MSJ Response

I have a fire case with total loss of a large metal building and all content. Defendant (co-tenant) has filed for summary judgment claiming we cannot establish causation. All experts, including defendant's, agree that origin was in defendant's half of the building and that because of the extent of the fire, specific cause will never be known. They all also agree that two potential causes were in exact area of fire origin: (1) extension cord running (in violation of National Electric Code) through metal skin of the building and showed evidence of faulting; and (2) history of defendant's employee smoking right before fire started. Under NFPA 921, because there is more than one potential cause, fire has to be listed as "undetermined." My cause/origin and electrical engineer experts (and other investigators) have testified that we know one of the two causes but can't say either one qualifies as "probable" (51% or greater) under NFPA 921 because of the extensive fire damage.

First question: Does defendant get off the hook for lack of causation based on the fact that the fire they negligently caused rendered a "probable" finding impossible using NFPA jargon? (The "undetermined" categorization is the entire basis for summary judgment.)


Second question: Does defendant get the benefit of evidence being destroyed through its negligent actions to the point that "probable" cause of the fire cannot be established? (For instance, in medical cases, health care providers should not be given the benefit of the uncertainty created by their own negligent conduct.


Answer:
The early common law rule which would have helped you, the "ignus suus" rule is no longer applied: Early common law rule that a landowner is strictly liable for fire which escapes from his land was modified by statutes (6 Anne, c.31, §6, amended by 14 Geo. 3, c.78, §86) forbidding imposition of liability, so American common law did not incorporate the early rule: 3 Harper §14.15 at 326-28 (2d Ed. 1986); Prosser & Keeton §77 at 543-44 (5th Ed. - Student Ed. 1984)

However, you probably can apply res ipsa.

See: Okmulgee Supply Corp. v. Hall, 1945 OK 157, 158 P.2d 1014, 1016: "Where, as here, the house, the materials therein stored, and the stove containing fire are shown to be under the management of defendant or its employees, and the injury and damage are such as in the ordinary course of things does not happen if those who have its management or control, use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the injury and damage arose from want of care so that the occurrence of the fire, under the circumstances set forth, raises a presumption and permits an inference that those in possession were guilty of negligence. Muskogee Elec. Traction Co. v. McIntire, 37 Okl. 684, 133 P. 213, L.R.A.1916C 351."

See also: Deweese v. Patterson UTI Drilling Co., 2010 OK 10, 229 P.3d 540: "¶ 11 Plaintiffs argue first that the court erred in its requirement of proof of a single identifiable negligent act and actor which caused the injury, because the purpose of res ipsa loquitur is to allow a jury to infer negligence from an injurious occurrence without the aid of circumstances pointing to the responsible cause. Jackson v. Oklahoma Memorial Hospital, 1995 OK 112, 909 P.2d 765, 770. Additionally, they correctly point out that the Oklahoma Pleading Code does not require a plaintiff to choose between alternate fact versions in the pursuit of a claim. Qualls v. U.S. Elevator Corp., 1993 OK 135, 863 P.2d 457, 463.

[3] ¶ 12 Plaintiffs point out that the record before the trial court is replete with competent evidence that Patterson did have exclusive control over the entire rigging-up operation and the rig components, including the one which proximately caused Donald Deweese's injury when it fell onto his bulldozer. They contend there was ample evidence before the jury from which it could conclude that Patterson had exclusive control over the instrumentality that caused the accident and that the accident arose from Patterson's want of due care.

¶ 11 Plaintiffs argue first that the court erred in its requirement of proof of a single identifiable negligent act and actor which caused the injury, because the purpose of res ipsa loquitur is to allow a jury to infer negligence from an injurious occurrence without the aid of circumstances pointing to the responsible cause. Jackson v. Oklahoma Memorial Hospital, 1995 OK 112, 909 P.2d 765, 770. Additionally, they correctly point out that the Oklahoma Pleading Code does not require a plaintiff to choose between alternate fact versions in the pursuit of a claim. Qualls v. U.S. Elevator Corp., 1993 OK 135, 863 P.2d 457, 463.

[3] ¶ 12 Plaintiffs point out that the record before the trial court is replete with competent evidence that Patterson did have exclusive control over the entire rigging-up operation and the rig components, including the one which proximately caused Donald Deweese's injury when it fell onto his bulldozer. They contend there was ample evidence before the jury from which it could conclude that Patterson had exclusive control over the instrumentality that caused the accident and that the accident arose from Patterson's want of due care."

Tags: “ignis suus” fire liability escape land “res ipsa”