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EXECUTIVE SUMMARY: This
weekly newsletter covers:
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Sixth Circuit Allows Claim For Failure to Advise Fire Was Arson
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New York Court Permits Negligence Action To Proceed For Water Heater Fire
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Ohio Court Upholds Arson Finding of Juvenile
(1)
SIXTH CIRCUIT ALLOWS CLAIM FOR FAILURE TO ADVISE FIRE WAS ARSON
In Gail Minger v. Joseph Green, No. 99-6373, the Sixth Circuit Court of Appeals reviewed dismissal of a plaintiff's wrongful death case arising out of a fire. The decedent student was forced by University regulations to live in a dorm. He suffered from ADD, dyslexia and perception/spatial disorientation. His request for an exemption from living in the dorm was denied. On September 13, 1998, a fire started on his floor. It was suspected to be arson. His mother called the housing office the next day inquiring about the fire. She was not told the fire was suspected of being arson. She was told that the fire was minor, everyone was safe and not to call the fire department. Five days later a second fire happened while her son was sleeping. He died from smoke inhalation. All other residents escaped. His mother in her own right and as his representative brought suit against the housing officer she spoke to and others. The District Court dismissed the entire action finding discretionary immunity applied to the negligence claims. The Appellate Court disagreed as to the housing officer finding a valid claim existed for knowingly committing a wrongful act by intentionally misrepresenting the cause of the earlier fire. Hence, that cause of action was reversed and the matter permitted to proceed.
(2)
NEW YORK COURT PERMITS NEGLIGENCE ACTION TO PROCEED FOR WATER HEATER FIRE
In Patrick Nichols v. Agway, Inc., CA 00-01239, the Supreme Court of New York, Appellate Division, Fourth Department permitted a negligence action for a water heater failure to proceed. The plaintiff had sued the manufacturer, distributor, and installer for negligence, strict product liability and breach of warranty for a gas-fired hot water heater fire. The defendants moved for summary judgment which the trial court granted. The Appellate Division reversed as to the negligence cause of action against the installer. The court noted the plaintiff's experts contented a gas leak in the pilot light caused the fire. The defendant installer submitted evidence which suggested the installation was in compliance with the manufacturer's instructions and performed leak tests. The Appellate Division noted that dispute provided a disputed issue of fact for the jury to decide. The manufacturer and distributor were dismissed because the heater when it left their possession was not defective.
(3)
OHIO COURT UPHOLDS ARSON FINDING OF JUVENILE
In, In Re: Tammy Swader, the Twelfth Appellate District, Warren County, Justice Powell, reviewed a Juvenile Division finding she committed acts constituting the crime of aggravated arson. She worked at a restaurant. She arrived at work at 4:00 p.m., smoke was observed from the ceiling at 11:30. Matches and napkins were found in a back room. Opening an overhead ceiling tile, the smell of burning became stronger. A nearby chair had a foot print on it as did a computer desk. At her proceeding, a detective offered testimony that the shoe print matched the defendant. This ruling was challenged on appeal. The court found the testimony proper as an opinion of a lay witness. The print pattern was sufficiently large and distinct so that no detailed measurements, subtle analysis or scientific determination was needed. Further objections to the chain of custody of the overhead panel were rejected because the state established the custody from its collection to admission into evidence at the trial. The judgment was affirmed.
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,
emergency loss assistance - pager (619) 333-2713.
Please direct comments, suggestions, stories, and other items to the author by
e-mail at palynch@cozen.com
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