TOM and GARNETT HUFF v. STEVE HUFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5649-10T3

TOM and GARNETT HUFF,

Plaintiffs-Appellants,

v.

STEVE HUFF,

Defendant-Respondent.

________________________________

March 22, 2012

Argued March 5, 2012 - Decided

Before Judges Parrillo and Grall.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Cumberland County, Docket No. L-711-09.

Justin R. White argued the cause for appellants (Testa, Heck, Scrocca & Testa, attorneys; Mr. White, on the briefs).

Stephen V. McHugh argued the cause for respondent (Kent & McBride, attorneys; Mr. McHugh, on the brief).

PER CURIAM

This matter arises out of a fire that occurred on February 5, 2009, at the property of plaintiffs Tom and Garnett Huff, husband and wife, in Stow Creek Township. Plaintiffs' three-bayed garage burnt to the ground along with its contents. The fire originated within the cab of a commercial diesel dump truck owned by the couple's son, defendant Steve Huff, that was parked in the garage alongside plaintiffs' dump truck and that of another individual. Plaintiffs sued defendant in negligence, alleging that defendant's failure to maintain his vehicle led to the fire and resultant damage. Following discovery, defendant moved for summary judgment, which the motion judge granted and from which plaintiffs now appeal.1 We affirm.

The facts viewed in the light most favorable to plaintiffs, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Defendant is a professional truck driver who owns his own trucking company. He uses one heavy-duty dump truck for his business, a 1989 Ford L-9000 with a Caterpillar diesel engine. The Ford Motor Company manufactured the wiring harness. The harness contains the wires that travel throughout the vehicle controlling accessories. The wires ran throughout defendant's truck, under the dashboard, and eventually connected to a circuit breaker on top of the dashboard on the passenger side. Back in November 2008, while defendant was sitting in his truck, smoke began coming out of the circuit breaker box, which is located on the passenger side dashboard in the cab, and was repaired by Paul Italiano, the mechanic who serviced defendant's truck for many years.

Located very near and below the circuit breaker box is the truck's heating and air conditioning unit. Some months prior to the fire, defendant heard a squealing noise in the heater blower fan. When the truck was last serviced by Italiano on January 23, 2009, for replacement of the air dryer cartridge, defendant told the mechanic about the "squealing" sound, which Italiano did not personally experience. Nevertheless, Italiano explained that motors and blower fans in dump trucks tend to clog with dirt and dust and that this blockage prevents the fan from moving, causing the blower fan motor to become hot. Despite this advice, defendant never replaced the blower fan.

On the morning of February 5, 2009, as was his usual routine, defendant went to his parents' house for breakfast and to pick up his truck from the garage where it was stored. Defendant and his mother went into the garage to get the trucks ready. Defendant first unplugged his truck engine's block heater that had been plugged into the electrical supply overnight to keep the engine warm. Garnett then started her son's truck and let it idle while defendant opened the bay doors. Defendant went into his truck and turned the heater on low, then returned to the house for a few minutes to finish getting ready.

While defendant's truck was warming up, his father went out to the garage to start his own truck at approximately 6:25 a.m. He walked around defendant's idling truck and checked the tires. Everything appeared to be fine. He left the garage after about five minutes. Defendant returned to the garage at around 6:35 a.m., accompanied by his mother. At that time, he saw smoke coming out of the window of his truck. He immediately opened the driver's side door, and saw flames, approximately a foot high, covering the area from the passenger side to the middle of the dashboard area. Defendant drove his father's truck out of the garage at his mother's insistence, while Garnett went into the house and called the fire department. The fire spread from the interior of the cab of defendant's truck and caused significant damage to both the garage as well as to the other dump truck stored there.

Lieutenant Donald Sims of the Bridgeton Fire Department responded to the scene at 7:04 a.m., along with Battalion Chief Todd Bowen, who was there to investigate the cause of the fire. Chief Bowen noted there were "high amounts of flame damage to both vehicles left in the barn. . . . Nearly all items in the barn were destroyed beyond repair." He concluded:

The vehicles were in the [garage] overnight, plugged into wall receptacles using heavy duty extension cords. The problem only arose after the truck was started in the morning and the engine was running. The area of origin for this fire is the passenger side front dash area, in the region of the heater/air conditioning unit. The exact cause could not be determined by this investigator, but is possibly a malfunction in one of the vehicle's electrical or mechanical systems.

Bowen ultimately determined the fire to be accidental in nature, but could not state whether negligence was involved as his job was limited to "origin and cause only." An investigator hired by Allstate reached a similar conclusion: "[T]he fire originated on the interior of Steve Huff's truck; and was most likely accidental in causation, the result of an unspecified failure within the vehicle's heating system."

As noted, following discovery, defendant moved for summary judgment, maintaining that plaintiffs' negligence claim fails for want of expert testimony as to the cause of the fire. Plaintiffs countered that the doctrine of res ipsa loquitur applies here to render the evidence adequate for jury resolution. In granting summary judgment dismissal of plaintiffs' complaint, the judge concluded that plaintiffs had not satisfied all the requirements for application of the doctrine and that, in any event, expert testimony is necessary to establish causation, noting "[t]his is a complex electrical and mechanical device that allegedly caused the fire. There are other possible causes and without expert testimony, causation and proximate causation of the damages cannot be adequately proven." Specifically, the court reasoned:

But it's clear from the record in this matter that the heater fan was not the only electrical or mechanical device in that area of the dashboard in the cab. Indeed, a circuit breaker box located very near the heater unit was also there and had been problematic in the past, the not too distant past and had to be repaired by the very mechanic who did the other repairs on the truck.

There is insufficient proof in this matter without expert testimony to link the squeal in the fan to be the cause of the fire. This is not a situation like a malfunctioning automatic door in a shopping center where the fact that the door closed on someone while they are entering or exiting the vehicle is -- bespeaks negligence. Here we don't know the exact cause of the fire. Here we don't know if in fact the heater fan malfunctioning was indeed the cause of the fire. It could have been but without expert testimony it would be speculation and guessing.

On appeal plaintiffs raise the following issues:

I. SUMMARY JUDGMENT STANDARD.

II. THE EVIDENCE WHEN VIEWED IN A LIGHT MOST FAVORABLE TO THE NON-MOVANTS SHOWS THAT STEVE HUFF VIOLATED BOTH COMMON LAW AND STATUTORY DUTIES IN FAILING TO MAINTAIN HIS DUMP TRUCK

IN A SAFE AND PROPER MANNER.

A. STEVE HUFF'S ACTIONS AND INACTIONS WERE

IN VIOLATION OF THE STANDARD OF CARE

IMPOSED BY TITLE 39.

B. STEVE HUFF'S ACTIONS AND INACTIONS

WERE IN VIOLATION OF THE DUTY

IMPOSED BY THE ADMINISTRATIVE CODE.

C. EXPERT TESTIMONY IS UNNECESSARY IN

PROVING THE PLAINTIFFS' CASE.

III. THE DOCTRINE OF RES IPSA LOQUITUR

APPLIES AND DICTATES THE DENIAL OF

SUMMARY JUDGMENT.

A. THE INCIDENT IN QUESTION BESPEAKS

NEGLIGENCE ON THE PART OF STEVE HUFF.

B. STEVE HUFF'S ALTERNATE THEORIES

AS TO THE HAPPENING OF THE INCIDENT

ARE UNSUPPORTED BY THE FACTS OF

THIS CASE.

IV. THE CASES INVOLVING FIRE LOSS RELIED UPON

BY THE DEFENDANT IN THE COURT BELOW ARE DISTINGUISHABLE.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we affirm substantially for the reasons stated by the motion judge in his oral decision of June 9, 2011. We add only the following comments.

"[A] plaintiff is not entitled to bring her case to a jury under res ipsa loquitur any time there is an unexplained accident for which a defendant might plausibly be responsible." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 545 (App. Div.), certif. denied, 145 N.J. 347 (1996); accord Cockerline v. Menendez, 411 N.J. Super. 596, 612 (App. Div.), certif. denied, 201 N.J. 499 (2010). Rather, a plaintiff must first meet three requirements. Thus, the doctrine "permits an inference of defendant's negligence where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect." Jerista v. Murray, 185 N.J. 175, 192 (2005) (internal quotation marks omitted). The plaintiff must "'meet all of the elements of the three-part res ipsa loquitur test, and . . . a plaintiff's failure to prove any one of those elements by a preponderance of the evidence renders the doctrine and its concomitant burden-shifting unavailable to that plaintiff.'" Cockerline, supra, 411 N.J. Super. at 614 (quoting Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 389-90 (2005)). "Res ipsa loquitur is not a theory of liability; rather, it is an evidentiary rule that governs the adequacy of evidence in some negligence cases." Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 95 (1999) (citation omitted).

Plaintiffs here simply have not shown that the fire is the kind of event that does not normally occur absent negligence. Indeed, courts have been reluctant to apply res ipsa loquitur in fire cases:

The rule of res ipsa loquitur is infrequently applied to cases involving fires, and to a lesser extent to explosion cases. The reasons are not difficult to perceive. The cause of a fire is generally unknown, fires commonly occur where due care has been exercised as well as where due care was wanting. Where a fire originates on a defendants' premises, that alone is not evidence that it was started by the defendant, nor that the fire was caused by any negligence on its part.
 
[Menth v. Breeze Corp., 4 N.J. 428, 435-36 (1950) (internal citations omitted).]

In this regard, neither the Battalion Chief nor the investigator retained by Allstate were able to state conclusively what caused the fire. Chief Bowen found there was "nothing in [his] training" that enabled him to "determine [what] exactly caused it[,]" and therefore he could not make a determination that negligence was involved, nor rule out the possibility that the electrical system wore out along with the rest of the truck. In fact, the circuit breaker box, which was in the same vicinity of the point of the fire's origin as the heater fan, had been repaired in the "not too distant past . . . by the very mechanic who did the other repairs on the truck[,]" and who explained the circuit breaker failure may have been caused by normal wear and tear.

Nor have plaintiffs shown the truck was within defendant's exclusive control. In the first place, it was stored in plaintiffs' garage, to which plaintiffs had equal access. In fact, defendant's mother customarily started the truck each morning. Moreover, only minutes before the fire, defendant's father inspected his son's idling vehicle and neither observed any irregularities nor heard the blower fan squealing. This circumstance, alone, would preclude employment of the doctrine.

But even if applicable, "when the res ipsa inference falls outside of the common knowledge of the fact finder and depends on scientific, technical, or other specialized knowledge[,] expert testimony [is] required." Jerista, supra, 185 N.J. at 199. Unlike the automated door that abruptly closed on the customer entering the supermarket in Jerista, which the Court found to be "an occurrence bespeaking negligence that falls within jurors' common knowledge[,]" 185 N.J. at 200, a heavy-duty commercial diesel truck's electrical system is vastly more complicated and well beyond the ken of the average juror, who simply does not have the same day-to-day interaction with this complex device as he or she would have with automatic doors. And even in Jerista, unlike here, the plaintiff "presented as witnesses an employee of the door manufacturer who explained how the automatic door functioned, and an engineering expert who 'suggest[ed] several things that might have gone wrong,' but could not 'pinpoint the actual operational failure that did occur.'" Jerista, supra, 185 N.J. at 193 (quoting Rose v. Port of N.Y. Auth., 61 N.J. 129, 135-37 (1972)). Here, of course, plaintiffs presented no expert proofs whatsoever, leaving a jury to speculate as to the cause of the fire. Under these circumstances, the summary judgment dismissal of plaintiffs' complaint was proper.

Affirmed.

1 Allstate New Jersey Insurance Company (Allstate) had filed a separate suit against plaintiffs and defendant for declaratory relief denying coverage for the fire because plaintiffs allegedly violated policy terms as they used the garage "for business purposes," and misrepresented information on their policy application. The cases were consolidated on March 19, 2010, and thereafter Allstate moved for summary judgment, which the motion judge ultimately granted. That judgment has not been appealed.