CITIZENS INSUR CO V BRADFORD WHITE CORP
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STATE OF MICHIGAN
COURT OF APPEALS
CITIZENS INSURANCE COMPANY,
UNPUBLISHED
November 28, 2000
Plaintiff-Appellant,
v
No. 218608
Livingston Circuit Court
LC No. 97-015795-NP
BRADFORD WHITE CORPORATION,
Defendant,
and
CLASSIC WATER CONDITIONER, d/b/a
HOMEOWNER’S PLUMBING,
Defendant-Appellee.
Before: Kelly, P.J., and Whitbeck and Collins, JJ.
PER CURIAM.
Plaintiff Citizens Insurance Company appeals as of right from the trial court’s order
granting judgment notwithstanding the verdict (JNOV) to defendant Classic Water Conditioner,
doing business as Homeowner’s Plumbing.1 Plaintiff brought its negligence action as subrogee
of its insured clients, Douglas Sederholm (Sederholm) and Agnes Sederholm, whose home was
damaged in 1996 by a fire involving a water heater installed by defendant in 1995. The jury
found defendant fifty-five percent negligent. The trial court granted defendant’s motion for
JNOV on the basis that no reasonable juror could have found defendant negligent on the
evidence presented. We reverse the order granting JNOV and remand for reinstatement of the
jury verdict.
A motion for JNOV should be granted only when the evidence, viewed in the light most
favorable to the nonmoving party, is insufficient to create an issue for the jury. Pontiac School
Dist v Miller, Canfield, Paddock & Stone, 221 Mich App 602, 612; 563 NW2d 693 (1997). “If
1
Defendant Bradford White Corporation settled with plaintiff on the second day of trial and is
not a party to this appeal. For purposes of clarity, we use the singular “defendant” to refer to
Homeowner’s Plumbing only.
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the evidence is such that reasonable people could differ, the question is for the jury and JNOV is
improper.” Id.
Plaintiff argues that JNOV was improper in this case because plaintiff presented evidence
sufficient to create questions of fact for the jury with regard to whether defendant was negligent
and whether its alleged negligence was the cause of the fire. Defendant contends that JNOV was
proper because plaintiff did not present evidence sufficient to create a question with regard to
whether its conduct was the proximate cause of the fire. Specifically, defendant contends that
because plaintiff failed to pinpoint the ignition source of the fire, it could not prove that
defendant’s conduct caused the fire. “[P]roving proximate cause actually entails proof of two
separate elements: (1) cause in fact, and (2) legal cause, also known as ‘proximate cause.’”
Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994).
The cause in fact element generally requires showing that “but for” the
defendant’s actions, the plaintiff’s injury would not have occurred. On the other
hand, legal cause or “proximate cause” normally involves examining the
foreseeability of consequences, and whether a defendant should be held legally
responsible for such consequences. A plaintiff must adequately establish cause in
fact in order for legal cause or “proximate cause” to become a relevant issue. [Id.
at 163. (citations omitted).]
Cause in fact may be established by circumstantial evidence that permits “reasonable inferences
of causation, not mere speculation.” Id. at 163-164. “[A] basis in only slight evidence is not
enough. Nor is it sufficient to submit a causation theory that, while factually supported, is, at
best, just as possible as another theory.” Id. at 164. However, “if there is evidence which points
to any 1 theory of causation, indicating a logical sequence of cause and effect, then there is a
juridical basis for such a determination, notwithstanding the existence of other plausible theories
with or without support in the evidence.” Id., quoting Kaminski v Grand Trunk W R Co, 347
Mich 417, 422; 79 NW2d 899 (1956). “All that is necessary is that the proof amount to a
reasonable likelihood of probability rather than a possibility.” Skinner, supra at 166, quoting
57A Am Jur 2d, Negligence, § 461, p 442.
Here, uncontroverted trial testimony showed that in 1990, defendant installed a Bradford
White through-the-wall (TTW) water heater in Sederholm’s home. At that time, defendant also
installed a vent tube that directed gases out of the home. Defendant replaced the 1990 TTW
water heater in 1995 with a newer version of the Bradford White water heater, a TTW2.
Defendant installed the TTW2 in the same location as the 1990 unit, but did not replace the
existing vent tube. Plaintiff’s theory was that defendant’s failure to replace the existing vent tube
when it installed the TTW2 or its installation of the vent tube near insulation around the water
pipes, without sufficient clearance between the two, created a pyrophoric condition which caused
either the vent tube or the insulation to ignite.
Dan Terski, an experienced fire investigator, testified that his investigation showed that
the fire was slow-burning and that it began immediately above the water heater. Terski further
testified that the only combustible materials at the point of origin of the fire were the vent tube
from the water heater and the insulation around the water pipes; he eliminated everything else.
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Terski identified the heat source as the vent tube, through which hot gases from the water heater
traveled out of the house, and testified that the heat alone, without flame, could ignite material
that has been subject to constant heating over a period of time, resulting in a pyrophoric
condition. He explained as follows:
I believe that the insulation material was in contact with the vent tube. I think the
vent tube caused a deterioration of that insulation material, which ignited it
eventually. This could be over a long period of time; the heating coming from the
vent tube has lowered the ignition of the – insulation material in those pipes,
eventually igniting those pipes or the insulation material.
[I]t’s called a pyrophoric condition. Basically, it’s the constant heating over a
long period of time which lowers the ignition temperature of the combustible
that’s in contact with it. We see it above furnaces, above water pipes that are
constantly heated; it will lower the ignition point.
The jury also heard testimony that the risk of ignition from a pyrophoric condition
decreases as the clearance between the combustible material and the heated surface increases.
Detailed, conflicting evidence was presented with regard to how much clearance was required
between the vent tube and combustibles. The jury heard testimony that the 1990 heater required
a six-inch clearance, and that information on the TTW2 indicated that clearance for that water
heater could be as little as one inch. However, both Terski and Neil Hepner, a licensed
mechanical engineer, testified that, with regard to the TTW2 as installed, they believed there was
zero clearance between the vent tube and insulation. Further, it was uncontroverted that the
installers failed to replace the 1990 vent tube when they installed the TTW2, although the
manufacturer sent a new vent tube with the TTW2. Moreover, the service manual for the TTW2
instructed that only specified equipment should be used with the water heater, and the older vent
tube, which had a different part number from the vent tube included with the TTW2, was not a
specified part. The jury also heard testimony that the 1990 heater subjected the vent tube to
severe operating conditions, including continuous heating over a period of five years, that likely
had a deteriorating effect on the tube.
In granting defendant’s motion for JNOV, the trial court stated that there was no evidence
to show when, or by whom, the insulation was installed. However, the record reveals conflicting
testimony with regard to who installed the insulation. Defendant’s installers testified that it was
not their normal practice to install insulation and defendant’s billing invoices did not indicate
that insulation had been used. The evidence also showed, however, that defendant’s invoices did
not always completely detail all of the materials and labor expended for each job. Furthermore,
plaintiff presented evidence that the homeowner did not install the insulation and that the
homeowner believed it was installed with the water heater.
We find that this evidence was sufficient to create a question for the jury with regard to
causation. Contrary to defendant’s assertions, plaintiff does not need to pinpoint what
specifically ignited the fire in this case in order to prove causation. “Absolute certainty cannot be
achieved in proving negligence circumstantially; but such proof may satisfy where the chain of
circumstances leads to a conclusion which is more probable than any other hypothesis reflected
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by the evidence.” Skinner, supra at 166, quoting 57A Am Jur 2d, Negligence, § 461, p 442. The
evidence was sufficient to support plaintiff’s theory that, more likely than not, the fire occurred
because the vent tube and/or insulation ignited, due to their pyrophoric condition. Furthermore,
because the jury could reasonably conclude that defendant improperly installed both the vent tube
and the insulation, it is not critical to identify which material ignited first.
The evidence in this case was not merely slight nor did it equally support several theories.
Plaintiff’s theory offered a logical sequence of cause and effect borne out by the many facts in
evidence. Skinner, supra at 164. Because the evidence was sufficient to create a material issue
for the jury, the trial court erred when it granted defendant’s motion for JNOV. Pontiac School
Dist, supra at 612.
Reversed and remanded for reinstatement of the jury verdict.
jurisdiction.
We do not retain
/s/ Michael J. Kelly
/s/ William C. Whitbeck
/s/ Jeffrey G. Collins
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