September 21, 2012
JOHN GARCZYNSKI, PLAINTIFF-APPELLANT,
CARMEN JOHN DISTEFANO, DEFENDANT, AND MERMAID'S COVE MARINA, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. DC-4970-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 8, 2012
Before Judges Yannotti and Kennedy.
Plaintiff John Garczynski appeals from a final judgment in the Special Civil Part, following a bench trial, in favor of defendant Mermaid's Cove Marina dismissing his complaint for damages to his boat allegedly caused by defendant's faulty repair work. Plaintiff argues that the trial court's "factual findings and credibility findings were inadequate and insufficient to negate clear proof of negligence." We disagree and affirm.
We discern the facts from the trial record. Plaintiff owned a 1987 Bayliner motor boat, and in 2006 he engaged Fuller Marine & Machine, Inc. to replace the engine with a new "long block" that was "partially dressed." This meant that, while many of the engine components were also replaced, many others that were part of the old engine were re-installed on the new long block. At the same time, Fuller installed exhaust risers on the boat that plaintiff had supplied. The risers were not new at that time, however. Thereafter, the boat ran "okay," according to plaintiff.
Plaintiff kept the boat at the Mermaid's Cove Marina in Brick. The marina was acquired by Carmen John DiStefano (DiStefano) in October 2008. At some point toward the end of 2008 or shortly thereafter, plaintiff discovered that he had a water leak in the boat and that water was accumulating in the bilge. He asked DiStefano*fn1 to make the repair. On March 28, 2009, believing that the most likely cause of the problem was a leaking water tube within the engine, DiStefano pulled the engine out, caulked the area around the tube and re-bedded the engine. When the boat was returned to the water, DiStefano took it out for a test-drive, and found that the engine ran well with no indication that there was water within the engine itself. However, despite the repair, water continued to accumulate in the bilge, and plaintiff and Distefano had some discussions about the problem.
Next, plaintiff complained he was having trouble with the starter and on April 8, 2009, DiStefano replaced a wire which corrected the problem. Again, there was no suggestion that there was water in the engine.
On May 26, 2009, DiStefano again worked on plaintiff's boat because water was still accumulating in the bilge. DiStefano had earlier discovered that the leak was the result of a problem in the exhaust pipe, and he volunteered to "pull the engine" and replace the exhaust "Y pipe" for just the cost of the part. Plaintiff agreed and DiStefano ordered the part and the internal "flappers" from the engine manufacturer.
A "flapper" is a circular piece of metal that fits onto a pivot within the Y pipe. The purpose of a flapper is to keep water from backing into the engine through the exhaust ports. The flapper pivots outward due to exhaust pressure to allow exhaust fumes to escape, but closes off the pipe in response to pressure from outside the engine.
DiStefano testified that he installed the Y pipe and the factory-specified flappers and found the flappers "fit perfectly." He thereafter took the boat out for a test-drive and found that the leak had stopped, there was no water in the engine and that the engine "ran fine."
DiStefano stated that plaintiff never reported any problem with the boat thereafter, although in June 2009 he asked DiStefano if he would "tune" the engine. DiStefano replied that he would not work on the boat again unless plaintiff cleaned it up. DiStefano reported that the boat was in a filthy condition with evidence of mold and a non-working holding tank for human waste. DiStefano felt the boat was a "health hazard" and explained that other boat owners had complained about its condition and smell.
Plaintiff testified, however, that after the May 26, 2009, repair, he took the boat out for a test-drive and thought he heard a "miss" in the engine after about forty minutes of use.
He claims he brought it back to DiStefano and asked for a tune-up, and that DiStefano later told him that "we can't figure out the problem." He asserts he inquired about the boat every week thereafter for the rest of the summer, but was told "different things" by DiStefano each time. Plaintiff claims he never used the boat after May 26, 2009.
DiStefano denied plaintiff's averments, and asserted that plaintiff had, in fact, taken his boat out on several occasions over the summer of 2009 and never complained about a continuing problem with the engine. He indicated, however, that his relationship with plaintiff began to deteriorate when he moved plaintiff's boat to another slip in the marina. He added that plaintiff never cleaned up the boat and, at trial, presented several photographs of plaintiff's boat illustrating its deteriorated condition.
In November 2009, plaintiff arranged to have his boat transported to the Baywood Marina where it was stored for over one year. Baywood representatives examined plaintiff's boat and gave him an estimate for a repair, but the record does not indicate what that estimate or repair proposal entailed. The boat remained at Baywood until December 2010, when it was picked up and transported to the marine repair yard of William Clark.
Clark found that the starter motor had been taken off the engine and left on the floor of the boat, and that the spark plugs had been removed. He found the spark plugs themselves within the boat and saw they were rusty. Also, he found that the engine was "seized."
Clark explained that engine seizures are "usually due to water intrusion" and so he began a "systematic investigation" of the engine to find the source of the intrusion. He claims he pressure-tested various components of the engine, including the exhaust risers, and found no leakage. However, when Clark looked into the Y pipe, he found the flappers "were much smaller than they need to be" and opined that that condition allowed water to "come up those exhaust pipes into the exhaust system." He also stated the flappers were oval and were the wrong shape for the pipe.
Clark also explained that water in the exhaust system would penetrate into the "piston area," where it would mix with gas and cause the engine to run "real bad." The water would then corrode the interior of the engine and cause it to seize up. Clark added that the engine on plaintiff's boat was rusted on the inside and required replacement.
Further, Clark opined that the installation of flappers that were too small for the exhaust pipe permitted salt water to leak into the engine and that the installation of the undersized flappers was a "definite" and "obvious" mistake. He identified the flappers as the cause of the water intrusion based on plaintiff's allegation that the engine misfired on the first use of the boat after the May 26, 2009 repair and the pressure testing Clark undertook in December 2010 which, in his view, eliminated other potential sources of water intrusion.
DiStefano testified that the flappers he installed were specified by the manufacturer for the Y pipe and that the flappers fit perfectly when he installed them. He also explained that there could be many causes for water in an engine and that flappers usually prevent water intrusion when an engine is overheated or is shut down while "idling very fast." Most of the time, in his opinion, water in an engine enters through the exhaust risers, manifolds or "blown" gaskets. He added that another source of water is through the deck, and that on plaintiff's boat, there was a "jury-rigged plate covering the carburetor" and that "every time" he was on the boat he saw water on the "intake manifold."
DiStefano also stated that Clark's testing procedures were faulty because the tests were not run on a hot engine. He stated that metal expands when heated and that the metal parts of an engine, when heated, can reveal leakages not apparent when the metal is cold. He explained that to test for leaks on a seized engine, one uses a "torch to get them hot to see if we can get leakage."
The trial judge found that plaintiff was not credible at trial and that DiStefano was credible. The judge explicitly disbelieved the testimony of plaintiff that he complained about the engine misfiring after the May 26, 2009 repair and found that "there was no mention of any problem regarding misfiring," as DiStefano had testified. The judge also found that plaintiff's boat was in very poor condition throughout the time it remained at Mermaid's Cove Marina. Further, the judge found credible DiStefano's testimony that plaintiff had used the boat without complaint several times in the summer of 2009.
With respect to the examination of the boat by Clark, the judge noted that the starter engine was off and the spark plugs were out when Clark first looked at the engine in December 2010. The judge also stated, I found Mr. DiStefano's testimony convincing and persuasive when he said that Mr. Clark's testing of other potential causes of this failure was lacking. He went into some specific details and specifically also about the heat, which makes sense to, again, my common sense non-mechanical mind that that would be something that you would include as part of a test with an exhaust pipe that's going to be hot and also with the other parts too that are going to be hot, the engine, not just the exhaust pipe.
I believe [DiStefano] when he said there were other potential causes and with this gap in time of being so great and with my not believing Mr. Garczynski but believing . . . Mr. DeiStefano, if I can put it that way, regarding the use of the boat during the summer 2009, again, Mr. Clark candidly said he relies upon the factual scenario as outlined to him as to what happened by Mr. Garczynski, and I found that factual scenario is not credible and, again, whatever Baywood did or didn't find or whatever they, I can't speculate, but I find that Plaintiff has failed to prove that the smaller flapper in the exhaust pipe caused this engine failure.
The judge thereafter entered judgment for defendant dismissing plaintiff's complaint with prejudice.
As noted earlier, plaintiff contends his proofs clearly established a cause of action against defendant and that defendant's faulty repairs proximately caused damage to the boat. We examine these claims against the applicable principles of law.
Plaintiff's claims against defendant sound in negligence. That is, plaintiff contends that defendant negligently repaired his boat and caused it to suffer damages requiring the installation of a new engine. Plaintiff's claims hinge upon proof of the well-established elements of a negligence action:
(1) duty of care, (2) breach of that duty, (3) proximate causation, and (4) injury. Weinberg v. Dinger, 106 N.J. 469, 484 (1987). It is axiomatic that a plaintiff asserting a negligence claim must establish that the asserted unreasonable acts or omissions by the defendant proximately caused his or her injuries. Rappaport v. Nichols, 31 N.J. 188, 203 (1959); Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309-11 (App. Div.), certif. denied, 156 N.J. 386 (1998).
We briefly set forth the principles that guide our analysis. "Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review." Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Consequently, we will not disturb the "factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova, supra, 65 N.J. at 484 (citation ommitted); See also Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
On appeal, plaintiff complains that the trial judge erred when he determined that "causation was not sufficiently proven by plaintiff." However, the judge reasonably considered the testimony of both Clark and DiStefano and found that Clark's conclusions were not persuasive. This task is precisely what a factfinder is called upon to undertake, and we see no reason to second-guess the trial judge's conclusions. "Ordinarily, the issue of proximate cause should be determined by the factfinder." Fluehr v. City of Cape May, 159 N.J. 532, 543 (1999) (citing Scarfidi v. Seiler, 119 N.J. 93, 101 (1990)).
This case is one in which reasonable minds could certainly differ on whether the flappers proximately caused plaintiff's damages. Clark's conclusions, in part, were based upon testimony from plaintiff which the trial judge explicitly found not to be credible, and a testing method the trial judge found "was lacking" in reliability. These findings are certainly supported by the record and thus are binding on appeal.