Victory Park Apartments, Inc. v. Axelson, 10731

Citation367 N.W.2d 155
Decision Date24 April 1985
Docket NumberNo. 10731,10731
PartiesVICTORY PARK APARTMENTS, INC., Plaintiff and Appellee, v. Doris AXELSON, Defendant and Appellant. Civ.
CourtUnited States State Supreme Court of North Dakota

Maureen Holman, of Tenneson, Serkland, Lundberg, Erickson & Marcil, Fargo, for plaintiff and appellee.

Jon R. Brakke, of Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendant and appellant.


Doris Axelson appeals from a district court judgment holding her liable to Victory Park Apartments, Inc. (Victory Park), for damages caused by a fire, and from an order denying her motion for judgment notwithstanding the verdict. We reverse and remand for a new trial.

On February 24, 1980, a fire occurred in an apartment building owned by Victory Park. The damage was confined primarily to the apartment rented to Doris Axelson. On the evening prior to the fire, Doris worked until 1 a.m. at the lounge which she owns in Valley City. She returned to her apartment with Melvin Thompson, an employee at the lounge. Melvin slept on the couch in the living room of the apartment and rose early the next morning, a Sunday, to clean the lounge. Sometime after Melvin left, Doris and her daughter, Debra Axelson, drank coffee and smoked cigarettes at the kitchen table in the apartment. Melvin testified that when he returned to the apartment later in the morning Doris was sitting on the couch, but she was not smoking. Doris, Debra, and Melvin then left the apartment and returned to the lounge to resume cleaning. Several hours later, at approximately 4 p.m., the fire was discovered in Doris's apartment.

Victory Park commenced this action against Doris for damages to its building. At trial, the Valley City fire chief, George Schlittenhardt, testified that in his opinion the fire started in the living room sofa and was caused by a cigarette. The trial court instructed the jury on negligence, res ipsa loquitur, and a tenant's standard of care for the conduct of others. The jury returned its verdict finding Doris negligent and awarding Victory Park $9,414 in damages. The court entered judgment on the verdict, and Doris moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion was denied. Doris now appeals to this court from the judgment and from the order denying her post-trial motion. 1

Doris raises numerous issues alleging error by the court in admission of evidence and in the instructions given to the jury. We conclude that the court committed reversible error when it instructed the jury on res ipsa loquitur under the facts of this case. Having determined that remand for a new trial is necessary, we will also consider additional issues which may arise again on retrial.


Negligence must be affirmatively proved, and will not be presumed merely from the occurrence of the accident or damages. Northwestern Equipment, Inc. v. Cudmore, 312 N.W.2d 347 (N.D.1981); W. Prosser & W. Keeton, Law of Torts 242 (5th ed. 1984). It is not necessary, however that there always be an eyewitness to the defendant's conduct. Negligence may be proved by circumstantial evidence. Foerster v. Fischbach-Moore, Inc., 178 N.W.2d 258 (N.D.1970). The res ipsa loquitur doctrine encompasses one form of circumstantial evidence. 2 Cyr v. Green Mountain Power Corp., Vt., 485 A.2d 1265 (1984); see W. Prosser & W. Keeton, Law of Torts, supra, at 243.

As applied in this State, res ipsa loquitur allows the fact-finder to draw an inference that the defendant's conduct was negligent if the following foundational facts are proved: (1) the accident was one which does not ordinarily occur in the absence of negligence; (2) the instrumentality which caused the plaintiff's injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff. 3 Foerster v. Fischbach-Moore, Inc., supra. In order to have the court instruct on res ipsa loquitur, the plaintiff must present probative evidence from which the jury could find each of the required foundational facts.

Doris asserts that res ipsa loquitur can never be applied in a case involving fire, because fires often occur without negligence. On at least three occasions, this court has addressed the application of res ipsa loquitur in fire cases. See Bismarck Baptist Church v. Wiedemann Industries, Inc., 201 N.W.2d 434 (N.D.1972); Foerster v. Fischbach-Moore, Inc., supra; Farmers Home Mutual Insurance Co. v. Grand Forks Implement Co., 79 N.D. 177, 55 N.W.2d 315 (1952). Although in each of those cases we rejected application of the doctrine, we did so on the particular facts presented, not on the basis that res ipsa loquitur is never applicable in a fire case. It is not the mere occurrence of a fire but the circumstances under which the fire originated and spread which may give rise to application of res ipsa loquitur. Foerster v. Fischbach-Moore, Inc., supra. If the circumstances of a particular case evidence the requisite foundational facts, res ipsa loquitur may apply.

Having concluded that res ipsa loquitur may be applied in a fire case under appropriate circumstances, we further conclude that this is not such a case. After a careful review of the record, we conclude that there was insufficient evidence presented from which the jury could find that Doris had "exclusive control" of the instrumentality which caused the injury in this case.

Victory Park asserts that the "instrumentality" which caused the injury in this case was either the couch or the apartment, which were in the exclusive control of Doris as the tenant of the apartment. We disagree. Victory Park relies on Olswanger v. Funk, 63 Tenn.App. 201, 470 S.W.2d 13 (1970), in which the Court of Appeals of Tennessee indicated that the defendant's exclusive control of the couch in which the fire started was sufficient to satisfy the "exclusive control" element of res ipsa loquitur. We question the logic of a rule which would permit an inference of negligence to arise merely from the defendant's control over the object in which the fire originated or the area where it originated. The far better rule, which we have already embraced in Foerster v. Fischbach-Moore, Inc., supra, 178 N.W.2d at 263, is that "the 'thing' or 'instrumentality' which caused the fire ... is required to be under the control of the defendant." [Emphasis added.]

Victory Park's theory of the fire is that a negligently smoked cigarette was dropped between the cushions of the couch, where it smoldered for a period of time and eventually ignited the couch. It is clear that the "thing" or "instrumentality" which caused the fire under those circumstances was the cigarette, not the couch or the apartment. See Smith v. Little, 626 S.W.2d 906 (Tex.Ct.App.1981) [flammable liquid which spilled on carpet, not carpet, was instrumentality that caused fire]; Oliver v. Hutson, 596 S.W.2d 628 (Tex.Civ.App.1980) [cigarette dropped into chair, not residence, was instrumentality which caused fire]. Thus, in order for the instruction on res ipsa loquitur to be given, it was incumbent upon Victory Park to present evidence from which the jury could determine that Doris had exclusive control over the cigarette which ignited the fire. At best, Victory Park's evidence created an inference that one of the three persons present in the apartment that morning had control over the offending cigarette; beyond that, the jury was left to speculate as to which of the three was the offending party.

Professor Prosser has succinctly stated the requirement that the evidence must link the defendant with the offending instrumentality:

"It is never enough for the plaintiff to prove merely that the plaintiff has been injured by the negligence of someone unidentified. Even though there is beyond all possible doubt negligence in the air, it is still necessary to bring it home to the defendant. 'The purpose of this requirement is to link the defendant with the probability, already established, that the accident was negligently caused.' On this too the plaintiff has the burden of proof by a preponderance of the evidence; and in any case where it is clear that it is at least equally probable that the negligence was that of another, the court must direct the jury that the plaintiff has not established a case." W. Prosser & W. Keeton, Law of Torts, supra, at 248. [Footnotes omitted.]

See also Marathon Oil Co. v. Sterner, 632 S.W.2d 571 (Tex.1982); Neis v. National Super Markets, Inc., 631 S.W.2d 690 (Mo.Ct.App.1982); Samson v. Riesing, 62 Wis.2d 698, 215 N.W.2d 662 (1974).

After reviewing the record in this case for the purpose of determining the correctness of the instruction on res ipsa loquitur, we are satisfied that it was equally as probable that Melvin or Debra, rather than Doris, was responsible for the negligently smoked cigarette. The record discloses that all three were smokers; that Doris and Debra each smoked a cigarette at the kitchen table that morning; that Melvin slept on the couch that night; and that, when Melvin returned from cleaning the lounge, Doris was on the couch but was not smoking. This is all of the evidence which was presented to establish that Doris negligently smoked a cigarette on the couch. The jury was left to speculate as to which of the three smoked the cigarette in question. Although, in Prosser's words, there is "negligence in the air," Victory Park has failed to bring the negligence "home" to Doris.

Other courts faced with similar fact situations have reached like conclusion. See Oliver v. Hutson, supra; Fireman's Fund American Insurance Companies v. Knobbe, 93 Nev. 201, 562 P.2d 825 (1977).

We hold that Victory Park failed to present probative evidence which would allow the jury to determine that Doris had exclusive control of the cigarette in question. The jury was left to speculate as to which of three persons had been in control of the offending...

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