Brinegar v. Robertson Corp.

• Decision Date: 28 February 1990
• Docket Number: No. 47A04-8811-CV-388,47A04-8811-CV-388
• Parties: Gladys BRINEGAR and Harold F. Hodges, Appellants, v. ROBERTSON CORPORATION, Appellee.
• Court: Indiana Appellate Court

Page 812

550 N.E.2d 812

Gladys BRINEGAR and Harold F. Hodges, Appellants, v. ROBERTSON CORPORATION, Appellee.

No. 47A04-8811-CV-388.

Court of Appeals of Indiana,

Fourth District.

Feb. 28, 1990.

Edward F. McCrea, McCrea & McCrea, Bloomington, for appellants.

James L. Whitlatch, Bunder, Robertson, Kelley & Steger, Bloomington, for appellee.

MILLER, Judge.

Plaintiffs-appellants Gladys Brinegar and Harold Hodges appeal the trial court's judgment in favor of defendant-appellee Robertson Corporation (Robertson) in an action based on negligence for property damages which occurred when a fire originated on Robertson's property and spread to adjacent property owned by Brinegar and Hodges. Brinegar and Hodges, claiming damages of $45,652.66 and $9,000.00 respectively, sued Robertson for negligence. At the trial, the court rejected Brinegar and Hodges' theory of res ipsa loquitur and the case proceeded on a theory of negligence. The jury found against Brinegar and Hodges. Brinegar and Hodges appeal claiming the following issues::

1. Whether the trial court erred in failing to give an instruction on the doctrine res ipsa loquitur and the granting of a motion for judgment on the evidence on this issue where the cause of the fire was undetermined;

2. Whether it was error for the trial court to permit two witnesses to testify that defendant's conduct was reasonable; that fires can start without fault; and that no other lawsuits were filed against Robertson, implying defendant could not have been negligent;

3. Whether it was error for the trial court to fail to give further instructions to the jury upon the receipt of a note from the jury after deliberations had begun.

We affirm.

FACTS

In August, 1986 a fire occurred in Bedford, Indiana originating in a mill owned and operated by Robertson. The fire began a few hours after the mill closed and spread to real estate owned by Brinegar and Hodges.

The mill was a large building primarily constructed of wood that had a portion of its structure built during the year 1881. The mill processed wheat into a biscuit flour-like substance that was sold as an adhesive extender, similar in purpose to glue, used in the manufacturing of plywood and veneers. The manufacturing process included the use of six large rollers, which needed lubrication because of friction involved, to grind the wheat. A dust control system was installed to prevent dust explosion.

The building was regularly inspected by the fire department and always passed inspection. There was no evidence the fire was caused by a dust explosion. Although Robertson did not have a central alarm system, sprinkling system, or a night watchman on its premises, Robertson took all precautions required of it or suggested to it by the local fire department. The building was regularly inspected and complied with all relevant codes. No sprinkling systems or alarms were required and there was testimony indicating that they probably would not have prevented the fire.

The origin of the fire could not be determined by any expert. Machines used in the mill were checked after the machines were turned off for the day. The motors were inspected after the fire and it was not determined that they had anything to do with the cause of the fire. There was testimony from experienced firefighting officials indicating that a fire can start without fault. There was also testimony that an individual had admitted starting the fire at the Robertson mill. Arson was not ruled out as a cause.

Additional facts will be given when necessary to the decision.

ISSUE ONE

Removal of the doctrine of res ipsa loquitur from jury consideration.

Brinegar and Hodges argue that the trial court erred by preventing the jury from considering whether the doctrine of res ipsa loquitur should apply to this case. At the conclusion of plaintiffs' evidence, Robertson made a motion for judgment on the evidence requesting that the doctrine be withdrawn from the jury. After hearing argument of counsel, the trial judge removed the doctrine from the case because arson had not been ruled out. The judge reasoned that it was not "fair to charge someone with a duty to prevent arson."

Because the refusal of the instruction and judgment on the evidence are related, we will discuss these issues together. The doctrine of res ipsa loquitur is a rule of evidence whereby an inference of negligence can be drawn under certain factual circumstances. SCM Corp. v. Letterer (1983), Ind.App., 448 N.E.2d 686, 689. There are three prerequisites to the application of the doctrine. As stated in SCM Corporation, they are: (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it was not due to any voluntary action or contribution on the part of the plaintiff. See also W. Prosser, Law of Torts, Sec. 39, page 214 (4th ed. 1971); I.L. Friemer and M. Friedman, Products Liability Sec. 12.03.

Robertson contends that the only prerequisite met in the present case is that the event was not due any voluntary action or contribution on the part of the plaintiffs, and, since the other prerequisites were not met, the granting of the directed verdict and the refusal of plaintiff's final instruction number one was proper. We agree.

A review of the Indiana cases which have considered the res ipsa loquitur question reveals that there are no cases which address the issue of whether the doctrine can be considered by the jury when the cause of the fire has not been established. ¹ However For instance, in Menth v. Breeze Corporation (1950), 4 N.J. 428, 73 A.2d 183, 18 A.L.R.2d 1071, the plaintiffs suffered damage when their household furnishings and personal effects (located in their apartment) were destroyed by a fire which started in an adjoining shed on an unimproved lot which was leased and used by the defendant. In the shed were stored burlap bags, with an oily discolored appearance, which were used to transport waste aluminum shavings from the defendant's factory to the shed. The bags were emptied into another shed; however, they may have contained aluminum shavings which adhered to the insides of the bag. The court discussed the rule of res ipsa loquitur as applied to cases involving fires in the following language which we find persuasive:

a review of the cases from other jurisdictions reveal persuasive arguments that the doctrine should not apply under these circumstances.

The rule of res ipsa loquitur is infrequently applied to cases involving fires, and to a lesser extent to explosion cases. Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W.2d 777, 78 A.L.R. 722 (Mo.Sup.Ct.1930); Highland Golf Club of Iowa Falls, Iowa v. Sinclair Refining Co., 59 F.Supp. 911, 919 (Iowa Dist.Ct.1945); Keyser Canning Co. v. Klots Throwing Co., 94 W.Va. 346, 118 S.E. 521, 31 A.L.R. 283, 292 (W.Va.Sup.Ct.1923); Noonan v. Great Atlantic & Pacific Tea Co., 104 N.J.L. 136, 138, 139 A. 9, 56 A.L.R. 590 (E. & A.1927); 22 Am.Jur. (Explosions and Explosives) Sec. 95, p 212. The reasons are not difficult to perceive. The cause of a fire is generally unknown, fires commonly occur where due care has been exercised as well as where due care was wanting. Where a fire originates on a defendant's premises, that alone is not evidence that it was started by the defendant, nor that the fire was caused by any negligence on its part. Little v. Lynn & Marblehead Real Estate Co., 301 Mass. 156, 16 N.E.2d 688 (Mass.Sup.Jud.Ct.1938); Brownhill v. Kivlin, 317 Mass. 168, 57 N.E.2d 539, 540 (Mass.Sup.Jud.Ct.1944); 22 Am Jur (Fires) Secs. 75 and 76, pp. 642-643.

Whether a fire case falls within the operation and scope of the res ipsa loquitur rule must of necessity depend upon the particular facts and circumstances appearing in the individual case. The surrounding circumstances under which a fire is communicated to the premises of a neighbor may in exceptional or unusual cases justify the application of the rule. The general rule, however, is that the destruction of property by fire, either on premises where it starts, or upon other property to which it is communicated, does not of itself raise a presumption of negligence in either the kindling or management of the fire unless there are special circumstances present that lead to a reasonable conclusion that due care was wanting. 22 Am Jur (Fires) 78, p 644.

It is also essential to the application of the res ipsa loquitur doctrine that those seeking to obtain the benefit of its presumptive effect must show that in all probability the direct cause of the injury and so much of the surrounding circumstances 73 A.2d 183, 186-187.

                essential to its occurrence were in the exclusive control of the defendant, or his agents or servants.  Hamrah v. Clements, 3 N.J. 285, 69 A.2d 720 (1949);  Cf. Oelschlaeger v. Hahne & Co., 2 N.J. 490, 66 A.2d 861 (1949);  Woschenko v. C. Schmidt & Sons, 2 N.J. 269, 274, 66 A.2d 159 (1949);  Grugan v. Shore Hotels Finance, etc., Corp., 126 N.J.L. 257, 262, 18 A.2d 29;  38 Am.Jur.  (Negligence) Sec. 300, p. 996.  In case of fire the rule requires that the actual cause of it must have been under the exclusive control of the party charged with negligence.  Under the testimony before us the fire may have resulted from one or more of several causes, including the acts of third parties or strangers over whom defendant had no control.  Hamrah v. Clements, supra.   Mere possession of the premises and shed from which the fire spread is not a basis for the application of the res ipsa loquitur rule.  Additionally the instrumentality or thing causing the fire must be shown to warrant the application of the rule.  Hamrah v. Clements, supra;  cf. Oelschlaeger v. Hahne & Co., supra;  The President Wilson, 5 F.Supp. 684, 686 (Cal.Dist.Ct.1933);  Highland Golf Club of Iowa Falls, Iowa v. Sinclair Refining Co., supra
                

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