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Breaking Legal Developments

07-05-2004

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Michigan Court Upholds Fire Spread Case Against Cleaners Of Exhaust System


(1) MICHIGAN COURT UPHOLDS FIRE SPREAD CASE AGAINST CLEANERS OF EXHAUST SYSTEM

In Travelers Property Casualty, et al v. Sani Vac Service, Inc., et al, (June 24, 2004) Case Nos. 242966, No. 243860, available through Lexis at 2004 Mich. App. LEXIS 1734, the Michigan Court of Appeals in an unpublished opinion , upheld a jury finding of negligence for careless cleaning of a commercial kitchen exhaust system spreading a fire.

Defendant Sani Vac Service, Inc, appealed the judgment for plaintiff after a jury found defendant eighty-five percent responsible for a fire that damaged plaintiff's insured restaurant, Sinbad's. Plaintiff contended defendant's careless cleaning of the kitchen's exhaust system permitted the fire to spread and cause the loss.

Defendant argued that the jury verdict was against the great weight of the evidence. The court disagreed.

The trial court denied defendant's motion for JNOV or new trial, reasoning, in part, as follows:. . . The case notwithstanding the aggressiveness of counsel and all the various issues that were raised with or without merit, to me nevertheless does not obscure the fact that the case is relatively simple. What was the cause or causes of this fire loss? And is there competent, reliable, credible evidence to support the jury's finding as to cause.

At the time of the fire as well as shortly prior thereto the customers for all practical purposes had left and there was simply one or two of the owners on the premises and some cleaning people. Carol Love had the responsibility or at least she was performing the act of cleaning areas of the kitchen. One of the areas was the broiler. I think the testimony indicates that that's where the fire started, at the broiler. Carol Love was engaged in some other cleaning activity apparently at the onset of the fire. And there was an interval between when the fire actually started and when it was observed by her.

But the critical factor is this from my observation, and I think fairly supported by the evidence, that Sani Vac, the day before the fire, was called upon to clean the hood and the venting or exhaust system for this particular grill where the fire was transferred to. The fire which caused without question the substantial damage originated in the hood and then went on through the exhaust system and conduits. That fire could only have been fueled by combustible materials. If they were there, and they shouldn't have been there if Sani Vac had done its job and used reasonable care to clean the system. I think there is abundance [sic] evidence from the testimony pretty much independent of expert testimony that it was the presence of the grease or combustible substances in the hood and in the venting or exhaust system that caused the fire to spread and caused the damage. The negligence of Sani Vac is determined, as I recall, eighty[-]five percent, was simply the failure to exercise due care or reasonable care in cleaning the hood and the exhaust system. But for their failure, I think it's speculative or problematic as to whether or not it could have been contained with far less damage. But the jury found otherwise. I think that's a substantial issue of fact that the jury resolved in favor of plaintiff.

A new trial may be granted on some or all of the issues if a verdict is against the great weight of the evidence. MCR 2.611(A)(1)(e]. The jury's verdict should not be set aside if competent evidence supports it. Thus, to set aside a jury verdict the evidence must be manifestly against the clear weight of the evidence. Neither the trial court nor the Court of Appeals may substitute its judgment for that of the jury unless the record reveals that the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.

When reviewing the trial court's decision on a motion for JNOV, the Court of Appeals must view the evidence and all legitimate inferences from the evidence in the light most favorable to the nonmoving party. A jury verdict cannot be set aside where "reasonable jurors honestly could have reached different conclusions." This conclusion flows from the premise that the credibility of witnesses and the weight to be accorded evidence is for the jury to determine.

Applying these standards to the case at bar, the Court of Appeals was in accord with the trial court that abundant evidence supported the jury's verdict. Thus, the trial court did not abuse its discretion denying defendant's motion for new trial. Defendant's motion for JNOV was properly denied because the evidence when viewed in the light most favorable to plaintiff did not fail to establish plaintiff's claim as a matter of law. The evidence did not preponderate so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.

As discussed already, it was undisputed at trial that the fire started in a broiler Love was preparing to clean. Plaintiff asserted no claim that defendant's negligence started the fire, only that its careless cleaning less than 24 hours before the fire permitted it to spread throughout the hood and ductwork of the kitchen exhaust system. In addition to Love's testimony already noted, she testified that she never saw defendant's cleaning crew scrape grease out of the exhaust system until after the fire. Plaintiff's experts, Fatchett and Moore, testified they observed accumulated grease in the hood and ductwork after the fire and opined that this was reason for the fire spreading from the broiler. Photographs and physical evidence supported both Plaintiff's expert's testimony and Love's testimony. Further, Samples, defendant's production manager in charge of ensuring defendant's cleaning work was done properly, left Sinbad's on January 1, 1997, three or four hours before the job was completed. Samples also acknowledged that hardened grease could look like the sample plaintiff's experts produced. And, although defendant presented testimony that it had properly cleaned the grease out of Sinbad's exhaust system, the evidence was such that "reasonable jurors honestly could have reached different conclusions." It was for the jury to resolve the credibility of witnesses and determine what weight to give the evidence.

Contrary to defendant's argument, plaintiff presented testimony to counter defendant's theories. Plaintiff presented testimony from Seth Doyle, General Manager for the Detroit Fire Department, that Sinbad's fire extinguishers and automatic fire suppression (Ansul) system were compliant with the Fire Safety Code. Further, plaintiff presented the testimony of Donald John Hoffman, a safety engineer with a Ph.D. in chemical engineering. Dr. Hoffman also opined that grease in Sinbad's exhaust system permitted the fire, which otherwise would have been contained in the broiler, to spread. Hoffman further testified that Sinbad's fire extinguishers were approved for use in restaurants, the Ansul system installed at Sinbad's was the standard at the time of the fire, and that Love acted properly by attempting to extinguish the fire before calling the fire department. In that regard, defendant repeatedly asserts that Love waited twenty minutes to call 911 based on an admission in one of plaintiff's pleadings that the fire occurred at approximately 2:30 a.m. and the fire department logged the "alarm time" at "0250." Yet, Love testified at trial that she called 911 "maybe two minutes" after noticing the fire, and that when she spoke to the emergency dispatcher, she was informed that the fire department had already been notified. Defendant also presented evidence that any grease in Sinbad's exhaust system was the result of cooking on New Year's Eve on a broiler with the hood missing filters. But Love testified the hood was not missing any filters, and her testimony was supported by John Fleming and Dr. Hoffman who found no evidence that filters were missing. In sum, the evidence presented questions of credibility and weight for the jury to resolve, which it did in plaintiff's favor. The jury's verdict was not against the great weight of the evidence. The judgment was affirmed by the Court of Appeals.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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