# Boudreaux v. American Insurance Company

> Supreme Court of Louisiana · June 29, 1972 · 262 La. 721

URL: https://www.frixlaw.com/law-library/cases/9673600

## Case

- **Full name:** Robert BOUDREAUX Et Al. v. the AMERICAN INSURANCE COMPANY
- **Court:** Supreme Court of Louisiana
- **Decided:** June 29, 1972
- **Citations:** 262 La. 721; 264 So. 2d 621; 1972 La. LEXIS 5001
- **Precedential status:** Published
- **Opinion:** On rehearing by Tate
- **Judges:** Tate, Sanders, Barham, Summers, Dixon, Hamlin
- **Cited by:** 201 later opinions in the Frix Law Library

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## Opinion text

ON REHEARING
TATE, Justice.
The plaintiffs are the children of Edward Boudreaux. They sue the liability insurer of Charles Petrossi, d/b/a Charlie’s Steak House, for'the wrongful death of their father.
The decedent Boudreaux was suffocated in the early hours as he lay asleep in his attic apartment in premises adjacent to the steak house. His suffocation was the result of a major fire which originated in the kitchen of the restaurant shortly after it had closed.
In our original opinion, we affirmed the judgment of the previous courts. They had dismissed the suit because they found insufficient proof that the fire resulted from the negligence of the insured Petrossi. 245 So.2d 794 (La.App. 4th Cir. 1971), certiorari granted 258 La. 759 , 247 So.2d 861 (1971). On rehearing, we conclude that the trial and intermediate court decisions erroneously exacted of the plaintiffs a heavier burden of proof than is required by law.
*759 The uncontradicted facts show the following :
The decedent Boudreaux was killed as a result of the fire originating in the restaurant premises next door. The restaurant had been closed by an employee and locked up between 12:45 and 1:00 a. m. The restaurant fire was reported at 1:52, and by 1:57 (when the first fire inspector arrived at the scene) the fire was of such intensity that it was through the roof of this two-story building. 1 The building was at that time fifty percent involved by the fire.
Based upon the most intense charring, as well as observations during the fire, the fire inspectors determined that the fire had originated in the kitchen, more specifically in the ductwork 2 above the broilers, stoves, fryers, and other heavy kitchen, equipment. Although filters (cleaned once weekly) trapped most of the grease, nevertheless some must filter through and accumulate in the ductwork. The ductwork as well as the filters should also be cleaned regularly, how often depending on the volume of cooking. The ductwork had never been cleaned since installed some five to six weeks before the fire, although the filters had been cleaned weekly. 3
Since occasionally bits of ignited grease could slip through the filter into the duct-work, the fire extinguishing system was designed to be triggered to extinguish fires within the ductwork. One of the fire inspectors was certain that this fire-extinguishing system had not worked during the fire and had been triggered only after *761 the fire; his opinion was based not only upon the height and intensity of the flames observed during the fire but also upon the dryness of the chemical found when the premises were inspected after the fire. 4 The other fire inspector, based on the fuse links he inspected, believed that the extinguisher heads he had inspected had functioned. 5
When the kitchen closed at midnight, the kitchen personnel cleaned all grease from the stoves, broilers, and fryers. They extinguished all flame, blowing out the pilot lights on the stove (although this, of course, permitted small amounts of gas to continue escaping through the night). The bartender waiter also checked the kitchen for fire, when he closed and locked the premises at 1:00 a. m. If, however, ignited grease had lodged in the grease of the ductwork, this inspection could not have discovered it.
Because of the lack of proof as to what had caused the fire, both the trial and the intermediate court held that the plaintiffs had not proved by a preponderance of the evidence that the insured’s negligence was the cause of their decedent’s wrongful death. We granted certiorari because of our doubt that these courts had correctly applied this burden of proof required in civil cases.
Recently, in Jordan v. Travelers Insurance Co., 257 La. 995 , 245 So.2d 151, 155 (1971), we summarized the several judicial formulations of this burden of proof in civil cases and concluded:
“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 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 *763 other possible causes of injury, as the opinions of the previous courts seemed to hold. 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 as a rule of circumstantial evidence, 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 as-plausible explanation by witnesses found credible. 6 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); Comment, 25 La.L.Rev. 748 (1965). Thus, by this principle where properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury.
We noted in Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544 , 97 So.2d 389, 391 (1957): “ * * * the maxim [res ipsa loquitur] means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference. . . The application of the rule does not, therefore, dispense with the necessity that the plaintiff prove negligence, but is simply a step in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence. . When all the evidence is in, the question is still whether the preponderance is with the plaintiff.”
Nevertheless, when all the evidence is in and the question is whether, by reason of the res ipsa loquitur rule, the *765 plaintiff has preponderantly proved that the defendant is responsible in tort for his injury, we have in our most recent decision on the issue noted that the real test of applying res ipsa loquitur 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, 245 La. 276 , 158 So.2d 162, 165 (1963). (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.” 158 So.2d 165 (Italics ours.) See also Comment, 25 La.L.Rev. 748, 764 (1965). This is simply another formulation of the burden of a plaintiff in a tort action to prove that, more probably than not, his injury was caused by the negligence of the defendant.
Applying these principles to the present controversy, the evidence as a whole shows that the defendant’s insured’s negligence was the most plausible or likely cause of the fire which caused the decedent’s death. 7 We cannot as reasonably ascribe any other cause. In reaching this conclusion, we rely upon the following, among other, facts:
The fire was spread through half the building in a little more or less than an hour after the restaurant was closed tight for the night. (This indicated it must have burned for some time before it had flared to this extent.) No one other than the insured’s employees is shown to have had access to these premises subsequent to the time the restaurant was closed. Prior to then, the insured’s employees had exclusive control of the kitchen premises in which the fire originated. The kitchen was a large scale commercial enterprise, likely to accumulate hazardous quantities of grease and other highly combustible substances.
If all fire had been extinguished in the kitchen premises when the employees left, the evidence indicates no other cause for the fire’s start: i. e., the conflagration was most reasonably caused by some fire (smouldering grease, or spark, or unextinguished flame fed by gas from the pilots) left alive in the premises when the employees locked up, for no other cause is even suggested by the evidence. Further, the evidence indicates that, if the extinguishing equipment worked as it should have, the fire could not have started or have spread so rapidly.
We thus conclude that the evidence as a whole proves the most reasonable cause of *767 the fire to have been the defendant’s insured’s negligence in leaving fire alive on his premises, which contained inflammable substances. Having so concluded, we find it unnecessary to discuss other specific aspects of negligence indicated by the evidence : the inadequacy of the extinguishing equipment, the letting gas escape from the pilots during the night, the failure to have secured Fire Department approval for installation of the ductwork and extinguisher system, and the fire hazard of maintaining an open stairwell (which, though protected by a grandfather’s clause from criminal prosecution as a violation of the municipal building code, may nevertheless have constituted an unreasonable hazard to the neighboring premises).
For this reason also, we find it unnecessary to discuss any possible liability of the insured by reason of the stricter duty owed by an occupier of premises to those on neighboring premises injured because of activities (the large-scale commercial kitchen and attendant risks) conducted by him on his land or because of the diffusion of noxious substances (smoke) from it. Civil Code Articles 667, 669, 2315; 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).
Therefore, we find that the plaintiffs are entitled to recover for the death of their father, which under the evidence was caused by the defendant’s insured’s negligence. However, as a matter of present preferable policy, we usually do not fix quantum where neither the trial nor the intermediate court has passed upon this question. See, e. g. Nelson v. Zurich Insurance Co., 247 La. 438 , 172 So.2d 70 (1965). See also: Smith v. Hartford Accident and Indemnity Co., 254 La. 341 , 223 So.2d 826 (1969). Instead, we remand the proceedings for such purpose.
Decree
For the reasons assigned, the judgments of the district court and of the Court of Appeal, Fourth Circuit, are reversed insofar as they dismiss the demand of the plaintiffs. The case is remanded to the Court of Appeal, Fourth Circuit, in order that it may fix the damages to which the said plaintiffs are entitled for the wrongful death of this decedent; and for such court to render judgment for their sum against the defendant, The American Insurance Company. All costs are to be borne by this defendant.
Reversed and remanded.
HAMLIN, J, dissents, adhering to the views expressed with original opinion.
. Because of its intensity, the fire inspector then struck a general alarm bringing more units and pumpers to the scene, for he believed the four companies and one hook and ladder of the district could not contain it by themselves.
. Fontaine, Director of Fire Prevention, testified to this effect, Tr. 18, Tr. 26 (identifying P-13 as the picture of the charred ductwork coming through second floor rear of kitchen), Tr. 39, Tr. 50-51, Tr. 52-53 (identifying with red circles probable progress of fire in ductwork shown as photograph P-13). Engolia, fire inspector, testified it originated in the kitchen; in so doing, he also pointed out the ductwork damage shown in P-13. Tr. 11-12. His reluctance in specifically saying that the kitchen fire specifically originated in the ductwork may have been due to his belief of the degree of certainty required: Q. “Could you answer the question?” BY THE WITNESS : “That question, to be one hundred per cent, no. Not to actually say beyond a reasonable doubt that this, you know, happened. I couldn’t say.” Tr. 11.
. The insured Petrossi admitted he had been looking for someone to clean the ductwork at the time the fire occurred. The date of installation of the ductwork is uncertain, since based only on invoices delivered after the fire. Fontaine noted that no advance approval had been obtained from the Fire Department, as required, before installation of the new ductwork, Tr. 42, 54, so that the fire department could never be able to determine whether the plans for the filter and ductwork system had been adequate. Tr. 43. The porter who removed the filters for cleaning weekly was not produced as a witness.
. See testimony of Fontaine, Tr. 12-23, Tr. 47-48.
. See testimony of Engolia, Tr. 17: “The damage was very very great. That’s why I couldn’t come up with an exact cause, you know, to determine, because we had to walk over, we removed a lot of debris, hut there was no — in my mind, there was no doubt that these things did function. "Whether they all did, I couldn’t truthfully say. The ones I checked did function.”
. King v. King, 253 La. 270 , 217 So.2d 395, 397 (19CS) : “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.)
In addition to describing this principle of circumstantial evidence, the term “res ipsa loquitur” is also sometimes used to describe the burden to prove themselves not negligent required of those using dangerous substances or engaging in dangerous activities which injure others or of those under some special relationship of care to others injured through their activity. In this type of situation, the effect of the doctrine is not only to supply an element of proof but also to shift the burden onto such type of defendant to explain or pay. Malone, Res Ipsa Loquitur, 4 La.L.Rev. 70, 95-99, 103 (1941) ; Prosser on Torts, pp. 213, 223, 22S-30 (4th ed. 1971).
. Res ipsa loquitur has not infrequently been applied in Louisiana in cases of fire originating on the defendant’s premises or in equipment installed by or under the control of the defendant. See Comment, 25 La.L.Rev. 748, 758 (footnote 57), listing eleven such decisions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673600. Public record. Not legal advice.