438 Main Street v. Easy Heat, Inc.

• Decision Date: 24 August 2004
• Docket Number: No. 20010629.,20010629.
• Citation: 99 P.3d 801,2004 UT 72
• Parties: 438 Main Street, a Utah general partnership, and Rainbow Trout, Inc., dba Pop Jenk's, a Utah corporation, Plaintiffs and Appellant, v. Easy Heat, Inc., a Delaware corporation; Heron Cable Industries, a Canadian corporation; PK Supply, a California corporation; Alpine Electric, Inc., a Utah corporation; Deseret Roofing, a Utah corporation; Moon Roofing, a Utah corporation; Melva Garcia, a resident of the State of Arizona; Dion Hale, a resident of the State of Utah; Quality Interiors, Inc., a Utah corporation, Defendants and Appellee.
• Court: Utah Supreme Court

2004 UT 72

99 P.3d 801

438 Main Street, a Utah general partnership, and Rainbow Trout, Inc., dba Pop Jenk's, a Utah corporation, Plaintiffs and Appellant, v. Easy Heat, Inc., a Delaware corporation; Heron Cable Industries, a Canadian corporation; PK Supply, a California corporation; Alpine Electric, Inc., a Utah corporation; Deseret Roofing, a Utah corporation; Moon Roofing, a Utah corporation; Melva Garcia, a resident of the State of Arizona; Dion Hale, a resident of the State of Utah; Quality Interiors, Inc., a Utah corporation, Defendants and Appellee.

No. 20010629.

Supreme Court of Utah.

FILED August 24, 2004.

This opinion is subject to revision before final publication in the Pacific Reporter.

Richard A. VanWagoner, Andrew M. Morse, David F. Mull, Salt Lake City, for plaintiff.

John A. Anderson, Matthew D. Moscon, Salt Lake City, for defendant Easy Heat, Inc.

DURRANT, Justice:

¶1 This case involves an appeal from a district court's grant of a rule 41(b) motion to dismiss. Because the district court did not err in considering part of the defendant's evidence when ruling on the motion, and because the district court's findings of fact are not clearly erroneous, we affirm.

BACKGROUND

¶2 At approximately 1:30 on the morning of June 15, 1993, a fire broke out in the 436 Main Street building in Park City, Utah. Despite local firefighting efforts, the fire spread to the neighboring 438 Main Street building. Although the fire was successfully extinguished near dawn, both the 436 and 438 Main Street buildings were substantially damaged.

¶3 Plaintiff 438 Main Street ("Plaintiff") believed the fire originated from the exterior southeast corner of the 436 Main Street building and was caused by a deicing cable that had been installed on the roof of the building to melt snow and ice. Specifically, Plaintiff believed the deicing cable had been damaged when it was improperly nailed to a wooden fascia board on the building, and that when the toggle (on/off) switch to the cable was negligently left in the "on" position, the damaged cable overheated and ignited the board to which it was attached, ultimately leading to the destruction of both the 436 and 438 Main Street buildings. Consistent with this theory, Plaintiff filed a complaint against numerous parties, including defendant Easy Heat, Inc. ("Defendant"), the manufacturer of the deicing cable. Pursuant to Utah Code section 78-15-6,¹ Plaintiff alleged that Defendant was strictly liable for the damage caused by the fire because the cable (1) contained defects in its design and manufacture, and (2) failed to include warnings and instructions concerning the cable's installation, maintenance, and use.

¶4 After a long discovery period, Judge Anthony B. Quinn granted summary judgment in favor of Defendant on Plaintiff's warning claim. One year later, in May 2000, Plaintiff proceeded to try its defect claim in an eight-day bench trial before Judge William A. Thorne. Because one of the primary issues on appeal concerns whether the district court clearly erred in finding that the deicing cable was not the proximate cause of the fire, we describe in detail the extensive evidence that was introduced by both parties to the district court.

I. PLAINTIFF'S EVIDENCE

¶5 During the trial, Plaintiff presented evidence painting the following picture.

A. The Scene of the Fire

¶6 In the early morning hours of June 15, 1993, Bill Ferris, a bartender who worked in the basement establishment of the neighboring 438 Main Street building and the first eyewitness of the fire, purportedly saw flames on the exterior of the 436 Main Street building in the southeast corner at roof level.² After calling 911, Mr. Ferris made several attempts to extinguish the fire using two five-gallon buckets until he believed the fire had been put out.

¶7 Several witnesses corroborated Mr. Ferris's account, reporting that they too had seen flames originating from the southeast corner of the 436 Main Street building. For example, Robert Anderson, a Park City firefighter who arrived on the scene shortly after the first fire engine unit, saw a small amount of fire coming from the rear of the south end of the building, where a wooden soffit board was attached just below the roof line. Park City Fire District Chief Kelly Gee, who arrived on the scene at approximately 2:00 a.m., also saw fire coming from the rear exterior southeast corner of the building. Finally, Park City Fire Marshal Sam Coleman, who arrived at around the same time as Chief Gee, saw what he described as "remnants" of the fire and smoke emanating from the southeast corner of the 436 Main Street building.

¶8 Although the firefighters proceeded to battle the blaze, they had difficulty extinguishing the fire because it had, according to Captain Robert Burns, spread from the roof of the southeast corner storage room up through the common wall between the 436 and 438 Main Street buildings and into the ceiling space of the 438 Main Street building, where the fire was difficult to reach. Consequently, between an hour to an hour-and-a-half after the first firefighters arrived, two firefighters attempted to trench ventilation holes in the roof of the 436 Main Street building to let the fire out. These efforts were unsuccessful, however, and the fire continued to burn.

¶9 At approximately 4:00 a.m., when the fire had grown to such intensity that Chief Gee feared the fire would spread into the building north of the 438 Main Street building, he ordered his firefighters to act defensively and called for help from the Salt Lake County Fire Department. With the aid of these additional firefighters, the fire was finally extinguished later that morning.

B. Plaintiff's Origin and Causation Experts

¶10 At trial, Plaintiff presented five expert witnesses who testified that the fire originated where Defendant's deicing cable was attached to the wooden fascia board near the roof line of the southeast corner of the 436 Main Street building. The first of these was Sam Coleman, one of the firefighters on the scene and an experienced fire investigator who had worked as a fire marshal with Park City for ten years. Mr. Coleman testified that, based on his investigation, he believed the fire probably originated on the exterior southeast corner of the 436 Main Street building. He based this conclusion on the observations of those individuals who had witnessed the fire, including firefighters and police, as well as on his own evaluation of the fire damage in that area. He opined that the fire originated in the space above the ceiling but below the roof joists of the southeast storage room of the 436 Main Street building, from where it moved west until it collided with the two walls separating the showroom area from the storage area, burned through those walls and spread into the attic area above the 438 Main Street building showroom.

¶11 Mr. Coleman further testified that, based on his identified area of origin, Defendant's deicing cable was the most probable ignition source of the fire. He explained that when investigating the area, he eliminated several other potential sources of ignition, including a nearby ventilation hood and orange communication cable because they showed no signs of damage consistent with their having been the source of the fire. After speaking with Utah Power & Light representatives who examined their electrical equipment, he also eliminated the building's power line as a potential source of the fire. Having eliminated these sources, Mr. Coleman concluded that the only remaining source capable of having started the fire was the deicing cable that he had discovered burned in two. He based this conclusion on his observation that the cable's power cord was plugged into the melted exterior duplex (electrical outlet) in the southeast corner of the 436 Main Street building with the toggle switch controlling the cable in the energized "on" position.

¶12 Park City fire marshal Ronald Dean Ivie also opined, through proffered testimony, that there was no other logical source of ignition in the area of origin other than the deicing cable. Mr. Ivie began his cause and origin investigation at 7:00 a.m. on June 15, 1993, approximately one and one-half hours after the fire was put out. He first examined the general overall burn pattern in the buildings. Because the heavier burn damage was located in the southeast corner of the 436 Main Street building, Mr. Ivie concluded that the fire likely began there.

¶13 Moreover, Mr. Ivie also concluded that the deicing cable found hanging from the roof in his identified area of origin was the most probable source of the fire. Like Mr. Coleman, Mr. Ivie eliminated other potential sources of ignition. Specifically, he ruled out a nearby electrical service mast (a cylindrical device that brought the main electrical supply into the building) and its attached meters as having caused the fire. Although the conduits had suffered from what he described as two or three blown holes, Mr. Ivie stated that the damage was consistent with arcing and that it did not indicate that the conduits were the cause of the fire. As to the deicing cable itself, Mr. Ivie observed that the switch to the deicing cable was in the "on" position, that the burned remnants of the deicing cable were still plugged into the melted receptacle outlet, that the circuit breaker for the cable's receptacle outlet was tripped, and that one of the conductors on the deicing cable was broken at what appeared to be an electrical staple. Based on these observations, Mr. Ivie reasoned that the deicing cable was the source of the fire.

¶14 Following his own investigation later that day, Robert Jacobsen, a burn pattern analyst hired by the insurance carrier of the 436 Main Street building's owner to investigate the origin and cause of the fire, also concluded that it was "pretty clear" the fire started in the southeast corner on the exterior of the 436 Main...