Montuori v. Narragansett Elec. Co., 77-286-A

• Decision Date: 05 August 1980
• Docket Number: No. 77-286-A,77-286-A
• Citation: 418 A.2d 5
• Parties: Anthony MONTUORI d/b/a Montuori's Auto Service v. NARRAGANSETT ELECTRIC CO. ppeal.
• Court: Rhode Island Supreme Court

Page 5

418 A.2d 5

Anthony MONTUORI d/b/a Montuori's Auto Service v. NARRAGANSETT ELECTRIC CO.

No. 77-286-Appeal.

Supreme Court of Rhode Island.

Aug. 5, 1980.

Gerard McG. DeCelles, Thomas Carlisle Angell, Providence, for plaintiff.

Roberts, Carroll, Feldstein & Tucker, David W. Carroll, R. Kelly Sheridan, Providence, for defendant.

OPINION

BEVILACQUA, Chief Justice.

The plaintiff, Anthony Montuori, instituted this civil action to recover for property damage on his business premises. The damage resulted from a fire allegedly caused by the negligent maintenance of the electric power lines of the defendant, Narragansett Electric Company, a Rhode Island public utility corporation engaged in the distribution of electric power. The case was tried before a jury in the Superior Court. At the close of plaintiff's case, the defendant made a motion for a directed verdict, which the trial justice denied. At the close of its own case, the defendant renewed its motion for a directed verdict. The trial justice reserved decision on the motion and submitted the case to the jury. The jury returned a verdict in favor of the plaintiff in the amount of $10,580, after which the trial justice denied the defendant's motion for a directed verdict. The defendant now appeals from the judgment entered on the verdict.

On February 9, 1979, we heard oral arguments on the sole issue of whether the trial justice properly denied defendant's motion for a directed verdict. Believing, however, that the case raised other issues that were neither briefed nor argued, we did not issue a full opinion, rather, we directed the parties to brief and argue two additional issues: (1) whether the so-called "doctrine of exclusive control" has been or should be incorporated into the doctrine of res ipsa loquitur and (2) whether the plaintiff in this case could benefit from either theory. Montuori v. Narragansett Elec. Co., R.I., 402 A.2d 583, 585 (1979). The parties filed supplementary briefs, and we heard oral arguments on the issues on February 4, 1980. We now hold that the trial justice should have granted defendant's motion for a directed verdict. We also hold that the "doctrine of exclusive control" shall be incorporated into the doctrine of res ipsa loquitur, but that on this record, including the pleadings, plaintiff is not entitled to benefit from the latter doctrine.

I

In our earlier opinion, we stated that the questions presented by the trial court's denial of the motion for a directed verdict were: (1) what a plaintiff must establish to escape a directed verdict and (2) whether the expert testimony relied upon by plaintiff spoke in terms of "probability" rather than "possibility" and thus overcame the limitations imposed by Evans v. Liguori, 118 R.I. 389, 398, 374 A.2d 774, 778 (1977), and Sweet v. Hemingway Transport, Inc., 114 R.I. 348, 355, 333 A.2d 411, 415 (1975). Montuori v. Narragansett Elec. Co., R.I., 402 A.2d at 584.

The plaintiff, Anthony Montuori, testified that at about midnight on the evening of October 10, 1972, the Providence police department informed him by telephone of a fire at his garage on Detroit Avenue in Providence. He stated that he had left the garage at about 11 p. m.; presumably, therefore, when the fire started, the garage was unoccupied. Montuori also testified that because a smoldering fire had destroyed the interior of his garage in July 1972, he had hired an electrician to rewire the entire electrical system to give it the capacity to handle 100 amperes of current, rather than 60 amperes. The electrician had installed a new service panel inside the garage, a new meter and meter trough on the outside wall, and a new conduit and wiring that ran from a weatherhead on the roof of the garage down to the meter. Raymond Rosa, a city electrical inspector, testified that on August 17, 1972, he had inspected plaintiff's newly wired electrical system and had approved it as meeting the required standards. ¹

Colonel Walter A. McQueeney, who in 1972 was Chief of the Providence police department, testified that at about 11:45 p. m. on October 10, 1972, as he was cruising in the vicinity of plaintiff's garage, he observed a small flame on the service wire leading from one of defendant's service poles to what he surmised was plaintiff's garage. Colonel McQueeney testified that at that time he detected no evidence of a fire within the garage itself. He then reported the existence of the flame to headquarters and proceeded to a nearby restaurant. He testified that after having left the restaurant a short time later, he passed by plaintiff's garage, which he described as an "inferno." He also observed that the entire service wire was then afire.

The plaintiff's expert witness, John W. King, an electrical engineer, testified that he had gone to plaintiff's garage on the day after the fire and had made only a visual inspection of the interior equipment, the service panel, the outside meter, and the damaged, insulated conductors leading from defendant's service pole. He stated that as a result of his inspection he could find nothing directly wrong with the interior equipment. His opinion of the cause of the fire was "(t)hat the conductor out on the cross-arm, for some reason, I don't know why have never seen it before became (sic ) in proximity with each other, so they were able to come in physical contact, copper to copper." King theorized that the alleged contact had created a surge of electricity from the transformer and that although the pole serviced two other buildings, the overload went to ground through the garage wiring to plaintiff's service panel. An electrical surge seeks the easiest way to ground, and King surmised that because the new wiring and equipment in plaintiff's garage was "probably more healthy to serve as a ground than the next door neighbor's house," the surge had followed that path rather than any other.

On cross-examination, King admitted that he could not pinpoint the origin of the electrical fault with precision and that he had never before seen an instance in which two bare conductors in close proximity on a pole had caused a problem. He stated that he knew of instances in which a sudden voltage peak, such as lightning, had occasioned such a result and that a voltage peak might possibly have caused the electrical surge here. He also conceded on cross-examination that in November 1972, he had prepared a written report in which he postulated that a short circuit caused by contact between one live conductor and the neutral conductor "could occur within the service panel since all the conductors are in close proximity to each other."

On redirect examination, the plaintiff's attorney sought to have King restate his opinion of the fire's origin, despite the suggestion of alternative causes:

"Q And you are still saying it was outside the building the cause was outside the building?

"A It is more likely to have been caused on the outside of the building than on the inside."

The defendant's sole witness, Bertrand Choiniere, an employee of defendant, who had taken photographs at plaintiff's garage on the morning after the fire, offered no opinion of the cause of the fire ² but did attempt to explain the cause of the flame observed on the wire by Colonel McQueeney. Choiniere stated that defendant's service wires are of a gauge narrower than the gauge of the wires leading from the weatherhead to the service panel; therefore, after an electrical fault has occurred, whether negligently caused or not, the narrower wires heat up more rapidly as the power overload surges through from the transformer to ground.

In ruling on a motion for a directed verdict, a trial justice must view all of the evidence in the light most favorable to the nonmoving party and must give that party the benefit of all reasonable and legitimate inferences that may properly be drawn from the evidence, without weighing the evidence or exercising his independent judgment in regard to the credibility of the witnesses who have testified. Conlin v. Greyhound Lines, Inc., R.I., 384 A.2d 1057, 1061 (1978); Evans v. Liguori, 118 R.I. at 394, 374 A.2d at 776; Plouffe v. Goodyear Tire & Rubber Co., 118 R.I. 288, 294-95, 373 A.2d 492, 495-96 (1977); Hamrick v. Yellow Cab Company of Providence, 111 R.I. 515, 522, 304 A.2d 666, 671 (1973). In reviewing the decision of a trial justice on a motion for a directed verdict, this court is bound by the same standard. Scittarelli v. Providence Gas Co., 415 A.2d 1048 (R.I.1980); Plouffe v. Goodyear Tire & Rubber Co., 118 R.I. at 295, 373 A.2d at 496. If the trial justice finds that issues exist upon which reasonable men might draw conflicting conclusions, he shall deny the motion for a directed verdict and allow the jury to resolve controverted issues. Evans v. Liguori, 118 R.I. at 394, 374 A.2d at 776; Hamrick v. Yellow Cab Company of Providence, 111 R.I. at 522, 304 A.2d at 671.

We have often restated the proposition that a reasonable and legitimate inference that someone was negligent is not necessarily warranted by the mere happening of an accident. Salk v. Alpine Ski Shop, Inc., 115 R.I. 309, 312, 342 A.2d 622, 625 (1975); Goyette v. Sousa, 90 R.I. 8, 15-16, 153 A.2d 509, 513 (1959); Coia v. Eastern Concrete Products Co., 85 R.I. 128, 131-32, 127 A.2d 858, 860 (1956). Rather, to ensure that a trial justice or a jury will tend to draw only inferences that are reasonable and legitimate and will avoid conjecture, speculation, or surmise, a plaintiff must introduce a sufficiency of competent evidence to establish the essential elements of a prima facie case in negligence. See Salk v. Alpine Ski Shop, Inc., 115 R.I. at 312, 342 A.2d at 625. The evidence must establish that the defendant owed a duty of care to the plaintiff and that the defendant breached his duty. See Marshall v. Tomaselli, 118 R.I. 190, 196, 372 A.2d 1280, 1283 (1977), and that the defendant's negligence was the proximate cause of ...