Inseco v. Cambridge Mut. Fire Ins. Co.

447 So. 2d 606, 1984 La. App. LEXIS 8193
CourtLouisiana Court of Appeal
DecidedMarch 7, 1984
Docket83-608
StatusPublished
Cited by14 cases

This text of 447 So. 2d 606 (Inseco v. Cambridge Mut. Fire Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Inseco v. Cambridge Mut. Fire Ins. Co., 447 So. 2d 606, 1984 La. App. LEXIS 8193 (La. Ct. App. 1984).

Opinion

447 So.2d 606 (1984)

Ronnie INSECO, Plaintiff-Appellant,
v.
CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY, Defendant-Appellee.

No. 83-608.

Court of Appeal of Louisiana, Third Circuit.

March 7, 1984.
Writ Denied April 23, 1984.

*608 Michael F. Shannon, Alexandria, for plaintiff-appellant.

Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.

Before DOMENGEAUX, GUIDRY and STOKER, JJ.

GUIDRY, Judge.

Plaintiff, Ronnie Inseco, filed suit against Cambridge Mutual Fire Insurance Company, the liability insurer of Rex Lofton, seeking damages for injuries sustained as a result of a fall from the roof of the Lofton house. After trial on the merits, the trial court rendered judgment dismissing plaintiff's demands at his cost. Plaintiff appeals. Defendant neither appeals nor answers the appeal.

FACTS

On March 3, 1982, plaintiff was visiting the residence of Rex Lofton when a fire started in the attic. Plaintiff, assisted by a neighbor, succeeded in extinguishing the fire with a garden hose through an attic door in the garage. The fire department had been summoned but had not yet arrived. Mr. and Mrs. Lofton were then in and out of the house, attempting to remove their personal effects from the house. Several neighbors had gathered. Plaintiff then noticed that there was smoke still coming from the back of the roof. Afraid that the fire would start again and possibly ignite the trees or a neighboring house, he decided to wet the roof down. Having determined that the major portion of the fire was to the rear of the house, he decided to climb up the front of the house which would be cooler. Two of the neighbors boosted the plaintiff up onto the front part of the roof. However, the roof was too hot and the plaintiff was unable to hold on, falling to the ground face down. The fire department arrived immediately thereafter. As a result of the fall, plaintiff sustained the fracture of five ribs and a crushed fracture of a lumbar vertebrae.

Plaintiff alleges that the fire was a result of defective or faulty electrical wiring; that Rex Lofton's negligence or the wiring defect was the legal cause of his injuries; and, that defendant is therefore liable under LSA-C.C. Articles 2315, 2317 and 2322.

On the other hand, defendant contends that plaintiff failed to prove by a preponderance of the evidence any negligence on the part of defendant's insured or any defect or ruin of the building such as to impose liability on the defendant. In the alternative, defendant asserts fault of the plaintiff, contributory negligence or assumption of the risk, as a total or partial bar to plaintiff's recovery. The parties also contest the applicability of the "rescuer doctrine" to this case.

In dismissing plaintiff's suit, the trial judge made no definitive finding as to the existence of a defect in the building or as to negligence on the part of Rex Lofton, concluding that, even if the existence of a defect be assumed, Mr. Inseco was not entitled to rescuer status and that he had assumed the risk.

*609 The basis of plaintiff's allegations of defendant's liability under both LSA-C.C. Arts. 2315, 2317 and 2322 is that the insured building contained a defect, i.e., faulty electrical wiring which posed an unreasonable risk of harm to plaintiff,[1] and that plaintiff's injuries were a result of encountering that risk.

As proof of the defect in the wiring, plaintiff offered the testimony of Rex Lofton to the effect that for some time prior to this fire, the Loftons had experienced problems with the electrical system, including the dimming of lights, fluctuating temperatures in the electrical oven and the light bulbs frequently burning out prematurely. This testimony was corroborated by plaintiff. Mr. Lofton also testified that he had called in an electrician to diagnose the problem. The electrician was apparently unable to pinpoint the problem on the first visit and Lofton decided it would be too expensive to remedy the problem. In addition, several of Mr. Lofton's neighbors testified that they had not experienced similar difficulties.

Mr. Andrew Moore, accepted by the court as an expert in electrical engineering, stated that the problems described by Mr. Lofton could only indicate a loose connection in a neutral or hot wire, which defect could cause a fire. Mr. Moore further testified that since the neighbors were not experiencing similar problems, the problem was not in the distribution line or in the power plant, but existed either in the service line, which connects the house to the distribution line, or in the electrical wiring in the house itself.

Mr. Lofton further testified that, after the fire on March 3, 1982, the utility company replaced the service line and the meter in his house. He nonetheless continued to experience the same difficulties and subsequently, in August of 1982, a second fire occurred which totally destroyed the residence.

Plaintiff submits that the above circumstantial evidence is sufficient proof of a defect or negligence on the part of defendant's insured.

"The plaintiff in a civil action bears the burden of proving by a preponderance of the evidence every element of fact essential to his recovery. Proof which establishes only possibility, speculation or unsupported probability is not sufficient to establish a claim." (citations omitted). Jennings v. City of Alexandria, 394 So.2d 718 at 721 (La.App. 3rd Cir.1981).

To meet the burden of proof required in civil cases, circumstantial evidence need not negate all other possible causes, it need only prove the causal relationship sought to be proved to be more probable than not. Vonner v. State through Dept. of Public Welfare, 273 So.2d 252 (La.1973). In A & M Pest Control Service, Inc. v. Fejta Construction Co., Inc., 338 So.2d 946 (La.App. 4th Cir.1976), the court, in effect, held that the test of sufficiency in a circumstantial evidence case is that, taken as a whole, such evidence must exclude other reasonable hypotheses with a fair amount of certainty but it need not negate all other possible causes.

We think that the evidence as a whole establishes that the fire more probably than not resulted from a defect in the electrical wiring in the Lofton residence. The fact that the fire started in the attic of a private residence limits the reasonable hypotheses of causation.[2] The only other reasonable hypothesis of causation offered in opposition to plaintiff's proof was the possibility that the wiring defect existed in the service line rather than the residence and thus, was the responsibility of the utility company and not defendant's insured. *610 We find that the evidence as a whole excludes this hypothesis with a fair amount of certainty. After the service line was replaced, the Loftons continued to experience the same electrical difficulties, indicating that the defect was confined to the Lofton's residence. We therefore conclude that plaintiff has established by a preponderance of the evidence that the cause of the fire was a defect in the electrical wiring in the Lofton's residence. To the extent that the trial court may have found otherwise, we find such conclusion to be clearly erroneous.

For the following reasons, we also conclude that the defect was the legal cause of plaintiff's injuries. LSA-C.C. Art. 2317 provides in part that we are responsible not only for the damage occasioned by our own act, but also for damages occasioned by things in our custody. LSA-C.C. Art.

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Bluebook (online)
447 So. 2d 606, 1984 La. App. LEXIS 8193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inseco-v-cambridge-mut-fire-ins-co-lactapp-1984.