Tuesday, November 06, 2007, 9:15 PM

Divided COA Rejects Circumstancial Evidence Of Negligence As Too Speculative

In an interesting case today, the Court of Appeals (COA) affirmed summary judgment for the defendant in a negligence case. The case is Peerless Insurance Co. v. Genelect Serv., Inc.

The case arose from a fire at an Asheville home. The insurer (as subrogee) filed suit against defendant alleging that defendant's maintenance of a home generator caused the fire. The generator was serviced six weeks before the fire. In the six weeks between the service call and the fire, Asheville was hit by Hurricanes Frances and Ivan. Because of the hurricanes, the generator was operating during that entire period. The fire inspector found that the generator's extension/exhaust pipe was facing the ground about 2 inches into mulch. The plaintiff had an engineering company determine that heat from the exhaust could have started the fire by igniting the mulch.

The COA held that the plaintiff was alleging negligence with nothing more than mere speculation. "Once defendant produced evidence which showed that the last maintenance inspection was normal, the burden shifted to plaintiff to produce specific evidence, not speculation, that defendant's actions were responsible for the fire." The Court concluded that "the exhaust pipe being found post-fire pointed down and close to the mulch surrounding the generator is not circumstantial evidence of defendant's negligent maintenance." Why? "Between the time [defendant's] inspection was made and the time the fire investigator for Peerless investigated the fire scene, there had been two hurricanes, torrential rainfalls, fire hoses with high water pressure, firemen crawling through the window above the generator, and the fire itself. Thus, any observation that the muffler was pointed down at a 'slight angle' and covered with mulch is insufficient to submit the case to the jury. There are far too many other possible causes of the unsafe condition, and plaintiff gave no evidence to support the chosen theory that negligent maintenance occurred."

Judge Stroud dissented. She observed: "The exhaust pipe was not loose or easily moved from its position, either before or after the fire. In fact, the evidence is that the pipe was firmly secured in position by a clamp and a U- bolt. One of the inspectors after the fire had to remove the clamp and U-bolt as part of his inspection and noted that the clamp was 'secured right against the back cover of the generator.' This would indicate that the exhaust pipe had not been moved by rain, wind, fire hoses, or firemen. . . . [T]here is no evidence whatsoever that rain or wind could have changed or did change the position of the exhaust pipe, which was found firmly bolted into position. There was no evidence showing that torrential rain would result in any flow of water which might have moved the mulch around the generator."

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