Heller v. D.W. Fish Realty Co., Inc.: Salesperson Liable for Incomplete Well Testing

Christine and Richard Heller ("Buyers") entered into an agreement to purchase a home. The Buyers were represented in the transaction by Joann Marozzi ("Salesperson") of D.W. Fish Realty Company, Inc. ("Brokerage"). The Salesperson undertook a variety of responsibilities to help the Buyers complete the transaction, including acting on their behalf with inspectors and attorneys.

One of the contingencies in the purchase contract was a "satisfactory test of the well system to be performed by a competent well inspector". An unsatisfactory report would allow the Buyers to cancel the purchase agreement. During a visit to the property, the Salesperson observed the dug well on the property but did not examine the well in any other way. At the Buyers behest, the Salesperson hired a home inspector who tested the potability of the well water but did not physically inspect the well. The potability test did not reveal any problems with the well water, and no other inspections of the well and its water were performed.

The transaction closed. Following the closing, the Buyers learned that animals were able to access the well and contaminate the water. As a result, the Buyers had to drill a new well on the property. The Buyers brought a lawsuit against the Salesperson and the Brokerage, alleging negligence, breach of the state's consumer protection act, and breach of contract. A jury returned a verdict in favor of the Buyers on all allegations, and the Salesperson and Brokerage filed a motion with the court asking the judge to set aside the verdict.

The Superior Court of Connecticut, Judicial District of Tolland, rejected the challenge to the jury's verdict. First, the court considered whether the Salesperson had a duty to contract for a physical inspection of the well, rather than a simple water test. A negligence claim requires a showing that one party owed the other a duty. The court found that the Buyers had relied upon the Salesperson to contract for a complete and competent inspection of the well. The fact that the Salesperson believed the water test alone was sufficient did not alleviate her from the duty of assuring that the property's well system was in proper working order, once she assumed the responsibility to arrange for the testing of the well system. The Salesperson had a duty to arrange for a competent inspection of the well, and the jury found she failed to do so, a conclusion which the evidence could support. Thus, the court stated that it would not set aside the jury's negligence verdict.

Next, the court considered whether the breach of contract allegations should be set aside because the Buyers had not produced an enforceable contract between the Buyers and the Brokerage. The court found that a jury could find a valid contract by evaluating the facts of a case to determine if the behavior of the parties demonstrated an implied contract. Here, the evidence supported the jury's finding of a contract, as the Salesperson conducted many activities on behalf of the Buyers related to the property they purchased, including negotiations as well as working with the inspectors and attorneys involved with the transaction. Thus, the court found that the evidence supported the jury’s finding of a contract and so the court did not set aside the breach of contract allegations.

Finally, the court considered whether the Salesperson and Brokerage violated Connecticut's unfair trade practices act. In order to recover under the act, a consumer must show that a deceptive or unfair trade practice resulted in the consumer receiving something less than he or she bargained for. Here, the Buyers received a contaminated well, so they clearly received something less than they bargained for. Thus, the court upheld the award under the unfair trade practices act. However, in a later motion filed by the Buyers seeking attorneys’ fees pursuant to the act, the court declined to award the Buyers these fees under the act because the Buyers had failed to submit sufficient evidence to the court to allow to make an award. Thus, the court upheld the jury verdicts in favor of the Buyers but did not award them attorneys’ fees.

Heller v. D.W. Fish Realty Co., Inc., No. CV000073297, 2004 WL 1615976 & 2943224 (Conn. Super. Ct. June 29 & Nov. 16, 2004). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].

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