Breaking Legal Developments

04-14-2003

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

EXECUTIVE SUMMARY:      This weekly newsletter covers:

1. California Court Upholds Refusal to Give Res Ipsa Instruction
   

(1) CALIFORNIA COURT UPHOLDS REFUSAL TO GIVE RES IPSA INSTRUCTION

In Smith v. Hawthorne Mach. Co., No.D038414, the Fourth District Court of Appeals, Division One, upheld the trial court's refusal to give a conditional res ipsa instruction in a fire loss case.

Matthew Smith appealed a judgment in favor of Hawthorne Machinery Company and Hawthorne Power Systems (collectively Hawthorne) in Smith's action for strict liability, breach of express and implied warranties and negligence stemming from a fire that occurred on Smith's self-built custom yacht during its maiden voyage. Smith contended the trial court prejudicially erred by refusing to give the jury a conditional res ipsa loquitur instruction. The court concluded the evidence at trial did not warrant application of the res ipsa loquitur doctrine and affirmed the judgment.

In approximately 1994 or 1995, Matthew Smith desired to create a brand new line of yacht and started a new business, Westbourne Custom Yachts (Westbourne). Smith had operated various enterprises over the years including a car and boat repair company and yacht restoration business, and believed he could competently build an entirely new vessel based on his past restoration efforts.

Smith retained a naval architect and put together a team of employees and consultants to construct his first yacht, the Nantucket 44, hull no. one. In 1997, Smith purchased two Caterpillar Model 3126 marine engines from Hawthorne. He collected the engines, which were wrapped in plastic on wooden pallets, and placed them in the corner of his machine shop. During the construction process Smith placed the engines into the boat on a temporary basis to confirm the alignment of other parts. He had the engines hooked only to mounting feet and the propeller shaft; he did not need to get them running and did not modify the engines as part of the fitting process.

At some point, Smith advised Hawthorne he was displeased with the quality of the primer finish on the engines and Hawthorne arranged to take them back to its facility to repaint them. At the same time, Smith asked the Hawthorne representative if they could shorten a hard fuel line on one of the engines that he felt was in a vulnerable configuration. Several weeks later, Hawthorne returned the repainted engines to Smith. The hard fuel line Smith was concerned about had been replaced by a flexible fuel line.

During the course of hull no. one's construction, the engines were lifted by crane and placed in the vessel five or six times. In about December 1997, Smith and his employees permanently installed the engines in the boat, using a marine exhaust system built from off-the-shelf components. Smith supervised two Westbourne employees in the installation and personally installed fue l supply and return lines that he and his employees constructed. They also installed an exhaust riser to the output of the turbocharger, connected battery cables to the starter motor, and connected wires from the back of the engine leading to dashboard gauges. According to Smith, it was not necessary to modify Hawthorne's reconfigured fuel line, nor was it necessary to dismantle any portion of the fuel system or do any mechanical work on the engines in order to install them.

In February 1998, Smith removed the vessel's rudders and propeller mechanisms, wrapped the boat in plastic and had it transported to Fort Lauderdale, Florida to exhibit it at a boat show. Smith did not need to uninstall or work on the engines during the approximately five-day transport. After arrival, Smith reinstalled the rudders, tillers, steering gear, propellers and their shafts, and realigned the engines in the water. Smith did not do any mechanical work on the engines, nor did he touch or modify the hose assembly installed by Hawthorne during the time the vessel was in the Florida marine yard.

On the morning of February 13, 1998, Smith prepared the boat for its maiden voyage to the show with one of his employees and his yacht broker, Wayne Helms. Smith ran each of the engines for approximately an hour or more while the boat was tied to the dock and visually inspected the boat to ensure there was proper oil pressure and no overheating, visible drips or leaks or unusual noises. For approximately an hour to an hour and a half, the boat was motored slowly through canals to the open sea, where Helms took control and edged the throttles to about 25 miles per hour. At some point, Smith noticed two-foot high flames rising from the engine room in the back starboard corner of the open hatch. He looked down into the engine compartment but did not see anything else unusual such as unattached hoses or leaking fluids. Helms also looked back and saw a bright, light-colored ball of flame on the starboard side of the starboard engine. Within seconds, the entire engine room was in flames. The fire quickly engulfed the boat, which sank off the Florida coast.

Smith sued Hawthorne and Caterpillar, Inc. under theories of strict liability, breach of express and implied warranties, and negligence. The matter proceeded to a jury trial against Hawthorne on the sole issues of negligence and breach of implied warranty. At trial, Smith presented the testimony of Raymond Of, a fire origin and cause expert. Of first inspected the remains of the boat and its engines in February 1998 and again in March 1998 with a marine surveyor, Frank Hamlin. He conducted interviews with Smith and Helms, and looked at pictures Helms had taken of the actively burning vessel. Of also engaged a former Caterpillar mechanic, David Hinkle, to assist him in determining potential fire causes. Hinkle reported that the cause of the fire was a missing check valve on the port side turbocharger, which allowed oil to build up inside the turbocharger causing a fire. Hinkle felt another potential cause was a constriction in the boat's exhaust system. Of, however, later ruled out the exhaust system as a contributing factor to the heat source.

In March 1998, based on his interviews, his examination of the boat and engines and study of burn patterns, Of concluded the fire originated in the starboard side of the rear engine compartment in the area of the front of the engine. Of was unable, however, to determine the cause of the fire at that time, although he had ruled out an electrical cause and had also ruled out a defect in the fuel supply and return lines. Later, Of adopted Hinkle's theory that the missing check valve caused the fire under the erroneous impression Hinkle had been talking about the turbocharger on the starboard side engine.

In the fall of 2000, Of was provided with service records generated by Hawthorne in connection with its work on the engines, as well as the service manual for the 3126 engine. Of learned then for the first time that Hawthorne had modified the fuel system by replacing the metal tubing with a hose assembly. At trial, Of opined why to him the information about the modification raised "potential" fire causation issues: "You're fabricating a new hose from scratch and there's potential that any one of the fittings could have not been properly torqued; could be missing o-ring, could be cross-threaded, could be tightened down too much, smashing an o-ring. There's a host of things that could go wrong if the mechanic is having a bad day or having a shortcut or doesn't bring his torque wrench; you could have a problem there that could cause a leak. And it goes back to what I was first told, again, in my eyewitness reports of the spewing and hose bursting sound that ties everything in together. That's why my eyewitness statements were so important to me." Of further explained these issues would explain a leak of fuel vapor: "If there was a problem in the manufacture, fabrication, parts, installation, any one of those four areas, of the fittings or the hose itself and a leak develops, you would have fuel being dispersed in an atomized state and the vapors could be ignited and I do have a heat source that could ignite those vapors." Of conceded the type of flexible hose used was appropriate for the particular diesel fuel line application.

Based on the new information gleaned from Hawthorne's service records, Of concluded the fire was most probably caused by the failure of the fuel delivery system specifically at the point where the fabricated hose line connected to a pump assembly, with the alternator directly beneath as the heat source. While Of could testify as to his belief the fuel line failed, he could not say whether the failure resulted from an improper installation, defect in the hose or o-ring, or over or under-tightened fittings. According to Of, any one of those defects could have been among possible reasons for the failure. Ultimately, Of was unable to identify any specific thing Hawthorne did wrong regarding the fuel line.

At the same time, Of could not rule out Hinkle's check valve theory. At trial, he testified there could have been problem with the turbocharger on the port engine but he no longer believed that was the origin of the fire. Of did not conclude Hinkle was wrong about his check valve theory, nor could Of rule out the possibility that the oil bypass valve caused fire in the turbocharger. He testified: "There is some evidence to suggest that there was a problem starting, in the very early stages, based on [Hinkle's] examination. I'm not going to say the man is lying. I just don't agree the fire originated there." Later, Of conceded the fires could have happened simultaneously. Speaking about Hinkle's theory, Of said: "Well, I don't totally accept his theory. I'm not comfortable with puting [sic] the fire on that side of the boat, but I cannot eliminate it. That's why I said it could have happened. We could have had two things happen simultaneously."

Hawthorne presented the testimony of John Clement, a mechanical and electrical engineer, and Norman Alvares, an expert in fire technology, fire protection engineering and heat transfer. Clement testified he was able to rule out certain causes of the fire, but could not say what actually caused the fire or where it originated. However, he disagreed the fire could have been caused by the turbocharger or missing check valve, and he also disagreed with Of's opinion that the flexible fuel line caused the fire by feeding the alternator with fuel. Alvares testified, based in part on the witness statements relating how the fire progressed and the unsuccessful attempts to extinguish it, the source of the fire had to have been a catastrophic release of fuel, and that a break in the flexible fuel line could not have been the source of fuel - in the form of vapor or aerosol - that would permit the kind of fire that resulted. Based on the boat engine's performance before the fire and the physical remains of the fuel line, he could not conclude the fuel line failed in the catastrophic way that it would have had to do in order to start the fire. Alvares opined the fire more likely than not was caused by fuel leaked from a fuel system return line, which collected in areas where it was heated to produce vapors that were then ignited by an electrical fault. He identified several different possible electrical sources in the surrounding area. Alvares admitted he could not say when the leak started, pinpoint either engine as the origination point of the fire, or identify whether it was the starboard or port engine return line that failed.

After the presentation of evidence, Smith unsuccessfully requested that the court instruct the jury with BAJI Nos. 4.00 and 4.02 3 on conditional res ipsa loquitur. In refusing the res ipsa loquitur instructions, the court reasoned: "On the res ipsa, this case I don't think comes close to requirement of res ipsa instruction because of the fact that even if . . . there was an error in the assembly of the engine by Hawthorne, and that there was a fire, the fact that no testing of the engine was done and that Hawthorne was not afforded the opportunity to test the engine in an installed fashion, I think could be - and the engine was outside the control, I don't think an instruction that responsibility necessarily falls to Hawthorne is appropriate. The failure of mechanical items because of the fact they are mechanical and the complexity of assembly of them does not always mean that someone was negligent in the assembly or manufacture of the item because of the failure. That's why the courts have recognized strict liability in products cases because they're not always accompanied by negligence."

The jury rendered a verdict in Hawthorne's favor, finding it was "negligent in working on the engines" but that its negligence was not the cause of Smith's damages. The court entered judgment in Hawthorne's favor. Thereafter, Smith moved for a new trial on the ground the court erred in law by failing to give its requested res ipsa loquitur instructions in order to permit the jury to consider the applicability of that doctrine. He also argued the evidence, particularly Alvares's testimony, was insufficient to sustain the jury's verdict. The court denied the new trial motion and Smith timely filed this appeal.

As a general rule, res ipsa loquitur applies where an injury is of such a nature that, in light of past experience, it can be said it was probably the result of negligence, and the defendant is probably the one responsible. (Clark v. Gibbons (1967) 66 Cal.2d 399, 408; Di Mare v. Cresci (1962) 58 Cal.2d 292, 298-299.) The doctrine is codified as a presumption affecting the burden of producing evidence. (Evid. Code, § 646.) For the presumption to arise, a plaintiff must produce the evidence supporting the following conditions: (1) the injury must be of a kind which ordinarily does not occur absent someone's negligence; (2) the cause or instrumentality must be within the defendant's exclusive control; and (3) the injury must not have been due to any voluntary action or contribution on the plaintiff's part. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826 (Brown); Ybarra v. Spangard (1944) 25 Cal.2d 486, 489.) When these prerequisites are met, the trier of fact is allowed to assume the existence of the presumed fact unless the defendant introduces evidence to the contrary. (Brown, at p. 826; Evid. Code, §§ 604, 646, subd. (c ).) The jury should be instructed on res ipsa loquitur where the plaintiff has "presented 'some substantial evidence which, if believed by the jury, would entitle it to draw an inference of negligence from the happening of the [injury] itself.' [Citation.]" (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 944.)

Where there is a question of fact about any of the conditions required for application of res ipsa loquitur, the issues are properly determined by the finder of fact. (Brown, supra, 4 Cal.4th at p. 840; Slater v. Kehoe (1974) 38 Cal.App.3d 819, 829 [where the evidence is conflicting or subject to different inferences as to a fact necessary for the applicability of the res ipsa loquitur doctrine the question is properly left to the jury]; see also Greening v. General Air-Conditional Corp. (1965) 233 Cal.App.2d 545, 553.) In such a case, the jury is given a form of conditional instruction leaving to it the final determination as to the application of the doctrine. (Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 777.) " ' "In considering the applicability of res ipsa, it is not for the trial court to ascertain whether a defendant's negligence is the more likely explanation of the accident. The court merely determines whether the plaintiff has produced sufficient substantial evidence to permit a jury to draw such an inference. Where reasonable men may differ as to the balance of probabilities, the trial judge must leave the question to the jury. . . . The jury, under appropriate contingent instructions, should have been permitted to conclude whether the three factual conditions of the doctrine had been met [citations]." ' " (Id. at p. 778.)

Having reviewed the evidence in the light most favorable to Smith, we conclude Smith's evidence did not give rise to a question of fact sufficient to permit a jury to decide whether or not res ipsa loquitur should apply. Specifically, the testimony of Smith's fire cause and origin expert, Of, does not permit a reasonable inference Hawthorn's modified fuel line was the more probable cause of the fire for purposes of the second prong of the res ipsa loquitur doctrine, namely that the accident must have been caused by an agency or instrumentality within Hawthorne's exclusive control. According to Prosser, the plaintiff may demonstrate the second prong " 'by a second inference, based on a showing of some specific cause for the accident within the defendant's responsibility, or on a showing that the defendant was responsible for all reasonably probable causes to which the accident could be attributed.' " (Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App.2d 784, 797-798, emphasis added, citing Prosser, Res Ipsa Loquitur in California (1949) 37 Cal.L.Rev. 183, 197-198.) Smith need not exclude other possible causes, so long as the evidence indicates Hawthorne's negligence is the more probable cause. In Brown, supra, the court explained: " ' [a]though . . . the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant, the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation of the accident.' " (Brown, supra, 4 Cal.4th at p. 840.)

Of's testimony does not permit an inference Hawthorne's negligence was the more probable explanation of the accident. There is no dispute that a fire erupted from the engine room of Smith's boat. Although he could pinpoint the origin of the fire on the starboard side of the rear engine compartment, Of initially could not determine the cause based on his investigation of the vessel's remains. Of then later changed his opinion after his receipt of certain Hawthorne records, concluding Hawthorne's reconfigured fuel was the most probable cause of the fire. Ultimately, Of's opinion rests on (1) the fact Hawthorne reconfigured the line as evidenced by the service sheet; (2) the mere potential that things could have gone wrong during the line's installation and (3) the nearby alternator as a possible heat source. Further, Of conceded Hawthorne's fuel line was one of two possible causes of the fire. After assessing the physical evidence, Of could not rule out the possibility that a turbo fire occurred at the same time from a missing check valve on the port side engine. Based on Of's testimony, a reasonable jury could at best infer the line was possibly the instrumentality that caused the fire. The evidence, even viewed most favorably to Smith, does not support the fuel line being the more probable cause of the fire than any other cause, including those advanced by Hawthorne's experts.

Smith maintains he presented sufficient evidence of this prong by the service records and testimony of Hawthorne personnel who confirmed Hawthorne alone designed, fabricated and installed the flexible fuel line/transfer pump assembly, and by his own testimony that neither he nor any of his personnel modified or mishandled the fuel transfer/primer pump assembly after the engines were returned by Hawthorne. While this evidence may show Hawthorne's exclusive control of the fuel line, it does not support a reasonable and logical inference that the fuel line caused the fire. (Clark v. Gibbons, supra, 66 Cal.2d at p. 409.) And, as we have explained, Of's testimony failed to establish the fuel line more probably than not was the fire's cause.

Citing Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 385-386 (Jiminez), Smith also argues the res ipsa loquitur doctrine eliminates the requirement he prove a particular defect caused the accident. Smith misunderstands the cited principle. In Jiminez, the plaintiff sued the defendant for personal injuries after his minimally used stepladder purchased from the defendant broke while he stood upon it. (Id . at p. 381.) The parties presented contradictory expert testimony as to why the ladder failed. (Id. at pp. 381-382.) After a defense verdict, the trial court ordered a new trial in favor of the plaintiff on his claim the court should have permitted the issues of negligence and res ipsa loquitur go to the jury. The California Supreme Court affirmed the trial court's order, agreeing the plaintiff need not have shown any particular defect as long as the occurrence of the injury was of the type that it could be said it was probably the result of negligence and that the defendant was the one responsible. (Id. at p. 385.) The court explained: "Although the science of accident investigation has proceeded apace, it obviously has not reached the point where the scientists are able to explain all accidents. When the coke bottle explodes as the plaintiff reaches for it in the vending machine [citation], when the motor catches fire shortly after the purchaser drives his car away from the dealer's garage [citation], or when the drive shaft of a recently purchased car becomes disconnected [citation], the plaintiffs' experts may not be able to tell us why the bottle broke, the motor caught fire, and the drive shaft became disconnected or may only be able to give weak evidence of the cause of the occurrences. In such cases, the plaintiff, assuming all requirements of the res ipsa loquitur doctrine are met, should be permitted to claim, and have the jury instructed, that from the happening of the accident an inference arises that the defendant manufacturer was negligent and that it is incumbent upon the defendant to meet or balance the inference. He should not be denied the inference of negligence merely because he has presented some evidence of a defect or of specific acts of negligence." (Ibid.) In Jiminez, the instrumentality causing the injury - the stepladder - undisputedly failed and caused the plaintiff's personal injuries. Likewise, in each of the examples set out by that court, the instrumentality that somehow failed - the bottle, the motor and the drive shaft - was identified as the cause of the injury. What the plaintiff need not prove to make out a showing of res ipsa loquitur is the reason why or how the causal instrumentality failed.

This principle does not apply here where the instrumentality causing the injury is not identifiable with any certainty by either expert witness in the case. We agree with Hawthorne that both parties proffered speculative theories about what instrumentality on the boat caused the fire, similar to the circumstances in Gicking v. Kimberlin (1985) 170 Cal.App.3d 73 (Gicking). In Gicking, the court of appeal affirmed the trial court's refusal to give res ipsa loquitur instructions in a case where a tenant in a shopping center sued another tenant for damages as a result of a fire of unknown cause. The evidence indicated two possible origins and causes of the fire, either heat build-up in the motor of the defendant's walk-in cooler, or very old electrical wiring in the attic under the control of the shopping center's owner. (Gicking, at p. 76.) Although both party's experts posited a theory of how the fire occurred and where it originated, neither could reach definitive conclusions on those issues. The court rejected the appellant's contention the court erred by refusing to give res ipsa loquitur instructions. It explained: "It is a fundamental, well-established rule that the doctrine of res ipsa loquitur does not apply where it is equally probable an accident was caused by some fault for which defendant was not responsible. [Citations.] The purpose of this requirement is to eliminate the possibility that a defendant will be found liable for someone else's negligence. [Citation.] [] . . . [] Moreover, res ipsa loquitur cannot be applied to infer negligence where the cause of an accident is merely speculative [citation], that is, where there are several possible causes and no cause can be excluded or included by the evidence [citations]." (Gicking, supra, 170 Cal.App.3d at p. 77.)

In Gicking, as here, the plaintiff argued the three conditions precedent to applying res ipsa loquitur did not need to be conclusively satisfied before an instruction was proper and that conflicting evidence should not preclude application of the doctrine. (Gicking, at p. 75.) But the court of appeal rejected that argument because neither party was in a better position to explain the cause of the accident. It explained: "[I]n a situation where there is conflicting evidence as to the cause of an accident, plaintiff is entitled to have a jury consider the case under the res ipsa loquitur doctrine so long as he/she has shown the defendant's negligence was the more probable explanation of the accident. [Citations.] [] There was no such evidence in this case. Appellants merely established respondents did not service their cooler in over two years and subsequently a fire broke out. There is no reasonable basis for contending these facts gave rise to an inference of negligence. [Citation.]" (Id. at p. 78, footnotes omitted.)

Such is the case here. The evidence relied upon by Smith established only that Hawthorne modified the fuel line on the starboard side engine and fire broke out in that area of the engine room, and possibly simultaneously in the area of the port engine. The experts merely posited theories about the fire's cause. Under the circumstances, the trial court did not err in refusing Smith's proposed res ipsa loquitur instructions, since Smith "did not establish the probability that [Hawthorne was] responsible for the fire as a matter of law." (Gicking, supra, 170 Cal.App.3d at p. 78, citing Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 442.)

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.

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