Nguyen v. Uniflex Corp.

• Decision Date: 05 October 1993
• Docket Number: No. 2128,2128
• Citation: 440 S.E.2d 887,312 S.C. 417
• Court: South Carolina Court of Appeals
• Parties: Shawn Ray NGUYEN, Respondent, v. UNIFLEX CORPORATION and Fred Sawyer, Appellants. . Heard

Page 887

440 S.E.2d 887

312 S.C. 417

Shawn Ray NGUYEN, Respondent, v. UNIFLEX CORPORATION and Fred Sawyer, Appellants.

No. 2128.

Court of Appeals of South Carolina.

Heard Oct. 5, 1993.

Decided Jan. 24, 1994.

Rehearing Denied March 17, 1994.

John L. Creson, Augusta, GA, for appellant.

Thomas E. Huff, North Augusta, GA, for respondent.

CURETON, Judge:

Nguyen brought this action against his landlord, Uniflex Corporation, and the complex manager, Fred Sawyer (appellants), to recover for property damage to Nguyen's store from a fire allegedly caused by the appellants' negligence in improperly storing combustible materials in the complex. The jury found for Nguyen and awarded $48,250 in damages. The appellants appeal the sufficiency of the evidence to support the jury's verdict. We affirm.

The facts in this case are largely undisputed. The parties disagree on the conclusions to be drawn from the facts. Nguyen operated a convenience store in the Georgetown Villa Apartments complex in North Augusta, South Carolina. The store was located in a common building with the complex's laundromat and a storage area. This common building was destroyed by fire on June 22, 1990. There was no evidence of arson.

The fire started in the northeast corner of the storage area, near where a number of chemicals had apparently been stored. There was evidence that both solvents and chlorine were stored in the area, within 18-20 inches of each other. The chlorine had been in solid or tablet form, and stored in five gallon plastic containers.

Nguyen sought to prove the chemicals were the source of the fire primarily through his expert, a chemist, who testified a reaction between chlorine and solvents would "liberate a considerable quantity of heat" which could cause a fire. She elaborated that solid chlorine would not have to come into direct contact with solvents or other contaminant materials to cause a reaction, but that chlorine vapors coming into contact with certain contaminants could cause a chemical reaction. She also testified that solid chlorine exposed to humid conditions would produce chlorine vapors. She further testified that she had not investigated the cause of the fire in this case, and admitted that she was testifying "in theory as to possibilities not probabilities."

On the other hand, the appellants presented the testimony of an expert who had investigated over one thousand fires. This witness testified that it was his opinion, based upon his investigation, training, and experience, that the chemicals stored in the storage area were most probably not involved in causing the fire, although they may have contributed to the fuel load after the fire began.

To recover on his claim that the appellants negligently stored chemicals, resulting in a fire that consumed the building, Nguyen had to establish: (1) a duty of care owed to him by the appellants; (2) a breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty. Ravan v. Greenville County, --- S.C. ----, 434 S.E.2d 296 (Ct.App.1993).

Appellants do not argue they owed Nguyen no duty of care. They do argue that their practice of storing chemicals in the storage area was not a negligent act and that such acts, even if negligent, were not the proximate cause of Nguyen's damages. Without deciding whether there was sufficient evidence of negligence surrounding the appellants' practice of storing chemicals in the storage area, we hold the record is insufficient to establish the fire was caused by a chemical reaction of the subject chemicals. Although causation may be established by circumstantial evidence, Seaside Resorts, Inc. v. Club Car, Inc., 308 S.C. 47, 416 S.E.2d 655 (Ct.App.1992), and is usually a question for the jury, Mims v. Florence County Ambulance Service Commission, 296 S.C. 4, 370 S.E.2d 96 (Ct.App.1988), it nonetheless must be based on probabilities not mere possibilities. Harris v. Rose's Stores, Inc., --- S.C. ----, 433 S.E.2d 905 (Ct.App.1993); Ravan, --- S.C. ----, 434 S.E.2d 296 (Ct.App.1993).

Here, Nguyen sought to establish the chemicals as the source of the fire based on the proximity of the fire to the location of the chemicals, the lack of evidence of arson, and expert testimony that under certain conditions a fire is "possible" when chlorine and solvents are stored in close proximity to each other. Nguyen presented no evidence that there was in fact a reaction caused by the manner in which the chemicals were stored and that such a reaction most probably caused the fire. Because the evidence was insufficient to establish the chemicals as the probable source of the fire,...