St. Paul F. & M. Ins. Co. v. James G. Davis Const. Corp., 9031.

• Decision Date: 12 January 1976
• Docket Number: No. 9031.,9031.
• Citation: 350 A.2d 751
• Parties: PAUL FIRE AND MARINE INSURANCE CO. et al., Appellants, v. JAMES G. DAVIS CONSTRUCTION CORP. et al., Appellees.
• Court: D.C. Court of Appeals

Page 751

350 A.2d 751

PAUL FIRE AND MARINE INSURANCE CO. et al., Appellants, v. JAMES G. DAVIS CONSTRUCTION CORP. et al., Appellees.

No. 9031.

District of Columbia Court of Appeals.

Argued September. 16, 1975.

Decided January 12, 1976.

Joseph G. Hitselberger, Arlington, Va., for appellants.

John J. O'Neill, Jr., Washington, D. C., for appellee James G. Davis Const. Corp. Thomas H. McGrail, Washington, D. C., for appellee Brewood Printing Co.

Before REILLY, Chief Judge, and YEAGLEY and MACK, Associate Judges.

YEAGLEY, Associate Judge:

Appellants as the insurers-subrogees of S. Kriger, Inc., sued appellees Brewood Printing Company and James G. Davis Construction Corporation in negligence following a fire which damaged a building and merchandise owned by Kriger, an oriental art dealer. In this appeal we review a directed verdict entered for the appellees at the close of the appellants' evidence. Appellants contend (1) that they adduced sufficient evidence to withstand appellees' motion for a directed verdict and (2) that the trial court erred in refusing to admit in evidence certain sections of the local Police Regulations offered as proof of a statutory standard of care. We find no error and affirm the judgment.

Appellee Brewood is the owner of a building which abuts an alley shared with the Kriger store and a number of other businesses. At some time in 1969 Brewood contracted with Davis to remodel the third story of the Brewood its tile work on Brewood's building progressed, roofing paper, wood and other miscellaneous building materials were allowed to accumulate in the alley near the Kriger store. In the early morning hours of September 11, 1969, the debris caught fire causing damage of approximately $25,000 to the Kriger building and the merchandise within. Although there was testimony that the debris came from the construction site, the only evidence offered by the appellants concerning the immediate cause of the fire was the testimony of Thomas Cassidy, a municipal fire inspector, who described the fire as "incendiary", a term he defined as including the possibility that the fire had been started by the act of an arsonist. Cassidy testified that he had found no evidence to suggest that spontaneous combustion, lightning or electrical short circuit had been the source of the spark which ignited the debris. At the close of appellants' evidence, the court granted a directed verdict for the appellees.

The first issue before us is whether the trial court correctly ruled that the intervening mischief had severed, as a matter of law, the causal connection between the alleged negligence in allowing the debris to accumulate in the alley and the fire that caused the loss to the Kriger property.

In order to withstand a motion for directed verdict, a plaintiff suing in negligence must prove facts sufficient not only to warrant in inference of negligence but also to justify an inference that such negligence was the proximate cause of plaintiff's loss. Bowman v. Redding & Co., 145 U.S.App.D.C. 294, 298, 449 F.2d 956, 960 (1971). This court has defined proximate cause as "that cause which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred." Wagshal v. District of Columbia, D.C.App., 216 A. 2d 172, 175 (1966). If the danger of an intervening negligent or criminal act should have reasonably been anticipated and protected against, the defendant will be held responsible for the damages which result despite the entry of another act in the chain of causation. If, however, the intervening act can fairly be said to be that which could not have been reasonably anticipated, plaintiff may not look beyond the intervening act for his recovery. See, e. g., Graham v. Safeway Stores, Inc., D. C.App., 316 A.2d 852 (1974); Union Storage Co. v. McIntyre, D.C.App., 256 A.2d 787 (1969).

On review of a directed verdict, we review the evidence with all favorable inferences it allows the appellants, Gaither v. District of Columbia, D.C.App., 333 A. 2d 57, 59 (1975), but our inquiry is also disciplined by the consideration that where plaintiff's evidence invites the jury to speculate as to negligence or causation a directed verdict is properly granted. Pepsi-Cola Co. v. Waddell, D.C.App., 304 A.2d 630, 632 (1973).

The only evidence of the immediate cause of the fire was that it had been set either deliberately or negligently by some unknown third person. Spontaneous combustion was rejected as a source of the fire by appellants' own witness and there was no evidence that any part of the debris was highly incendiary. Neither was any evidence offered to suggest that something other than arson ignited the debris that caused the instant fire.

This court has held, in considering the liability of a warehouseman for failure to repair a warehouse door, that arson was not a foreseeable result of that negligence. Union Storage Co. v. McIntyre, supra. Here we do not know what the intervening act was as appellant has failed to supply it. If, however, as the evidence indicates, it was the act of arson, we hold that it was an act that was not reasonably foreseeable.

While there have been decisions in this jurisdiction permitting recovery in negligence actions despite evidence showing the immediate cause of the injury was due to an intervening criminal act,¹ such cases are clearly distinguishable on the facts since they provide a reasonable degree of foreseeability not present here. There was no evidence to suggest that arson might reasonably have been expected to follow and the only negligence asserted related to the accumulation of trash not shown to be of a highly incendiary nature. Accordingly we conclude that the directed verdict was properly entered.

Appellants' second argument concerning the admissibility of the Police Regulations loses its thrust given our decision on the primary issue of this appeal.

Appellants attempted to establish a...