Ryan v. Beisner

• Decision Date: 14 December 1992
• Docket Number: No. 19125,19125
• Court: Idaho Court of Appeals
• Parties: Edward G. RYAN, O.D., Plaintiff-Appellant, v. Karl BEISNER, Defendant-Respondent. STATE FARM FIRE & CASUALTY COMPANY, Plaintiff-Appellant, v. Karl BEISNER, Defendant-Appellant.

Page 24

844 P.2d 24

123 Idaho 42

Edward G. RYAN, O.D., Plaintiff-Appellant, v. Karl BEISNER, Defendant-Respondent.

STATE FARM FIRE & CASUALTY COMPANY, Plaintiff-Appellant, v. Karl BEISNER, Defendant-Appellant.

No. 19125.

Court of Appeals of Idaho.

Dec. 14, 1992.

Quane, Smith, Howard & Hull, Boise, for appellant. John P. Howard, argued.

Thomasen & Stephens, Idaho Falls, for respondent. Alan C. Stephens, argued.

SILAK, Judge.

On the night of October 7, 1988, the office building of Dr. Edward G. Ryan, an optometrist, caught fire and was destroyed. Ryan and his insurer, State Farm Fire & Casualty Company, ¹ sued Karl Beisner, an electrician, claiming that the fire started as a result of Beisner's negligence as he installed "trac" lighting in the building earlier that day. Beisner moved for summary judgment, asserting that there was no competent evidence to show that the fire was caused by any negligent act on his part. The district court granted Beisner's motion for summary judgment, and Ryan appeals. Based on the facts and reasoning set forth below, we vacate the judgment and remand this case to the district court for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

In 1988 Ryan owned a single-story office building where he practiced optometry. Ryan's building was two rooms wide and six rooms deep, with a hallway down the middle. On October 7, 1988, Beisner installed a series of trac lights in the ceiling of Ryan's frame room, ² which was located at the front of the building. Beisner connected the trac lights to an existing electrical circuit to which the room's former light fixture had been connected. After Beisner installed the trac lights, Jan Chapman, one of Ryan's employees, went into the frame room to see how the new lights worked, and saw that they were working fine. Chapman, the only employee in the building during the afternoon, closed the office at 5 p.m. Sometime shortly thereafter, Mary Cenarrusa, another of Ryan's employees, arrived and spent approximately an hour cleaning the offices. All the lights and appliances in the building were turned off by Ryan's employees before closing the office for the weekend. Neither Beisner, Chapman, nor Cenarrusa noticed any problem with the new lighting; they smelled no smoke, the lights did not flicker, dim, or go out, and the circuit breakers did not trip.

Shortly before midnight on that same day, a fire broke out in Ryan's building, destroying the building. The fire scene was subsequently investigated by the state fire inspector's office, city fire officials, and Charles Dodson, the fire investigator hired by State Farm. Sometime later, Ryan and State Farm commenced this action against Beisner, alleging that the fire was caused by Beisner's negligence.

After the complaint was filed, the parties deposed a number of lay and expert witnesses. Beisner then moved for summary judgment, asserting that Ryan's allegation that he caused the fire was factually unsupported and speculative, and therefore incompetent to create a genuine issue of causation. To make a prima facie showing of causation in opposition to Beisner's motion, Ryan presented the expert opinion testimony of Dodson. Dodson testified at his deposition that he was able to identify an area in the ceiling of the lab room, two rooms (about thirty-five feet) away from where Beisner had worked in the frame room, as the area where the fire originated. Because the fire appeared to have ignited in an area of the ceiling where numerous wires had crossed, and because he could find no other explanation, Dodson concluded that the fire was of electrical origin. Dodson also concluded that because the circuit which Beisner had worked on in the frame room appeared to have run through the area where the fire started, Beisner must have done something while he worked on that circuit earlier in the day to cause the fire to ignite later that evening.

Dodson was unable to say specifically what it was that Beisner did to cause the fire, but he proffered two possibilities of how Beisner, who finished working on the circuit in the frame room at about 4 p.m In support of his motion for summary judgment, Beisner pointed to Dodson's deposition testimony to show that Dodson had been unable to find any evidence that the fire actually started because Ryan damaged or overloaded the wires of the circuit he had worked on; indeed, that Dodson could not even find any evidence that the wires had been damaged. Beisner also pointed to a portion of Dodson's deposition where Dodson testified that during his investigation he found a shorted wire in the area of origin which he believed was causally related to the fire. Dodson, however, was unable to show that this wire, which--unlike the wires Beisner had worked on--was installed in conduit, had any relation to the circuit which Beisner had worked on. With respect to his theory that Beisner might have caused the fire by overloading the circuit, Beisner presented portions of Dodson's deposition in which Dodson admitted that he did not know how much load Beisner had put on the circuit, and in which he stated, "I have no evidence that that (circuit overload) is exactly the cause, but it's certainly one of the things that can be considered." Beisner asserted that because there was no evidence, either circumstantial or direct, that Beisner damaged the wires which he worked on, or that those wires caused the fire to start, Dodson could only speculate that the fire's ignition source was wiring damaged by Beisner. Beisner argued that at the least, in light of the uncontradicted testimony of other experts, Dodson's theories of causation were factually impossible, and at the most they were merely remote possibilities unsupported by fact. Finally, Beisner argued to the trial court that under I.R.C.P. 56(e) affidavits and depositions submitted in support of or opposition to a motion for summary judgment must set forth such facts as would be admissible in evidence, and based on the excerpts of Dodson's own deposition, his conclusion that Beisner caused the fire was speculative and inadmissible, and therefore incompetent to create a genuine issue of material fact.

[123 Idaho 44] could have caused the fire to ignite in the ceiling of the lab room about thirty-five feet away and seven and one-half hours later. Dodson first theorized that Beisner could have caused the fire by pulling on the wires in the frame room, which might have damaged or stretched those wires at a point above the lab room, causing heat to build up and ignite the surrounding wood or insulation. Dodson's other theory was that Beisner could have started the fire by overloading the circuit, which overload might have caused heat to build up and ignite the fire at a point in the ceiling over the lab room.

After receiving and considering the briefs, affidavits, depositions, and oral argument submitted by the parties, the district court granted Beisner's motion, stating that "there's no way that the plaintiff in this case can show causation, whatever theory we're talking about, by a preponderance of the evidence to entitle it, as a matter of law, to go to the jury." Ryan has appealed from the summary judgment granted to Beisner. Based on the following analysis, we vacate and remand.

II. ANALYSIS

On appeal from an order granting summary judgment, this Court's standard of review is the same as the standard used by trial courts in ruling on motions for summary judgment. Summary judgment is appropriate "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c); Bonz v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876, 878 (1991). In ruling upon a motion for summary judgment, all disputed facts are to be construed liberally in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the nonmoving party. Bonz, 119 Idaho at 541, 808 P.2d at 878. The burden of proving the absence of material facts is upon the moving party. Petricevich v. Salmon River Canal Co., 92 Idaho 865, 868, 452 P.2d 362, 365 (1969). Once the moving party has properly supported the motion for summary judgment with affidavits, admissions or depositions In considering the evidence presented in support of or opposition to a motion for summary judgment "a court will consider only that material contained in affidavits or depositions which is based upon personal knowledge and which would be admissible at trial." Petricevich, 92 Idaho at 869, 452 P.2d at 366; I.R.C.P. 56(e). In Hecla Mining Co. v. Star-Morning Mining Co., 122 Idaho 778, 839 P.2d 1192 (1992), our Supreme Court stated that in ruling upon a motion for summary judgment the admissibility of the evidence contained in affidavits and depositions in support of or in opposition to the motion is a threshold question to be answered before applying the liberal construction and reasonable inferences rule to determine whether the evidence is sufficient to create a genuine issue for trial. Hecla, 122 Idaho at 778, 839 P.2d at 1198. A district court may exclude or not consider evidence offered by a party on its own motion, Hecla, 122 Idaho at 778, 839 P.2d at 1196-97, or pursuant to an objection by one of the parties. However, "some form of objection in the trial court is necessary to preserve the right to challenge on appeal the admission or consideration of evidence, unless the error is plain or fundamental." Hecla, 122 Idaho at 778, 839 P.2d at 1199. Thus, if the admissibility of evidence presented in support of or in opposition to a motion for summary judgment is raised by the court on its own motion or on objection by one of the parties, the court must first make a threshold determination as to the admissibility of the evidence before proceeding to the...