Umpqua Aquaculture, Inc. v. Ron's Welding and Fabricators, Inc.

• Decision Date: 12 February 1992
• Citation: 111 Or.App. 220,826 P.2d 31
• Parties: UMPQUA AQUACULTURE, INC., Rogelio Sardina, Cynthia Sardina and Patrick Terry Flury, Appellants, v. RON'S WELDING AND FABRICATORS, INC., Ronnell Coats and Robert L. Hall, Respondents. CV 89 0660; CA A66942.
• Court: Oregon Court of Appeals

Page 31

826 P.2d 31

111 Or.App. 220

UMPQUA AQUACULTURE, INC., Rogelio Sardina, Cynthia Sardina and Patrick Terry Flury, Appellants, v. RON'S WELDING AND FABRICATORS, INC., Ronnell Coats and Robert L. Hall, Respondents.

CV 89 0660; CA A66942.

Court of Appeals of Oregon.

Argued and Submitted Dec. 9, 1991.

Decided Feb. 12, 1992.

Bryan P. Murphy, Portland, argued the cause for appellants. With him on the briefs were Michael J. Gentry, Montgomery W. Cobb and Tooze Shenker Holloway & Duden, Portland.

William F. Gary, Eugene, argued the cause for respondents Ron's Welding and Fabricators, Inc., and Ronnell Coats. On the brief were B. Kevin Burgess, Dennis W. Percell and Harrang, Long, Watkinson, Arnold & Laird, P.C., Eugene.

Garrison F. Turner, Ashland, argued the cause for respondent Robert L. Hall. With him on the brief was Frohnmayer, Deatherage, Pratt, Jamieson & Turner, P.C., Ashland.

Before RICHARDSON, P.J., and DEITS and DURHAM, JJ. RICHARDSON, Presiding Judge.

Plaintiffs appeal from a summary judgment for defendants in this action to recover for fire damage to plaintiffs' property. We reverse.

Plaintiffs were tenants of part of a building owned by defendant Ron's Welding and Fabricating, Inc. (Ron's). Defendant Coats is a shareholder of Ron's and performed various services relating to the building on Ron's behalf. Defendant Hall is the contract purchaser of part of the building and, around the time of the fire, was in the process of performing renovations on the premises. The fire began in a room adjacent to the area leased by plaintiffs. The precise way that the fire started is not known. Plaintiffs' principal theory of liability against each defendant is that his or its negligence and causal involvement may be inferred ¹ under the doctrine of res ipsa loquitur. Defendants moved for summary judgment and, relying on Barrett v. Emanuel Hospital, 64 Or.App. 635, 669 P.2d 835, rev. den. 296 Or. 237, 675 P.2d 491 (1983), the trial court granted the motions.

Plaintiffs argue that the trial court erred in allowing summary judgment. They contend that there was direct evidence from which, independently of res ipsa loquitur, negligence and causation could be inferred against Hall and Coats and, vicariously, against Ron's. ² We agree that the evidence raises an issue of fact regarding negligence and causation. Defendants argue, however, that plaintiffs may not rely on that evidence, because they pleaded only res ipsa loquitur as the basis of liability and alleged no specific acts of negligence of the kind shown by the evidence in the summary judgment proceeding. Plaintiffs respond that defendants did not move against the complaint for failure to state a claim or to make it more definite and certain and that any defect in the complaint could not serve as the basis for allowing summary judgment in the face of their direct evidence of defendants' negligence.

Plaintiffs' operative allegation of negligence is that the "fire is the kind of event which would not have occurred in the absence of negligence on the part of defendants." Res ipsa loquitur is a rule of evidence, from which negligence may be inferred. It need not be pleaded. See McKee Electric Co. v. Carson Oil Co., 301 Or. 339, 348-49, 723 P.2d 288 (1986). It is true that plaintiffs' allegation is cast in res ipsa loquitur terminology. However, it is also true that, leaving aside the evidentiary matter, the ultimate fact that plaintiffs allege is negligence. The pleading was possibly assailable for lack of specificity. However, not having moved against it, defendants may not rely on its deficiencies to sustain the summary judgment on appeal. See Hendgen v. Forest Grove Community Hospital, 98 Or.App. 675, 780 P.2d 779 (1989). Plaintiffs' direct evidence of negligence and of a causal relationship to the fire of each of the defendants was sufficient to overcome the motions, and the court erred by granting them. ³

Because plaintiffs' res ipsa loquitur theory, as distinct from their direct proof, is very likely to arise on remand, we will address it. We note at the outset that our discussion is necessarily limited to the facts in the record as it now stands, and our conclusions may not remain applicable if more evidence is developed.

We explained in Barrett v. Emanuel Hospital, supra:

"Under its traditional formulation, res ipsa loquitur permits negligence to be inferred against a defendant if the injury (1) is of a kind which ordinarily does not occur in the absence of someone's negligence; (2) is caused by an agency or instrumentality within the defendant's exclusive control; and (3) is not attributable to voluntary action or contribution by the plaintiff." 64 Or.App. at 638-39, 669 P.2d 835. ⁴

We also noted that, under the second element, the inquiry is more about the defendant's conduct than about his control of the instrumentality and that the overriding test is whether the " 'negligence of which the thing speaks is probably that of defendant and not of another.' " 64 Or.App. at 639, 669 P.2d 835 (quoting Pattle v. Wildish Construction Co., 270 Or. 792, 797, 529 P.2d 924 (1974)).

In Barrett, a patient was injured during a surgical procedure under circumstances where the cause was unknown and could not be traced to any of the several participants in the procedure. We rejected the plaintiffs' argument that, because direct proof of negligence was impossible, the res ipsa loquitur inference should arise against all of the participants:

"[T]he rule plaintiffs urge us to adopt is simply that anything a plaintiff cannot prove about a defendant's conduct in an operating room should be inferable. In our view, that rule is contrary to what the Oregon cases have consistently and correctly stressed: the only inference res ipsa loquitur permits is the ultimate fact of negligence, and that inference is permitted only when the plaintiff is able to establish by proof, inter alia, the probability that a particular defendant's conduct was the cause of the plaintiff's harm." 64 Or.App. at 642, 669 P.2d 835. (Emphasis in original.)

We also noted, however, that, if the underlying evidence supported it, the inference could attach to more than one defendant in connection with the same injurious act or acts. 64 Or.App. at 641, 669 P.2d 835.

Defendants contend that Barrett controls this...