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Homeowner not damaged by defective installation

Virginia Lawyers Weekly//February 4, 2023

Homeowner not damaged by defective installation

Virginia Lawyers Weekly//February 4, 2023

Where a homeowner sued Lowe’s after its plumber allegedly installed a hot water heater “improperly,” but he failed to show any damage, injury or loss that was caused by the allegedly wrongful conduct, Lowe’s prevailed on the claim.


On Aug. 14, 2020, Lowe’s sent a plumber to install a water heater in plaintiff’s condo. Plaintiff alleges that the Lowe’s plumber installed the hot water heater “improperly” and his property suffered damages as a result. Plaintiff asserts a list of grievances following from the alleged faulty hot water heater installation, including that he had to make “dozens of calls” to Lowe’s, and that he had to spend an “exhausting” hour trying to clean the house from the plumber’s visit, plus some additional work trying to fix a “shoe molding” on the floor. Lowe’s has filed a motion for summary judgment.

Economic damages

The court previously held that plaintiff’s amended complaint had fairly raised three claims: breach of contract, negligence and violation of the Virginia Consumer Protection Act, or VCPA. All three counts require injury or damage to plaintiff, caused by Lowe’s allegedly wrongful conduct. Viewing the evidence in the light most favorable to plaintiff and drawing all reasonable inferences in his favor, plaintiff has not put forward evidence as would create a genuine issue of material fact that there was any damage, injury or loss to plaintiff that was caused by Lowe’s allegedly wrongful conduct.

Plaintiff already had a contract to sell the condo for $146,000 when the plumber improperly installed the hot water heater and allegedly caused some damage to the property, and several weeks after that date — by all accounts on schedule — plaintiff sold the condo for the same, contractually-agreed price of $146,000.

These facts demonstrate that in this case, there is no genuine issue of material fact that plaintiff suffered no economic loss that was caused by Lowe’s alleged improper installation of the hot water heater. Plaintiff has claimed that Lowe’s breached its contract with him by not performing the installation in a “good and workmanlike manner,” but the measure of damages for a breach of contract “is the sum that would put [the plaintiff] in the same position, as far as money can do it, as if the contract had been performed.”

Here, plaintiff was in the very same position financially notwithstanding Lowe’s alleged breach, as if their contract had been performed satisfactorily. Indeed, awarding plaintiff compensation though he suffered no economic loss would place plaintiff in a better position than if the contract had been performed to his satisfaction. The law doesn’t allow that result.

Attorneys’ fees

Next, plaintiff, proceeding pro se, effectively seeks an award of attorney’s fees for the time he spent litigating this case. Plaintiff identifies no legal authority or contractual provision supporting his request. As attorney’s fees are not recoverable by pro se litigants, the request will be denied as meritless.

Emotional damages

Plaintiff also seeks to recover for “psychological trauma” that he claims to have experienced from his interaction with Lowe’s. The Supreme Court of Virginia has explained, “regardless of how foreseeable non-pecuniary loss flowing from a contractual breach may be, such non-pecuniary injury is not recoverable in a breach of contract claim.”

Plaintiff’s request for emotional damages fares no better under his negligence or VCPA claims. “The general rule in tort cases is that, in the absence of accompanying physical harm or wanton and willful conduct, emotional distress damages are not recoverable.” Plaintiff has not asserted (much less put forward evidence creating a genuine issue of material fact on the issue) that he suffered any physical injury on account of Lowe’s allegedly negligent conduct. Nor do plaintiff’s assertions regarding Lowe’s conduct, devoid of his unsupported conclusory allegations, establish “willful and wanton” misconduct.

Defendant’s motion for summary judgment granted.

Liu v. Lowe’s Home Improvement, Case No. 3:20-cv-00056, Jan. 20, 2023. WDVA at Charlottesville (Moon). VLW 023-3-025. 9 pp.

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