No Proof of Causation where Cause of Fire Not Identified

The Tennessee Supreme Court recently held that a contractor and subcontractor were not liable in a case where a partially constructed home burned, but the cause of the fire could not be pinpointed.

In Jenkins v. Big City Remodeling, No. E2014-01612-SC-R11-CV (Tenn. April 5, 2017), plaintiffs brought a negligence action against both the general contractor and flooring subcontractors who were building plaintiffs’ new home after the home was destroyed in a fire. Expert testimony established that the fire started on the back deck of the home, yet the specific cause could not be identified—“possible causes of the fire were arson, improperly discarded cigarettes, electrical issues, and spontaneous combustion of rags.” The deposition testimony in this case showed that the property was not fenced; that the back deck could have been accessed by any member of the public; that plaintiffs had had several construction workers on the property; and that the fire happened on Halloween, a time when “a lot of fires occur, including fires that are intentionally set.” Plaintiffs asserted that the subcontractors’ negligence caused the fire, as they had been seen smoking on the back deck before and they had been using rags to apply flammable flooring materials on the day of the fire, which could have caused the fire if disposed of in an improper manner. To prove the claim against the general contractor, plaintiffs planned to rely on the doctrine of res ipsa loquitur to infer negligence.

Defendants moved for summary judgment, which the trial court granted. In a divided opinion, however, the Court of Appeals reversed summary judgment as to the subcontractors, finding that there were disputed issues of material fact as to causation. In a unanimous opinion, the Supreme Court affirmed the trial court’s ruling and reinstated summary judgment as to all claims.

Looking first at the claim against the general contractor, the Supreme Court pointed out that res ipsa loquitur allows a “fact finder to infer negligence from the circumstances of the injury.” (internal citation omitted). To utilize this doctrine, “a plaintiff must show that (a) the event that caused the injury is of a kind that ordinarily does not occur in the absence of negligence, (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence, and (c) the negligence is within the scope of the defendant’s duty to the plaintiff.” (internal citation omitted). The second prong of this required showing may be met by “showing that the specific cause for the event was under the defendant’s control or that the defendant was responsible for all reasonably probable causes to which the event can be attributed.” (internal citation omitted).

In Tennessee, “Courts have held that res ipsa loquitur is not applicable in fire loss cases where defendant is not shown to have exclusive control of the cause of the fire.” (internal citation omitted). Here, the deck where the fire started was accessible to the public, the cause of the fire was never determined, and various other construction workers had accessed the house. The Court held that it could not “infer that the general contractor was negligent because a fire of unknown origin started on the exterior of a house that was accessible to the public,” and that the plaintiff “failed to prove that the general contractor was in exclusive control of the cause of the fire or all reasonably probable causes of the fire.” Accordingly, summary judgment as to the general contractor was affirmed.

Regarding the claim against the subcontractors, the Court pointed out that a negligence claim requires a showing of both proximate cause and cause in fact, stating that “the primary issue [was] whether the plaintiffs offered sufficient evidence that the subcontractors’ negligence was the cause in fact of the fire.” In light of the evidence in this case, the Court reasoned:

It is not enough for a plaintiff to show that a defendant’s conduct was a possible cause of the injury; the defendant’s conduct must be shown to be the probable cause. … A plaintiff must prove that the negligence of the defendant more likely than not caused the injury. … [W]e conclude that the plaintiffs did not produce sufficient evidence to establish that any negligence of the subcontractors was the cause in fact of the fire, an essential element of the plaintiffs’ cause of action. The fire started on Halloween night outside the house on a back deck that was accessible to the public. No one was at the house when the fire started. The plaintiffs’ expert witnesses could not rule out arson as a cause of the fire and were not able to identify a possible cause for the fire that was more likely than any other cause. The flooring subcontractors may have been negligent by improperly discarding cigarettes or by disposing of rags in the garbage area, but the plaintiffs were not able to link these alleged acts to the fire that started on the back deck. Proof of negligence is not a substitute for evidence of causation. … The Court of Appeals correctly concluded that evidence of the subcontractors’ negligence in improperly discarding flammable rags and cigarettes created a disputed issue of material fact as to negligence. However, the Court of Appeals erred by concluding that these disputed facts indicating negligence sufficed to establish disputed questions of fact as to causation.

(internal citations omitted). Based on this analysis, the Supreme Court affirmed the trial court’s grant of summary judgment to the subcontractors.

In closing this opinion, Justice Lee wrote:

The fatal flaw of the plaintiffs’ case against the general contractor and the subcontractors was the plaintiffs’ inability to submit sufficient evidence of the cause in fact of the fire. Despite plaintiffs’ best efforts, this required element of proof eluded them. Expert testimony established many possible causes of the fire, but did not establish that any negligence of the general contractor or the subcontractors was the probable cause in fact of the fire.

If the plaintiffs’ had been able to offer competent expert testimony that the most likely cause of the fire was the negligence of one or both of the contractors the case would be permitted to proceed to trial even in the presence of expert testimony to the contrary, even if plaintiffs’ expert conceded that it was possible for there to have been an alternative cause.