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EXECUTIVE SUMMARY: This
weekly newsletter covers:
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EVIDENCE THAT STRIP MALL TENANT WAS ON NOTICE OF A BURNING ODOR COMING FROM ITS FLORESCENT FIXTURE AND THAT A MALFUNCTION IN THE FIXTURE "MAY" HAVE CAUSED THE FIRE, WAS ENOUGH TO FIND TENANT NEGLIGENT FOR FAILING TO INSPECT
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EVIDENCE THAT STRIP MALL TENANT WAS ON NOTICE OF A BURNING ODOR COMING FROM ITS FLORESCENT FIXTURE AND THAT A MALFUNCTION IN THE FIXTURE "MAY" HAVE CAUSED THE FIRE, WAS ENOUGH TO FIND TENANT NEGLIGENT FOR FAILING TO INSPECT
Case Summary In Dolgencorp of Texas v. Lerma (2007) 2007 Tex. App. LEXIS 6747, available at http://www.13thcoa.courts.state.tx.us/opinions/opsrch.asp. Defendant Dollar General Store was found liable to neighboring strip mall tenants for a fire that started in their store. Defendant Dollar asserted that there was no evidence submitted that Dollar actually did something to cause the fire or failed to do something that caused the fire. Rather, all that was submitted was fire investigator reports that an electrical malfunction or failure in Dollar's florescent light fixture could not be eliminated and that customers reported a smelling smoke prior to the fire and all Dollar did was change a light bulb in the fixture. The court of appeal upheld the verdict based on this evidence. Detailed Facts This appeal arises out of a post-answer default judgment entered against Dolgencorp of Texas, Inc, d/b/a Dollar General Store ("Dollar General"). Dollar General raises four issues: (1) there is no legally or factually sufficient evidence to prove proximate cause; (2) the judgment is based on an unpleaded theory of recovery; (3) the trial court abused its discretion in denying its motion for new trial; and (4) the administrative judge abused his discretion in failing to recuse the Honorable Abel Limas from hearing the motion for new trial. We withdraw our previous opinion and affirm the judgment of the trial court. Appellees and Dollar General were all tenants in the Palm Village Shopping Center. Appellees sued Dollar General alleging that its negligence caused a fire that damaged their leased space and inventory on May 9, 2000. The case was scheduled [*2] for trial on February 24, 2003. Dollar General's first issue complains that plaintiffs presented legally or factually insufficient evidence that Dollar General's negligence proximately caused the fire in question. In conducting a legal sufficiency review, we credit evidence supporting the judgment if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will sustain [*4] a legal sufficiency, or no-evidence, point if the record reveals one of the following: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence established conclusively the opposite of the vital fact. See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). If more than a scintilla of evidence exists, it is legally sufficient. Lee Lewis Constr. Co. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. Id. at 782-83. In conducting a factual sufficiency review, we view all the evidence in a neutral light to determine whether the contested finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex. 2003); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Dollar [*5] General argues that the only evidence presented by appellees at trial was offered to support a theory that a malfunctioning or defective light fixture caused the fire, a "premises defect" claim. The evidence, according to Dollar General, can be summed up in the two fire investigation reports introduced by the appellees at trial. In the Brownsville Fire Department's report, the report indicated the cause of the fire was "suspicious." The report states: The fire started in the northwest corner of the sales floor and spread to consume the entire back corner area of this establishment. The fire originally was thought to have come from a ballast from one of the lights in that area however, it was later determined that the electrical system was not the cause of this fire even though several deficiencies were found in the electrical system. After systematically ruling out all other accidental causes, it was determined that this fire is of a suspicious nature and remains open for investigation . . . .(Emphasis added by appellant)
Dollar General argues that this evidence conclusively disproves appellees' sole theory of liability presented at trial. Appellees disagree and contend the investigator [*6] left the matter "open for investigation."
The insurance company for Palm Valley Shopping Center's landlord retained Engineering and Fire Investigations to investigate the source of the fire. Investigator Bill Green's report states that: Available heat and possible ignition sources in the origin area include structural electrical wiring, lighting system components and incendiary. Examination of the structural electrical wiring revealed no evidence of malfunction. A failure or malfunction of one or more of the components in the lighting system and incendiary cannot be eliminated as a cause at this time. The accessible components of the lighting system were examined, and no conclusive evidence of an ignition source was noted . . . . The possibility of an incendiary fire has not been totally ruled out at this time. This is the second fire in 18 days at a Dollar General Store in the Rio Grande Valley. However, there was no conclusive evidence of incendiarism found during the investigation.Thus, according to Dollar General, the source of the fire could not be attributed to Dollar General's lighting system. Dollar General contends that "neither report determines, within reasonable probability, [*7] the cause of the fire. Neither report concludes that, more likely than not, a malfunctioning or defective light fixture caused the fire." In response, appellees point out that Green's report states "a failure or malfunction of one or more of the components in the lighting system and incendiary cannot be eliminated at this time." Green's report also summarized the investigative efforts of the Fire and Arson Division of the Brownsville Fire Department. According to the report, Raul Salazar, Fire Marshal for the City of Brownsville, concluded that "this fire originated between the ceiling and roof and was caused by a failure or malfunction in the lighting system." Salazar was the acting chief on the day of the fire and was at the scene of the fire in its early stages. Under his direction, statements were obtained from witnesses and store employees that indicated that as early as 5:20 p.m., store personnel were notified by a customer of "something smelling like it was burning." Again at 8:17 p.m., a customer informed employees of a "bad smell, described as like hot tar." The store employees indicated they either observed the smell or were told about it. One of the overhead lights had been [*8] blinking or going off, so the store manager had the bulbs removed. One employee, believed to be a regional manager, called Diamond Electric and asked them to come the next day to take care of whatever was wrong. At trial, Eduardo Flores, a Dollar General employee working on May 9, testified he smelled "smoke or some kind of electrical burning." The lights had been "flickering" and he was asked to remove a fluorescent light fixture. He replaced the fixture but "continued to smell smoke or some kind of strange electrical burning." Management for Dollar General did not call the fire department or electric company to investigate or turn the power off in the area of concern to investigate. Maria del Socorro Moyera testified she was a customer at the Dollar General store on May 9. She recalled smelling something like an electrical burn. She and her sister felt uncomfortable and decided to leave the store but on their way out told a cashier that "it smelled like if something was burning." The response they received was that "they were having electrical problems." Customer Rosa Maria Pena testified she was in the store at approximately 6:00 p.m. on May 9. She noticed a "bad smell" that was "strong." [*9] She reported the bad smell to a cashier who informed her that the manager had been notified and "they were going to change the light bulbs." The City of Brownsville Fire Marshal, Ben Nunez, testified that he assisted Bill Green in investigating the fire. Nunez opined "there was no conclusive evidence of any incendiary fire or arson." He testified "the only possible scenario that I would think of would be an electrical malfunction or failure in the fluorescent light fixtures possibly involving the ballast." Nunez explained "as you enter a confined space where an electrical light fixture is going bad because of the ballast, it's a very distinctive smell. It smells like tar or some plastics burning." It was his understanding that Dollar General made no attempts to remedy the situation other than change a light bulb. Finally, Nunez testified that the extensive smoke and water damage suffered by appellees was caused by the fire that originated in the Dollar General store. Dollar General argues the appellees must offer some evidence of what Dollar General actually did or failed to do to cause the fire. We conclude the foregoing evidence constitutes more than a scintilla of evidence that Dollar [*10] General was aware of a potential problem and failed to take action to investigate the problem. See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987) (discussing the "general duty to exercise reasonable care to avoid foreseeable injury to others"). The evidence is, therefore, legally sufficient to support the verdict. Lee Lewis Constr. Co., 70 S.W.3d at 782. Further, the finding of causation is not so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Golden Eagle Archery, 116 S.W.3d at 761-62; Pool, 715 S.W.2d at 635. Dollar General's first issue is overruled. [remaining unrelated portions of opinion omitted]
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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