Richardson v. Southeastern

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 1, 1999
• Docket: 98-7033
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 1 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

TERRY RICHARDSON,

Plaintiff-Appellant,

v. No. 98-7033 (D.C. No. 97-CV-186-B) SOUTHEASTERN ELECTRIC (E.D. Okla.) COOPERATIVE OF DURANT, OKLAHOMA, a corporation; METT BROTHERS, INCORPORATED,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

In this diversity action, Terry Richardson appeals the district court’s

summary judgment dismissal of his complaint alleging that defendants’

negligent electrical equipment and service caused a fire which destroyed his

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. home. 1 Subject matter jurisdiction is based on diversity of citizenship pursuant to

28 U.S.C. § 1332(a). A federal court sitting in diversity applies the substantive

law of the forum state. See Farmers Alliance Mut. Ins. Co. v. Salazar , 77 F.3d

1291, 1294 (10th Cir. 1996) (applying Oklahoma law). Therefore, we apply the

substantive law of Oklahoma.

“We review the grant or denial of summary judgment de novo, applying the

same legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c).”

Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (further quotation omitted).

We examine the factual record and the inferences reasonably drawn from the facts

in the light most favorable to the party opposing summary judgment. See Applied

Genetics Int'l, Inc. v. First Affiliated Sec., Inc. , 912 F.2d 1238, 1241 (10th Cir.

1990).

“Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Kaul , 83 F.3d at 1212 (further quotation

omitted). Once the party that asked for summary judgment shows the absence of

1 After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

-2- a genuine issue of material fact, the nonmovant “cannot rest upon his or her

pleadings, but must bring forward specific facts showing a genuine issue for trial

as to those dispositive matters for which [he or she] carries the burden of proof.

Craig v. Eberly , 164 F.3d 490, 493 (10th Cir. 1998) (quotations omitted).

Mr. Richardson’s home, including its furnishings, was completely destroyed

by fire on August 31, 1995. His complaint alleged that the fire was caused by

defendants’ negligence in installing a power line and connecting electrical service

to his home in the days immediately preceding the fire. Mr. Richardson presented

evidence that defendants’ installation of electrical service was not performed by a

licensed electrical contractor and that several aspects of the installation did not

comply with the National Electrical Code.

Defendants presented evidence from an expert in electrical power and

control systems and fire investigation that defendants’ electrical equipment and

service were not the cause or origin of the fire. Defendants’ expert provided

a detailed affidavit describing his site inspection and analysis of Mr. Richardson’s

property after the fire. See Appellant’s App. at 64-66. In the affidavit,

defendants’ expert verified that there was no indication that defendants’ electrical

service equipment malfunctioned or started the fire and that the physical evidence

suggested that the electrical service and equipment at Mr. Richardson’s home

were de-energized at the time of the fire, in which case the service and equipment

-3- could not have been the cause or origin of the fire. See id. at 65-66. T he expert

also testified that, had the electrical service and equipment been involved in the

initiation of the fire, there would be evidence of sustained electrical arcing

damage, which was not found on the electrical equipment at Mr. Richardson’s

home. Id.

In response to this evidence, Mr. Richardson failed to present any evidence

indicating what initiated or caused the fire, or to present any evidence refuting

defendants’ evidence that the fire was not caused by their electrical service or

equipment. “‘Failure to establish that the defendant’s negligence was the

proximate cause of the harmful event is fatal to [a] plaintiff’s [negligence]

claim.’” Lefthand v. City of Okmulgee , 968 P.2d 1224, 1225-26 (Okla. 1998)

(quoting Thompson v. Presbyterian Hospital, Inc. , 652 P.2d 260, 263 (Okla.

1982)). “As a general rule the question of proximate cause is a question of fact

for the jury. Id. at 1226. “[T]he question of proximate cause becomes a question

of law when the facts are undisputed and there is no evidence from which a jury

could reasonably find a causal connection between the allegedly negligent act

and the injury.” Id.

We agree with the district court’s conclusion that Mr. Richardson failed to

present any evidence indicating a causal link between defendants’ electrical

equipment or service and the fire. Where the nonmovant will bear the burden of

-4- proof at trial on a dispositive issue, that party must go beyond the pleadings and

designate specific facts so as to make a showing sufficient to establish the

existence, as a triable issue, of an element essential to that party’s case in order to

survive summary judgment. See McKnight v. Kimberly Clark Corp. , 149 F.3d

1125, 1128 (10th Cir. 1998). Mr. Richardson’s general and conclusory conjecture

regarding causation is insufficient to show there is a genuine issue of material

fact or that the defendants are not entitled to summary judgment as a matter of

law. See Elsken v. Network Multi-Family Sec. Corp. , 49 F.3d 1470, 1476

(10th Cir. 1995) (“Conclusory allegations that are unsubstantiated do not create

an issue of fact and are insufficient to oppose summary judgment.”). Because

Mr. Richardson failed to present any evidence that defendants’ negligence caused

the fire, an essential element of his claim, the district court correctly granted

summary judgment in favor of defendants.

AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge

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