Empire State Bldg. Co. v. Bryde

• Decision Date: 09 April 1982
• Docket Number: No. 43951,43951
• Citation: 211 Neb. 184,318 N.W.2d 65
• Parties: EMPIRE STATE BUILDING COMPANY, Appellant, v. Joseph C. BRYDE, Appellee.
• Court: Nebraska Supreme Court

Page 65

318 N.W.2d 65

211 Neb. 184

EMPIRE STATE BUILDING COMPANY, Appellant, v. Joseph C. BRYDE, Appellee.

No. 43951.

Supreme Court of Nebraska.

April 9, 1982.

Syllabus by the Court

1. Trial: Proof. It is elemental law that the burden of proof is upon the plaintiff to prove those things which constitute the necessary elements of his cause of action, and the defendant bears the burden of proving those things which constitute affirmative defenses.

2. Trial: Proof. The burden of proof means the duty resting on one party or the other to establish by a preponderance of the evidence an issue essential to recovery.

3. Trial: Jury Instructions. A trial court should eliminate immaterial and superfluous matters and submit to the jury by instructions only matters properly to be decided by it in arriving at its verdict.

Walsh, Walentine, Miles, Fullenkamp & O'Toole, Omaha, for appellant.

Michael A. Fortune and James B. Cavanagh of Erickson, Sederstrom, Leigh, Eisenstatt, Johnson, Kinnamon, Koukol & Fortune, P. C., Omaha, for appellee.

Heard before KRIVOSHA, C. J., HASTINGS, J., COADY and FAHRNBRUCH, District Judges, and RONIN, District Judge, Retired.

KRIVOSHA, Chief Justice.

The appellant, Empire State Building Company (Empire), appeals from a jury verdict rendered in the District Court for Douglas County, Nebraska. The jury found for the appellee, Joseph C. Bryde (Bryde), and against Empire on Empire's claim for damages caused by the alleged negligence of Bryde. For reasons more fully set out hereafter, we reverse and remand for new trial.

Empire is the owner of a commercial building in downtown Omaha, Nebraska. Bryde, one of Empire's tenants, operated a Quik Print shop in space located on the street level of Empire's building. In addition to occupying the street-level storeroom Bryde also leased and used the basement located directly below the street-level storeroom. On December 25, 1976, at approximately 11:30 p. m., a fire was discovered in the basement area leased by Bryde which resulted in damage to the entire Empire building. Empire then sued Bryde, maintaining that Bryde had negligently stored plastic trash bags containing paper and other debris, as well as flammable fluids, in the basement of the building and that the negligent storing of these plastic bags was the proximate cause of the fire which damaged Empire's building.

It is undisputed that it was Bryde's practice to take the trash accumulated from the daily operation of his business and place it in plastic garbage bags which were then clipped shut and piled in the basement area. The contents of the plastic bags consisted of shredded paper, plates used in the cameras, blotter stock paper used to clean the presses, smoking material, cotton swabs, and generally the trash from a normal business day.

Bryde stored the plastic bags in the basement until he felt there was a sufficient number to justify having them hauled away. At the time of the fire, there were at least 30 of such bags stacked in the basement of the Quik Print shop.

Vernon Trapp, chief of the arson bureau of the Omaha Fire Division, testified that the cause of the fire was the accumulation of trash in the basement of the Quik Print shop. A second witness for Empire supported this view. Both witnesses testified that "but for" the storing of the trash, the fire would not have occurred.

The first assignment of error we consider, and the one material to our decision herein, concerns the instruction given by the trial court to the jury over the objection of Empire. The trial court first instructed the jury regarding the pleadings filed by Empire. In its instruction, the trial court advised the jury: "The plaintiff alleges in its Second Amended Petition that the defendant was negligent in the following respects:

"1. In stacking discarded trash in plastic bags containing paper and other debris and leaving same in the premises occupied by the defendant;

"2. In permitting flammable fluids to be discarded in plastic bags with paper therein and leaving same in the premises occupied by defendant;

"3. In permitting plastic bags containing discarded cigarettes and other refuse to be stacked in the basement of the premises occupied by the defendant along with paper and other refuse."

The trial court then instructed the jury: "Plaintiff further alleges that the aforementioned negligence of the defendant was the sole and proximate cause of the fire, doing damage to the building of the plaintiff ...." The trial court then properly instructed the jury that plaintiff further alleged "said fire ... started in the discarded trash by reason of the ignition of the fluids and paper contained in the plastic bags referred to in the foregoing specifications of negligence, either by ignition caused by a cigarette or by spontaneous combustion of the papers and fluid contained in said plastic bags." Indeed, there was no error in this portion of the instruction, for the court properly advised the jury what it was that the plaintiff had alleged.

However, in a subsequent instruction, the trial court instructed the jury as follows: "Before the plaintiff can recover, the burden is upon the plaintiff to prove, by a preponderance of the evidence, each and all of the following elements or propositions:

"1. That the defendant was negligent in one or more of the elements or particulars numbered and stated in Instruction No. 2.

"2. That said negligence, if any, of the defendant was the proximate cause, or a proximately contributing cause, of the fire.

"3. That as the direct and proximate result of said negligence of the defendant and resultant occurrence the plaintiff sustained damages.

"4. The amount in money of the damages thus sustained."

That portion of the instruction was indeed correct and properly instructed the jury as to the burden assumed by Empire in order for it to recover from Bryde. The trial court, however, further instructed the jury, over objection of Empire, as follows: "If the plaintiff has established, by a preponderance of the evidence, all of the above-numbered propositions and that the ignition source of the fire was either a cigarette butt which was placed in the trash in plastic bags through the negligence of the defendant, Joseph Bryde, or his employees, or by spontaneous combustion within the trash in the plastic bags, then your verdict will be for the plaintiff and against the defendant in the amount of such damages. If the plaintiff has failed to establish any one or more of the foregoing above numbered propositions and the ignition source of the fire, by a preponderance of the evidence, your verdict will be for the defendant." (Emphasis supplied.)

It is in this regard we believe that the trial court was in error. The authorities have made it clear that there really are several different and distinct causes of action relating to fires. One, of course, is the negligent setting of a fire. Another, however, is the negligent storing of combustible material without regard to how the fire started. In 35 Am.Jur.2d Fires § 27 at 607 (1967), the author notes: "Liability for damage caused by the spread of fire from defendant's premises may be predicated on his negligence in keeping his premises in such a condition that such a result was likely. So, where one negligently stores combustible material on his property in such a way that it is reasonably foreseeable that fires will start thereon and spread to the property of another, he may be held liable for damage caused when this occurs, although the fire starts accidentally...."

Two decisions, among many, supporting this view are Quaker Oats Co. v. Grice, 195 F. 441 (2d Cir. 1912), and T. & N. O. R. R. Co. v. Bellar, 51 Tex.Civ.App. 154, 112 S.W. 323 (1908). In Quaker Oats Co., supra at 444, the court noted: "If premises are allowed to become unsafe because they are filled with dust which would explode on the application of spark or flame, and the exercise of reasonable care would have prevented the premises from becoming thus...