial court’s conclusion that KS Condo was required to

produce expert testimony to establish the scope of Fairfax’s duty, and that absent

such testimony, KS Condo could not establish that Fairfax breached its duty. In

determining whether expert testimony is required to carry a plaintiff’s burden of

proof, we ask whether “lay jurors would be able to ‘grasp the issues without expert

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assistance.’” Blair v. District of Columbia, 190 A.3d 212, 229 (D.C. 2018) (quoting

Tulin, 994 A.2d at 795). 2

While expert testimony is required to establish a duty of care in some

negligence cases, there are plenty of other cases where it is not required. “[W]here

a plaintiff alleges negligent conduct in a ‘context which is within the realm of

common knowledge and everyday experience, the plaintiff is not required to adduce

expert testimony either to establish the applicable standard of care or to prove that

the defendant failed to adhere to it.’” Tolu v. Ayodeji, , 601 (D.C. 2008) (quoting

Varner v. District of Columbia, 891 A.2d 260, 265 (D.C. 2006)). Outside the realm

of professional malpractice cases, we have explained, “causes of action that require

expert testimony are ‘rare.’” Columbus Props., Inc. v. O’Connell, 644 A.2d 444,

447 (D.C. 1994) (quoting Payne v. Soft Sheen Prods., Inc., 486 A.2d 712, 727 n.17

(D.C. 1985)); see also Salem v. U.S. Lines Co., 370 U.S. 31, 35 (1962) (“This is not

2

We have retired the equivalent “beyond the ken” standard for determining

the admissibility of expert testimony; in that context, a proponent of expert

testimony need only clear the lower bar that the expert testimony be of some “help

[to] the trier of fact [in] understand[ing] the evidence.” See Motorola Inc. v. Murray,

147 A.3d 751, 756-57 & n.8 (D.C. 2016) (en banc) (“Our decision to adopt [Federal

Rule of Evidence] 702 means, among other things, that we will no longer ask

whether the subject matter is ‘beyond the ken of the average layman.’”). But in

determining whether a factfinder could reach a verdict in the absence of expert

testimony, the question remains, essentially, whether the issues are beyond an

average juror’s grasp or ken. Blair, 190 A.3d at 229.

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one of the rare causes of action in which the law predicates recovery upon expert

testimony.”). In the mine-run of cases, questions of negligence are “within the realm

of common knowledge and everyday experience,” as they are grounded in ordinary

judgments of reasonableness. Matthews v. District of Columbia, 387 A.2d 731,

734-35 (D.C. 1978).

For three reasons, this was not one of those cases where lay jurors would have

been at a loss in determining whether Fairfax acted negligently when it roughly

ignored, for years, repeated warnings of the foundation wall’s imminent collapse.

First, Fairfax acted through a board of directors who were themselves lay

people and fellow residents of the condominium community. Their jobs as board

members were part-time and required no specialized knowledge. A jury of lay

persons would be equipped to understand the types of quotidian decisions the

board’s directors had to make such as prioritizing, approving, and funding repair

projects. The trial court as factfinder could therefore also assess, without the aid of

expert opinions, whether the condo board acted reasonably. See Wash. Hosp. Ctr.

v. Martin, 454 A.2d 306, 308-09 (D.C. 1982) (distinguishing “ordinary” negligence

cases “in which jurors may apply their own experience in deciding how any

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reasonably prudent person would have acted under the circumstances” from cases in

which the exercise of “professional judgment and skill” is at issue).

Second, Fairfax itself hired experts who alerted it to the buckling basement

wall and themselves articulated the urgency of the situation and the dangerous

situation that needed to be urgently addressed. The court was not tasked with

deciding the correctness of those contractors’ recommendations or conclusions—

Fairfax never contested them. Rather, the question here was whether Fairfax acted

reasonably when it seemingly ignored the specific and urgent warnings it received

from its own experts. The trial court merely had to discern whether a years-long

delay was a reasonable response to what the board itself described as an emergency

situation. Expert testimony might potentially have informed that determination, but

it was not necessary to come to a reasoned judgment about it.

Third, and relatedly, because Fairfax took no actions in response to its

contractors’ recommendations, there were no repairs for the factfinder to evaluate.

The issue of breach could be resolved by determining whether undertaking no repairs

at all was reasonable. 3 The quality, methods, and materials of construction—which

3

Fairfax highlights that it did in fact take some steps to rectify the buckling

foundation wall, such as hiring contractors to perform initial assessments and

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might require some degree of expertise—were never at issue because zero work was

done ahead of the collapse. See Daskalea v. District of Columbia, 227 F.3d 433,

445 (D.C. Cir. 2000) (no expert testimony required when the complained-of conduct

was allowed to continue in a “persistent, open and notorious” fashion).

Our precedents support our conclusion. In Washington Hospital Center v.

Martin, for example, we affirmed a verdict finding the hospital liable after an elderly

patient fell from her bed, which the plaintiffs argued was caused by the staff’s

negligent failure to restrain her. 454 A.2d at 307. While the plaintiffs had offered

no expert testimony on the proper standard of care at trial—and the hospital

attempted to overturn the verdict on that ground—we held that no such testimony

was necessary, as the plaintiff’s case did not challenge the hospital staff’s exercise

of medical judgment. Id. at 308-09. Rather, “the issues before the jury were whether

appellee was in fact under restraints immediately prior to her fall and, if not, whether

the hospital was negligent in leaving her unattended.” Id. at 308. Those questions,

we concluded, could be answered by “a reasonable and ordinary lay person.” Id. at

309.

inquiring about loans. A lay factfinder could likewise factor those actions into its

determination of whether Fairfax acted negligently.

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Similarly, DeStefano v. Children’s Nat’l Med. Ctr. stemmed from a

six-year-old child’s fall through an open vent in a hospital’s parking garage wall,

leading to a twenty-five-foot drop through an air shaft. 121 A.3d 59, 64 (D.C. 2015).

A metal cover for the vent was leaning against the wall nearby, and before the

incident, a parking attendant had reported the hazard to a garage employee, who

dismissed the concerns. Id. at 67. We held that the trial court did not err in

determining that expert testimony was not required to establish a breach of the

hospital’s duty in this situation, explaining that: “It does not take special knowledge

to know that a large, uncovered vent in the wall of a parking garage could be a

hazard, or that taking reasonable steps, such as posting a warning or replacing the

vent cover, could ameliorate the danger.” Id. at 75.

The same is true here. It does not take special knowledge to know that a

crumbling foundation wall could be a hazard, especially when Fairfax’s own

structural engineer had warned of its imminent collapse long before that ultimately

came to pass. It also does not take special knowledge to establish that taking

reasonable steps like rebuilding or reinforcing the wall could have ameliorated the

danger, particularly when the board’s hired contractors explained that they would do

just that. The trial court had all the facts it needed to determine whether Fairfax’s

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inaction in the face of these conditions constituted a breach of its duty towards KS

Condo, even absent expert testimony.

In concluding otherwise, the court relied primarily on Katkish v. District of

Columbia, which concluded that expert testimony was necessary to assess a

municipality’s care and maintenance of trees in a “non-emergency situation.” 763

A.2d 703, 706 (D.C. 2000). That case involved a man calling the D.C. Department

of Public Works to complain about a “dead” and “leaning” tree, which fell on his

house a week after his call. Id. at 704. But the resident “did not convey the

emergency nature of the situation” because he “made no follow-up contacts” to D.C.

arborists and did not take any other action besides his initial call. Id. at 705. Under

those specific circumstances, we concluded that the trial court did not err in requiring

expert testimony to elucidate “the standard of care the District of Columbia needed

to meet to abate the situation,” specifically, “when a leaning tree may create a

dangerous situation requiring an emergency response and whether the likelihood of

the tree falling is related to the condition of the tree, the street, or other

circumstances.” Id. at 706. Had the District, like Fairfax, taken no action for more

than two years in Katkish—100 times longer than its week of inaction—we suspect

the result in that case would have been different. And here, Fairfax had years of

notice that this was an emergency situation: it was told in 2015, in no uncertain

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terms, that “[d]elaying action could result in the building collapsing” and that “the

danger of the condition” could not be “over emphasize[d].” 4

The question before the trial court was whether Fairfax’s protracted inaction

was reasonable when confronted with dire warnings from its own hired experts. It

was capable of answering that question, one way or another, without the aid of expert

testimony.

B.

We next consider whether the trial court erred in concluding that expert

testimony was required to determine whether Fairfax’s inaction proximately caused

4

Two other cases that the trial court cited are even more clearly not analogous

to this case. In District of Columbia v. Arnold & Porter, 756 A.2d 427, 429 (D.C.

2000), we held that “expert testimony is required to establish the national standard

of care for the operation and maintenance of a municipal water system and the

handling of leaks in that system.” At issue in that case was whether the District’s

response to a ruptured water main pipe, which it resolved in four to five hours, was

unreasonably delayed when “the task could have been accomplished in one to two

hours.” Id. at 430. That question, we concluded, was not something “within the

realm of common knowledge and everyday experience.” Id. at 433. But the trial

court here was not asked to opine upon a delay of hours, but of years. The trial court

also cited District of Columbia v. Billingsley, 667 A.2d 837, 843 (D.C. 1995), a case

that centered on a lack of evidence in the record to show that the District’s actions

caused the plaintiff’s sewage backup. We explained in dicta that aspects of the

standard of care “might be best developed through expert testimony” but that “there

was scant evidence” on which an expert could form an opinion in the first place. Id.

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the wall to collapse and financially injured KS Condo. The trial court concluded

that the cause of the wall collapse was “all speculative” because it was “impossible

to say whether intervening factors existed and whether the proposed work on the

structure would have prevented the collapse.” Continuing this line of thinking on

appeal, Fairfax suggests that a rainstorm could have contributed to the wall’s

collapse. KS Condo argues that, by requiring it to rule out all possible intervening

factors, the court essentially held KS Condo to a “beyond reasonable doubt” burden,

rather than the applicable preponderance of evidence standard. We agree.

A factfinder could conclude that Fairfax’s inaction more likely than not

caused the foundation collapse in the condo unit. A host of facts readily pointed to

that conclusion, including that (1) Fairfax was repeatedly warned, in no uncertain

terms, that it must act immediately to remedy a hazardous condition; (2) Fairfax

understood the gravity of the situation and continually described it as an urgent, top

priority; (3) Fairfax nonetheless took years to solicit bids and apply for the necessary

funding, with long fallow periods scattered throughout the years before the collapse;

(4) no work had commenced in the more than two years during which Fairfax knew

of the problem; and (5) the very danger that Fairfax was repeatedly warned of came

to pass. On much closer facts, we have explained that a plaintiff can prove causation

without needing “to disprove” or “rule out” every other conceivable possibility.

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Providence Hosp., Inc. v. Willis, 103 A.3d 533, 535 (D.C. 2014); see also id. at 535

n.3 (a medical malpractice plaintiff establishes causation by showing that a

hospital’s “negligence ‘more likely than anything else’ contributed to his injury” but

need not “rule out the ‘anything else’”). A factfinder can put two and two together

without the help of an expert mathematician explaining how to do so.

Perhaps, as Fairfax speculates, a rainstorm contributed to the wall’s collapse.

But an expert was not required to rule out such possibilities. A thing about solid

foundation walls is that mere rainstorms do not cause them to collapse. One does

not need to be a structural engineer to know that; they need only observe the world

around them. And Fairfax did not even argue at trial that some contributing cause

obviated Fairfax’s own negligence in failing to maintain the wall in a safe condition.

It instead essentially argued that it acted with reasonable speed and diligence to

address the wall’s condition. We conclude that a factfinder can assess that question

without the aid of an expert.

III.

For the foregoing reasons, we vacate the trial court’s judgment and remand

for further proceedings consistent with this opinion. We are not directing a verdict,

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but concluding only that expert testimony is not necessary to support a verdict in KS

Condo’s favor.

So ordered.