Boudreaux v. American Insurance Company

TATE, Justice.

I respectfully dissent.

The plaintiffs’ case depends upon circumstantial proof that the defendant's insurer’s negligence was the cause of the fire in the insured’s premises. This fire caused the death of the plaintiffs’ decedent as he slept in his apartment in the adjacent premises.

The majority commits error of law in holding that such circumstantial proof and the res ipsa loquitur inference failed because it failed to exclude “every other reasonable hypothesis as to the cause of the fire.” 262 La. 743, 264 So.2d 628 . (Italics mine.) By so holding, the opinion of the court holds the plaintiff to the burden of proof in criminal cases, i. e., that of proving beyond a reasonable doubt the fact sought to be proved, 1 for it adopts the heavy burden of proof by circumstantial evidence required for conviction in criminal ca ses. 2

As the opinion of the court recognizes,, in civil cases, a party need only prove his. case by a preponderance of the evidence, not beyond a reasonable doubt. As the majority notes, we have recently summarized the several judicial formulations of this burden of proof in Jordan v. Travelers Insurance Co., 257 La. 995 , 245 So.2d 151, 155 (1971), as follows:

“In describing this burden of proof, the courts sometimes speak’ of proof to a ‘reasonable certainty’ or to a ‘legal certainty’;. or of proof by evidence which is of ‘greater weight’ or ‘more convincing’ than that offered to the contrary; or (in the case of circumstantial evidence) of proof which *749 excludes other reasonable hypotheses than the defendant’s tort with ‘a fair amount of certainty’. Whatever the descriptive term used, however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.”

Further, as we specifically held in Naquin v. Marquette Casualty Co., 244 La. 569 , 153 So.2d 395 (1963), by this burden of proof, the circumstantial evidence requisite in civil negligence cases need not negate all other possible causes of injury, as the present opinion of the court holds. It suffices if the circumstantial proof excludes other reasonable hypotheses only with a fair amount of certainty, so that it be more probable than not that the harm was caused by the tortious conduct of the defendant. 153 So.2d 396, 397 .

In this respect, the principle of “res ipsa loquitur” (the thing speaks for itself) sometimes comes into play, whereby negligence is inferred on the part of a defendant because the facts indicate this to be the more probable cause of injury in the absence of other explanation by witnesses found credible. Pilie v. National Food Stores of Louisiana, 245 La. 276 , 158 So.2d 162 (1963); Larkin v. State Farm Mutual Auto. Ins. Co., 233 La. 544 , 97 So.2d 389 (1957); Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.L.Rev. 70 (1941).

As we most recently stated in King v. King, 253 La. 270 , 217 So.2d 395, 397 (1968) : “Res ipsa loquitur is a rule of circumstantial evidence. Its applicability is determined at the conclusion of the trial. The rule applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the accident.” (Italics ours.)

By reverting to the present facts, I hope to show that the evidence as a whole proves that the negligence of the defendant is the most plausible explanation of the cause of the fire which killed Boudreaux, sleeping in his bed in his home in the adjacent premises.

Reverting to these facts, they show:

The decedent Boudreaux lived in an attic apartment in the premises next to Charlie’s Steak House. The defendant is the liability insurer of Petrossi, the owner and operator of this popular restaurant, which does a large business (four cooks, great stove, two broilers, deep fryer, etc.) in selling high quality steaks to numerous customers.

The nature of the cooking done involves a large and constant accumulation of grease in the filters and ductwork above the heavy cooking equipment. This requires frequent cleaning, in order to avoid the possibility of fire being ignited by sparks or ignited grease from the high temperature and constant cooking.

*751 On February 24, 1967, Charlie’s Steak House was destroyed by fire. The decedent in the adjacent premises, separat.ed only by a frame party wall, was suffocated by the heavy smoke.

On the night of the fire, the restaurant kitchen was closed at midnight. The restaurant itself was closed and locked at 1:00 a. m., with the last employee to leave checking the kitchen and observing no fire or smoke.

At 1:52 a. m., less than one hour later, a fire alarm was turned in. When David Fontaine, Jr., director of the fire prevention division of the New Orleans Fire Department, arrived at the scene five minutes later (at 1:57 a. m.), the fire was already of such intensity that it was already blazing through the restaurant’s second story roof and pouring smoke into the adjacent .premises in which Boudreaux lived. Since the restaurant had been completely locked up, Fontaine immediately secured the presence- of the owner (Petrossi) at the fire in order to gain entry if needed. Fontaine also called in a general alarm for this large fire, already out of control insofar as saving the half-destroyed restaurant premises.

Both’ Fontaine and Engolia (an inspector in Fontaine’s department who investigated the fire for Fontaine) agreed that the origin of the fire was in the kitchen. This iwas determined by the area of the heaviest damage, as well as by the location of the charring on the ductwork leading from the kitchen. Fontaine was of the further opinion that the origin and heaviest intensity of the fire was in such ductwork, in which grease accumulated above the stove. I do not read Engolia’s testimony as contradicting this opinion.

Neither of these experts was able to testify definitely as to the cause of the fire, although Fontaine was of the reasoned opinion, based upon his extensive experience of fire investigations, that it had originated in the ductwork where the grease had accumulated. (The owner, Petrossi, admitted in this testimony that such ductwork had not been cleaned since its installation 5-6 weeks before. He was looking for a man to clean it just before the fire.)

As Fontaine pointed out, if fire from a spark or from ignited grease had gotten into the accumulated grease in the duct-work behind the filter screen, the employees in the kitchen could not have observed the fire or felt the heat at the time the restaurant closed, since the fan in the ductwork vents would draw off any smoke or heat, at least in the early stages of the fire. See Fontaine deposition, tr. 39-40.

Fontaine was of the definite opinion that the fire extinguisher above the hood of the stove had not been triggered by heat until after the fire. He reached this conclusion because of personal observation of the location and intensity of the fire at the time *753 he arrived on the scene, the first fire department official to do so, and because of the nature and the amount of undischarged dry chemical found the day after the accident. 3 See Fontaine transcript 13-17, 23. Engolia felt that the residue of dry chemical indicated that the extinguisher had gone off, and he was unwilling to state that it had not gone off during the fire.

Fontaine also felt that an open stairwell from the first to the second floor of the steak house contributed to the rapid spread and intensity of this fire. The open stairwell permitted hot gasses to go up to the second story and to add to the intensity of the conflagration which went through the kitchen ceiling after its earlier ignition. Tr. 50. The open stairwell was in violation of New Orleans Building Code, 4 as well as of state law, La.R.S. 40:158, subd. B.

Under the facts outlined, I think the preponderance of the evidence shows the cause of the fire and its rapid spread was the negligence of the defendant. When the fire official arrived at the scene less than an hour after the restaurant was closed, the fire was already of such intensity as to have half-destroyed the building. The premises were locked and inaccessible to anyone but the owner or his employees, and they had been under his control and supervision right up until closing. I cannot readily think of any cause of the fire other than some negligence of the owner, such as permitting the grease in the kitchen ductwork to have become ignited.

Furthermore, the evidence strongly suggests that the owner’s negligence contributed to the start and the rapid spread of the fire in at least two admitted respects: his permitting the grease to accumulate in the ductwork without any cleaning of it whatsoever prior to the fire, and his failure to close the stairwell with a door, a routine fire-precaution. Additionally, the evidence strongly suggests that he either negligently *755 or intentionally permitted the fire extinguisher in the ductwork area to become nonoperative automatically (so as no longer to be triggered automatically by fire).

Should more be necessary for the plaintiff to sustain his burden of proof, I think he can invoke the inference of fault permitted by application of the res ipsa loquitur principle.

As the authorities previously cited note, where there is no direct evidence of the defendant’s negligence, then in satisfaction of the plaintiff’s burden to prove it by a preponderance of the evidence, he may be permitted by application of this principle to rely upon an inference of the defendant’s negligence which arises from proof of the accident and the surrounding circumstances.

In perhaps our most recent discussion of the issue, we suggested the real test of applying the principal to be as follows: “Do the facts of the controversy suggest negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident?” Pilie v. National Food Store, cited above at 245 La. 276 , 158 So.2d 165 . (Italics ours.) On the other hand, application of the principle is defeated if “an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence.” 245 La. 276 , 158 So.2d 165 . (Italics ours.)

When the cause of the fire may as plausibly be ascribed to cause other than the defendant’s negligence, then of course the-inference arising from the res ipsa loquitur principle is not available in aid of the plaintiff’s case. Brown & Blackwood v. Ricou-Brewster Corp., 229 La. 1037 , 121 So.2d 70 (1960).

In facts generically similar, where a fire-started at a filling station and the operator relied upon its cause as unexplained, we-stated in Jones v. Shell Corporation, 186 La. 1067 , 171 So. 447, 449 (1936):

“While negligence is never presumed as a matter of law from the happening of an accident, the happening of the accident with its attendant circumstances may justify the inference of negligence. Thus, when the thing which produced the injury is under the control of the defendant or his-servants and the injury would not have occurred unless negligence had been present in some form and the facts causing the injury are peculiarly within the knowledge of defendant and not equally accessible to plaintiff, the burden is on defendant to explain the cause of the accident, if he desires to escape from the inference of negligence.”

In holding the defendant liable for failure to absolve himself from negligence, we further stated, 171 So. 449 :

“Where the thing which caused the injury complained of is shown to be under the *757 management of defendant or his servants and the accident is such as in the ordinary-course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in absence of explanation by defendant, that the accident arose from want of care.”

Applying these long-settled principles of Louisiana law, the plaintiffs have met their burden of proving by a preponderance of the evidence that their decedent’s death was caused by the defendant’s insured’s fault.

This being so, I need not discuss the similar liability the defendant’s insured may be subject to as being at “fault” under Civil Code Article 2315 under the standard of conduct and activity expressed by Civil Code Articles 667 and 669, 5 nor that liability which might be imposed upon him under Civil Code Article 2317 as the owner of a thing (his cooking machinery from which the fire emanated) which causes damages to another 6 .

For the reasons stated above, I respectfully dissent.

. La.R.S. 15 :271 (19G6) regulating procedure in criminal cases, provides: “The pilea of not guilty throws upon the state the burden of proving, beyond a reasonable doubt, every fact and circumstance necessary to constitute defendant’s guilt.”

. See La.R.S. 15:43S: “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” (Italics mine.)

. lie was of tho opinion that, after the fire, tho extinguisher system had been manually triggered. 1-Iis testimony further points out that tho extinguisher device could bo set so that it would not go off even if tho heat over the stove wore intense, and that, without such tinkering to prevent triggering, all extinguisher heads in the kitchen system would go off all over the kitchen and over all tho cooking food, if any one of them wore subjected to too much heat. Fontaine, Tr. 21-22.

. Since the premises had been built before tho effective date of the New Orleans Building Code in 1956, the owner of the premises was not subject to misdemeanor prosecution for violation thereof, under tho Code’s grandfather clause. Nevertheless, tho prohibition of open stairwells was to protect tho public safety and health and to prevent fires, and its continued mainteance falls behind the standard of ordinary care owed by the owner of a building to its occupants and neighbors. I am aware of no authority that would exempt from tort liability an owner who maintains unsafe premises, even though the owner is not subject to criminal prosecution.

. This is tlic stricter liability of an occupier of premises towards those he injures on neighboring lands by activities on liis land or the diffusion of noxious substances from it. Langlois v. Allied Chemical Corp., 258 La. 1067 , 249 So.2d 133 (1971); Chaney v. Travelers Insurance Co., 259 La. 1 , 249 So.2d 181 (1971).

. See Crepeau, Liability for Damage Caused by Things — Prom the Civil Law Point of View, 40 Canadian Bar Journal 1222 (1962).