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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Florida Court Reinstates Arson Charge
  2. Fourth Circuit Vacates Summary Judgment for Negligence for Leaving Door Open Contributing to Fire
  3. Alabama Supreme Court Finds Cause of Fire is a Jury Question


In State v. Harrington, No. 2D00-2763 (Mar. 30, 2001), the Second District Court of Appeals reviewed a trial court's dismissal of an arson charge. An argument developed between Ms. Bell and Harrington, apparently over the use of crack cocaine. It is alleged that Harrington forced Ms. Bell to smoke crack cocaine by holding a knife to her throat. As the argument increased, Harrington poured lamp oil over Ms. Bell and her clothing, struck a match, and set Ms. Bell and her clothing on fire. Ms. Bell subsequently died from her burn injuries. The only damage from the fire to Harrington's apartment was soot damage to the ceiling that would require repainting to correct.

A person is guilty of arson as defined in section 806.01, Florida Statutes (1999), when they willfully and unlawfully, by fire, damage or cause to be damaged any dwelling or its contents. The trial judge dismissed the arson count against Harrington finding that the soot damage to the ceiling of Harrington's apartment was insufficient to establish the charge of arson, and that the burning of the clothing Ms. Bell was wearing could not be considered "contents" of the apartment for purposes of the arson charge. The Appellate Court disagreed with the trial judge on both issues. The arson statute requires that a dwelling or its contents be damaged as a result of an intentional and unlawful fire. The extent of the damage is not made an element of the arson charge. Whether there is damage that is the result of a fire so as to come within the prohibitions of the arson statute is a question for the trier of fact. Harrington conceded that as a result of the fire, there was soot damage to the ceiling of the apartment that would require repainting. Therefore, the question of whether arson was committed by a willful and unlawful fire that caused such damage should have been left for the jury.

Ms. Bell's clothing qualified as "contents" of the dwelling. Clearly, if Harrington had gone to a closet and set fire to any of Ms. Bell's clothing hanging in the closet, we would not be faced with this issue. Merely because Ms. Bell was wearing the clothing at the time Harrington set the clothing on fire does not make them any less "contents" of the dwelling.


In Credit General Insurance Company v. Abateco Services, Inc., No. 00-01305 (Mar. 28, 2001), the Fourth Circuit Court of Appeals reviewed summary judgment for an insured finding coverage under his liability policy. Abateco was a contractor working on renovating military housing. After Abateco employees left for the day, a fire broke out damaging two houses.

When originally questioned employees of Abateco denied leaving the houses unlocked. That testimony later changed to indicate not all locks were checked. When its insurer refused to pay for the claims against it, Abateco brought suit after resolving the claim. The trial court found there was coverage under the policy for the negligence in failing to lock the doors.

The Court of Appeals found summary judgment should not have been granted for Abateco. The court noted complete summary judgment was not appropriate. The inconsistent statements about if the doors were locked and the fire subsequently occurred precluded summary judgment. Those inconsistencies needed to be evaluated by the trier of fact at a trial. The issue to be tried, is whether Abateco was negligent in failing to secure the doors to the housing units relative to the subsequent fire.


In McGinnis v. Jim Walter Homes, No. 1000209 (Mar. 23, 2001), the Alabama Supreme Court reviewed summary judgment entered for a variety of defendants. In 1990 the McGinnises entered into a contract with Jim Walter for Jim Walter to construct a substantially complete residence for them in or near Harpersville. Jim Walter contracted with Holsombeck for Holsombeck to install the electrical system in the McGinnis home. Jim Walter released the substantially completed residence to the McGinnises before July 18, 1991; that was the approximate date on which Alabama Power began supplying electricity to the McGinnis home.

Shortly after the McGinnises moved into their home in 1991, they began experiencing problems with the electrical system (light bulbs would blink and burn out; the electric heat pump/air conditioning unit would not cool; etc.). The McGinnises testified that they telephoned Jim Walter to complain about the electrical problems and that on two occasions Jim Walter sent someone to the McGinnis home to check out these problems. The McGinnises testified that they did not notify either Holsombeck or Alabama Power about these electrical problems.

At approximately 11:00 a.m. on April 12, 1996, a fire partially destroyed the McGinnis home, and the McGinnises' two-year-old daughter Takresha died as a result of the fire. The fire substantially destroyed the front middle bedroom and portions of the house immediately overhead in the attic. Takresha died of smoke inhalation.

The State fire marshal's investigation concluded that the fire originated in the front middle bedroom and that the most probable cause of the fire was "children playing with matches." The McGinnises contend that the fire originated in the attic of the house above the front middle bedroom and was caused by a failure in the electrical wiring system and that actions and/or inactions on the part of each defendant contributed to cause the fire.

Holsombeck contended that there was no basis to find it liable for the fire that caused the death of Takresha McGinnis, especially in light of the State Fire Marshal's determination that the fire started in the front middle bedroom and that the probable cause of the fire was "children playing with matches." In its summary-judgment motion, Holsombeck contended that the court had before it no substantial evidence regarding causation. Holsombeck contended that the basis of the McGinnises' theory (that the fire was caused by improper installation of the electrical wiring system) required the Court to consider inference built upon inference -- (1) because there were at least three alleged electrical defects in the house (none of which was noted on the building inspector's report and none of which caused or contributed to the fire), the entire electrical system must be defective; (2) there was no other heat source in the attic, so electrical wiring must have caused the fire; (3) because there were at least three staples driven too tightly into electrical wire located throughout the house (none of them was found in the attic, and no evidence indicated that any wire conductor within the insulation had been damaged by staple intrusion), there must have been a staple driven too tightly into an electrical wire located in the attic and that staple must have caused an arc that in turn caused the fire; and (4) the burn patterns in the front middle bedroom were exaggerated, so the mattress located in that bedroom must have been a foam-rubber mattress that was ignited when the fire fell from the attic above.

As previously noted, the McGinnises contended, based upon the findings of their experts, that the fire originated in the attic of the house, above the front middle bedroom, and that it was caused by a failure in the electrical wiring system in the attic. The McGinnises argued that it is undisputed that they had experienced persistent electrical problems after they moved into their home and that their experts' findings demonstrated the following: that Holsombeck negligently installed the electrical system in the McGinnis house; that Holsombeck was clearly not competent to install the electrical system in the McGinnis home; and that the state of the electrical system in the McGinnis home rendered the home unsafe for habitation.

As previously noted, the court reviews the evidence presented on a motion for summary judgment to determine whether it created a genuine issue of material fact and, if it did not, whether the movant was entitled to a judgment as a matter of law. Holsombeck, as the party moving for a summary judgment, had the burden of making a prima facie showing that no material fact was in dispute. If it made that showing, then the burden shifted to the nonmovants, the McGinnises, to present substantial evidence creating a genuine issue of material fact. In conducting this review, the court considers all of the relevant undisputed evidence and views relevant disputed evidence in a light most favorable to the nonmovants, the McGinnises; and resolve all reasonable doubts against the movant, Holsombeck. "[S]ummary judgment[s] [are] rarely appropriate in negligence actions, which almost always present factual issues of causation and of the standard of care that should have been exercised." Yarborough v. Springhill Mem'l Hosp., 545 So. 2d 32, 34 (Ala. 1989).

Viewing the relevant disputed evidence in a light most favorable to the McGinnises, the court found a genuine issue of material fact as to the cause of the fire. The trier of fact could find that the fire started in the attic of the McGinnis home and that it was caused by defective installation of wiring; or, the trier of fact could find that it started in the middle bedroom and that it was caused by young children's playing with matches. This question should not be resolved a summary-judgment motion.

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), (e-mail),, emergency loss assistance - pager (619) 333-2713.

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