Yount v. Deibert
| Decision Date | 08 December 2006 |
| Docket Number | No. 93,726.,93,726. |
| Citation | 147 P.3d 1065 |
| Parties | Katherine YOUNT, Individually and as Natural Mother and Heir of Henry J. Yount, Jr., Deceased, and as Special Administratrix of the Estate of Henry J. Yount, Jr., Deceased, Appellant, v. Mike Scott DEIBERT, Tom Allen Probst, and James Levi Wisenhunt, Appellees. |
| Court | Kansas Supreme Court |
Patrick C. Smith, of Loy Law Firm, L.L.C., of Pittsburg, argued the cause and was on the brief for appellant.
David S. Brake, of Henshall, Pennington & Brake, of Chanute, argued the cause, and Bryan A. Ross, of the same firm, was with him on the brief for appellee Tom Allen Probst.
This tragic house-fire case involves a wrongful death action brought by Katherine Yount, individually and as the natural mother, heir, and special administratrix of the Estate of Henry J. Yount, Jr. This court granted Katherine Yount's petition for review in which she sought review of the Court of Appeals' 2 to 1 decision affirming the district court's grant of summary judgment to defendants Mike Scott Delbert, Tom Allen Probst, and James Levi Wisenhunt. Review of the decision requires consideration of whether Yount must be able to prove the cause of the fire rather than rely upon circumstantial evidence that the defendants negligently started the fire and whether Restatement (Second) of Torts § 876 (1977) regarding joint liability applies in a comparative negligence case.
Yount brought this suit after her house burned down on November 5, 2000. Yount, her son Henry, and one of Henry's friends were sleeping in the house at the time of the fire. Although injured, Yount was able to escape from the house; Henry and his friend were not so fortunate and both died as a result of the fire.
The defendants, friends of Henry, were at Yount's house earlier that night. Inside the house, the defendants and others engaged in various pyromaniacal activities. They lit numerous candles in the living room area, burned matches, burned small fires, and tried to light some alcohol or perfume near the coffee table. Outside the house, the defendants lit fireworks and burned lighter fluid, leaves, and part of a tree. They also experimented with pop bottle bombs. Later that night, the defendants left the house for the purpose of going out and stealing gasoline, ostensibly to enhance their fire-making activities. One of the boys, Probst, told investigators he thought there was one candle burning when they left, but they did not leave anything else burning. The other two defendants indicated the candles were extinguished.
David Yates, with the Kansas State Fire Marshall's office, conducted an investigation of the fire. In his report, Yates indicated that he could not determine the exact cause of the fire, but he ascertained the fire's point of origin was inside the house on the first floor in the living area. Nothing was found to support a conclusion that the fire was anything but accidental, and there was no indication of foul play associated with the fire or deaths. Further, Yates found nothing to indicate the utilities, the gas appliances, or the weather caused the fire. Yates was aware that there were boys at the house playing and experimenting with fire, but he found nothing to support a theory that they intentionally set the fire. He also noted that there had been an intentionally set fire at Yount's house in July 2000, but nothing linked the two fires.
Yount filed suit against the defendants on November 5, 2002, claiming they negligently and carelessly caused or allowed a fire to start at Yount's residence that consumed the house and caused the death of Yount's son Henry. Defendant Probst filed a motion for summary judgment; in his supporting memorandum, Probst argued there was no substantial competent evidence for a reasonable jury to conclude that he committed an affirmative negligent act that caused Yount's damages. The district court granted summary judgment based on the fact that — regardless of whether the defendants' actions on the night of the fire were negligent — Yount failed to prove the cause of the fire.
In a letter directing defendant Probst's counsel to prepare an order granting summary judgment, the district court stated it was unable to determine "how a jury could compare fault when no cause of the fire can be determined." The court also stated it was granting summary judgment in favor of the defendants "because the Court, under our present rules of comparative negligence cannot determine how a jury can compare fault in this case without guessing and speculating." The district court went on to explain that "a jury could well find that the group activities of the defendants were the likely cause of this fire" but that Yount could not show which particular activity caused the fire or which defendant engaged in that particular activity. Because the district court believed the rules of comparative negligence would not allow the jury to find all three defendants 100 percent at fault or to divide fault equally between them, the court found Yount's lawsuit could not proceed. In its subsequent journal entry of summary judgment, the district court stated:
"The only expert witnesses qualified to testify as to cause or origin of a fire could not conclude whether the fire was caused by a candle in a holder, much less whether or not the fire was caused as a result of negligence and, even more importantly, they cannot conclude who, if anyone, started the actual fire which consumed the Yount residence."
The court found the undisputed facts made it impossible to determine by a preponderance of the evidence which flame — open flame, flame from a candle, or flames from an unknown source — started the fatal fire.
Yount appealed, and a majority of the Court of Appeals affirmed the district court's decision. See Yount v. Deibert, No. 93,726, 126 P.3d 455, 2006 WL 163460, unpublished opinion filed January 20, 2006. The majority agreed with the district court's finding that Yount failed to provide evidence of the cause of the fire. The majority determined that, although there was circumstantial evidence of the defendants' playing with fire on the night in question, a jury would not be able to make an ultimate decision regarding causation absent "speculation or conjecture." Yount, slip op. at 6. The Court of Appeals further stated: "[I]t appears Yates would only have information on whether the boys intentionally set the fire and not whether the boys accidentally set the fire." Yount, slip op. at 7.
With regard to the previous fire (set intentionally) at Yount's house in July 2000, the Court of Appeals noted that nothing linked the present case to that incident. The majority observed that someone from Yount's town had threatened to kill one of Yount's sons because he blamed her for a fire that caused the death of his friend when Yount was a teenager. In addition, Fire Inspector Yates reported an interview with the mother of one of Henry's friends in which it was intimated that a person other than the defendants was involved in the current fire. Ultimately, the majority concluded that, because the cause of the current fire was undetermined, summary judgment was appropriate. Yount, slip op. at 7.
Judge Richard Greene dissented. In his opinion, negligent activity on the part of the defendants was clearly established and such negligence was circumstantial evidence of causation for the fatal fire. According to the dissent, evidence that the fire was not "intentionally set" did not preclude a finding that the fire was directly and proximately caused by negligence. Yount, slip op. D-1 (Greene, J., dissenting). Moreover, with regard to the potential inability to identify which of the defendant boys should be liable, Judge Greene would have applied the rule set out in the Restatement (Second) of Torts § 876 (1997), which states that an individual may be liable for the tortious conduct of another when the persons act in concert. Yount, slip op. at D-4-5 (Greene, J., dissenting).
This court granted Yount's petition for review. Yount argues the district court erred in granting summary judgment to the defendants. In raising this argument, Yount contends the district court erred in finding the plaintiff was incapable of proving the defendants caused the fire. She also asserts the court should have allowed the case to proceed under a theory of joint liability in that the defendants allegedly acted "in concert."
Yount argues that the district court erred in granting summary judgment to the defendants.
This court's standard of review of summary judgment rulings is well established, as set forth in Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002):
Summary judgment is proper in a negligence action if the only questions presented are questions of law. To recover for negligence, a plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal...
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