DocketNumber: No. CV 9400310860
Citation Numbers: 1994 Conn. Super. Ct. 11545, 12 Conn. L. Rptr. 686
Judges: LEVIN, JUDGE.
Filed Date: 11/17/1994
Status: Non-Precedential
Modified Date: 4/18/2021
The defendant did have a contract to repair and maintain the plaintiff's gas furnace. That contract, if in writing, was not offered in evidence, nor was there evidence as to its terms. However, "as a general rule, there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner. . . . With respect to the skill required of a person who is to render services, it is a well-settled rule that the standard of [care] . . . is that degree of skill, efficiency, and knowledge which is possessed by those of ordinary skill, competency, and standing in the particular trade or business for which he is employed. . . . Where skill as well as care is required in performing the undertaking, he is bound to exercise due and ordinary skill or, in other words, to perform in CT Page 11546 a workmanlike manner. In cases of this sort he must be understood to have engaged to use a degree of diligence and attention and skill adequate to the performance of his undertaking." 17A Am.Jur.2d, Contracts, § 628. However, he does not become a guarantor of the results. Id., p. 637.
With respect to the plaintiff's claim of negligence, the standard is that the defendant, as an expert, was required to use that degree of care which a similarly skilled person of ordinary prudence would have used under the same or similar conditions.Calderwood v. Bender,
Cognizant that the defendant was duty-bound to employ this degree of care, the court nonetheless concludes that the defendant neither breached its contract with the plaintiff nor was negligent.
The plaintiff telephoned the defendant and advised its receptionist/dispatcher that when his thermostat was "calling for heat . . . the furnace was not on" and failed to ignite. He opined to that recipient of his call that "the ignition for the furnace . . . was not firing properly" and he requested that his furnace be serviced. A service man was dispatched and repeatedly checked out the furnace. While the information imparted by the plaintiff was not relayed verbatim to the service man, there is no evidence that the service man would have or should have done anything differently had he been given the plaintiff's comments verbatim.
The defendant's service man also testified that had he known that the furnace was shutting down when it was on and that in order to get it to function again the plaintiff had to turn the switch on and off,1 he "would have condemned the valve" and replaced it. Indeed, after the furnace finally failed while the plaintiff was away on vacation, the valve did have to be replaced when the furnace was repaired. However, this information was not relayed to the defendant by the plaintiff.
"Under the facts of this case, in the absence of expert CT Page 11547 testimony explaining how the work performed . . . failed to comply with `that degree of care which a skilled [person] of ordinary prudence would have exercised under the same or similar conditions' . . . and how that negligence caused the damages complained of, a factfinder could not properly have inferred this fact." D'Esopo Co. v. Bleiler,
In its answer, the defendant denied that it had a contract with the plaintiff for the repair and maintenance of the plaintiff's gas furnace. At trial, the plaintiff established through himself and the defendant's repairman that there was such a contract and that there was no reason why the defendant should have denied that fact. The plaintiff requested expenses for proving that fact, pursuant to Practice Book § 111.2 Based on the uncontroverted evidence, the denial is found to have been made without reasonable cause and to have been untrue. That judgment is to be rendered for the defendant is not a defense to a violation of Practice Book § 111. See Jennings Co., Inc. v. DiGenova,
"It was the plaintiff's burden to prove his own case by a preponderance of the evidence." Vigorito v. Alard,
BY THE COURT
Bruce L. Levin Judge of the Superior Court