The opinion
CONOVER, Judge,
dissenting.
I respectfully dissent. The trial judge erred by removing the doctrine of res ipso loquitur from the case.
While the majority makes a distinction between fire cases and those involving other types of injury, I see no reason for such distinction. Further, if such distinction is proper, sufficient evidence under the Indiana rule was presented by Plaintiffs below to invoke the doctrine of res ipsa loquitur.
Initially, the trial judge concluded at the close of the Plaintiffs' case in chief res ipsa loquitur did not apply because "Arson has not been ruled out. I don't think it would be fair to charge someone with a duty to prevent arson." (R. 381) The only mention of arson came during the cross-examination of the local fire inspector, Jack Butterfield. He testified during cross-examination:
Q. With regard to other possible causes, have you ruled out arson[?]
A. I never rule out arson.
Q. Were there several fires with regard to businesses in a couple of year period [sic] in the mid-1980's.
A. We've had our share.
Q. In fact, did one person claim that he torched the Robertson Mill.
A. Yes, he did.
(R. 220) In Indiana, it is not necessary before the doctrine is invoked that the plaintiff exclude all other possible causes. Our supreme court clearly has said:
. It is appellant's position that since the evidence tended to establish that the accident could have resulted from more than one cause, ie., negligence of appellant and/or a defective tire manufactured and sold by Firestone, the doctrine of res ipsa loquitur does not apply.
With appellant's contention we cannot agree. To assert the doctrine of res ipso loquitur it is not necessary to prove that the only cause of the accident was defendant's negligence. To the contrary it is said:
'... the physical cause of the injury and the attendant circumstances indicate such an unusual occurrence that in the light of ordinary experience if would probably not have happened if those who had the management or control of the causative instrument had exercised proper care' [Supreme Court's emphasis] ...
21 LLE. Negligence, § 168, p. 401.
It is therefore not necessary for a plaintiff to exclude every other possibility other than the defendant's negligence as a cause. This principle has been recognized in Indiana.
'... A number of different causes or inferences may be thus left to the final determination of the triers of the facts'
Merriman v. Kraft (1969), 253 Ind. 58 , 249 N.E.2d 485, 487 .
*821 Plaintiffs below presented substantial evidence the fire could have been the result of Robertson's negligence. Fire inspector Butterfield testified Robertson's factory was an old, highly flammable wood building whose contents were volatile with dust present that could have been explosive. (R. 197) Further, there was some evidence from which the jury could have inferred the fire was the result of the bearings and motors situated in the basement of the mill becoming overheated because there was testimony the fire started in the basement.
Butterfield testified he inspected two motors in the basement but the motors were burned so severely it could not be determined whether the motors were the cause. He further testified motors could experience electrical problems if the bearings became overheated. From this evidence, the jury could reasonably infer Robertson's negligence proximately caused the resulting fire albeit there was some evidence a third person "torched" the building.
I believe it clear Plaintiffs below met the requirements listed in SCM Corp. v. Letterer (1983), Ind.App., 448 N.E.2d 686, 689 . Without question (1) the event was not of a kind which ordinarily does not occur in the absence of someone's negligence; (2) Robertson's building and premises were within its exelusive possession and control; and (8) the fire was not due to any voluntary action or contribution by the plaintiffs. That there was some evidence a third person "torched the premises" is merely conflicting evidence to be weighed along with res ipsa loquitur's presumption of negli-genee by the fact finder at the conclusion of the trial. Merriman, 249 N.E.2d at 487 .
For those reasons, I believe the trial court erred. I vote to reverse.