Wipperfurth v Smith & Mills
Decided on June 2, 2008
Civil Court of the City of New York, New York County
Heike Wipperfurth and Isabel Hegner, Plaintiffs,
Smith & Mills d/b/a No Moore Oysters, LLC, Defendant.
Plaintiffs appeared pro se
Defendant was represented by Elizabeth Eilender, Esq., and David Tolchin, Esq.
Peter H. Moulton, J.
This Small Claims action was tried before the court on May 21, 2008. The plaintiffs' claims
were consolidated for trial. Plaintiffs represented themselves; defendant was represented by
The court finds the following facts.
Plaintiffs Heike Wipperfurth and Isabel Hegner testified that they went with two other friends to defendant's restaurant on the evening of November 23, 2007. The restaurant is in a small converted carriage house; defendant stipulated that the restaurant has only 18 dining (non-bar) seats. The plaintiffs' party was seated at a table for four. The table had at least one lit votive candle on it, and lit votives were arrayed around the small dining room. The votives were about three to five inches tall and enclosed in glass.
Alaska McFadden, the waitress on duty that evening, instructed the plaintiffs and their friends to hang their coats on one of the coat hooks fastened to the wall near their table. Plaintiffs and their friends hung their four coats on this hook, which caused the coats to project out into the room. The hook was above a cabinet used for silverware. After hanging up her coat, Hegner went to the restroom.
In a matter of two or three minutes the plaintiffs' coats caught fire. Upon exiting the restroom Hegner saw smoke and fire emitting from the coats. She alerted her companions. The restaurant filled quickly with smoke and no little confusion. Wipperfurth and two friends left the restaurant and observed the ensuing action from just outside the restaurant. Hegner lingered and observed as the restaurant's sole busser picked up a fire extinguisher and sprayed the coats. McFadden also poured water on one of the coats, apparently Wipperfurth's. [*2]
The Fire Department arrived, apparently after the fire had been extinguished. No one was injured by the fire. The restaurant's interior was undamaged.
Hegner never recovered her coat. Hegner testified that she paid $1338.43 for the coat. A small pouch and a pair of gloves were in the coat. Hegner lost these items as well, except for one of the gloves which she recovered from the floor and produced at trial. The glove was distressed and smelled of smoke. Hegner provided receipts that reflected that she paid a total of $1116.26 for the pouch and gloves.
Wipperfurth was given her coat by restaurant staff. It was badly damaged. One of the witnesses described its singed and striated lining as looking like a "Clyfford Still painting," which was not a compliment. Wipperfurth testified that the coat, a gift, cost € 1300 in 2003. On cross-examination she produced an estimate from a dry cleaner that repair of the coat would cost $1010.95. Wipperfurth stated that this estimate was speculative and that it was unclear whether it was possible to repair the coat. Wipperfurth did not bring the coat to trial, but offered photographs instead.
No witness saw the cause of the fire. No one saw a candle on top of the cabinet under the coats. Isabel Jacobi, one of the plaintiffs' dining companions, testified that after the fire was extinguished she saw an unlit votive candle inside the cabinet on the second shelf from the top. She testified that the interior of the cabinet was undamaged. Jacobi stated that the coats were long enough to reach from the hook to the open portion of the cabinet. McFadden testified that "sometimes" a lit candle is placed on the cabinet under the hook, though she did not believe that there was a lit candle on the cabinet that evening. Jack Abramcyk, the bartender that evening and the brother of one of the restaurant's principals, testified that the restaurant "never" places candles on the cabinet. Jacobi admitted that she would not have hung her coat on the hook had she noticed a votive candle on the cabinet.
The certified Fire Department report, which was received in evidence, states in relevant part:
On Friday, November 23, 2007 at 19:33 hours the following units were dispatched to a report
of a building fire. Units found a patrons coat had caught on fire by a candle in Smith and Mills
The report does not state what evidence formed the basis for the conclusion that a candle caused the fire.
Hegner smoked a cigarette on the way to the restaurant. She testified that she used a lighter
to light the cigarette. Lit cigarettes are of course prohibited in restaurants in New York City.
The only definitive statement of the cause of the fire is contained in the Fire Department's report. In a non-Small Claims Court trial, the Fire Department's report would be admissible as a public record, but the report's conclusion that the fire was caused by a candle would have to be excluded in the absence of some evidence of how this conclusion was reached. (See Zohar v 1014 Sixth Avenue Realty Corp., 24 AD3d 125.) In a Small Claims case hearsay is admissible. (E.g Forte v Westchester Hills Golf Club, Inc., 103 Misc 2d 621, 622-3.) While the court is not constrained to credit hearsay in a Small Claims action, the Fire Department's conclusion is certainly plausible based on the facts adduced at trial, and it carries the imprimatur of the public [*3]agency charged with investigating the causes of fires.
There was no evidence that the plaintiffs placed their coats near a visible, lit candle, nor moved a lit candle near their own coats. The bare fact that Hegner smoked a cigarette while walking to the restaurant does not permit the inference that her coat somehow harbored a spark from her cigarette that led to the fire in the restaurant. Moreover, there is no evidence that any other patron of the restaurant that evening had anything to do with igniting plaintiffs' coats. The restaurant's small size increases the likelihood that any suspicious activity by another patron near the plaintiffs' coats would have been noticed.
The absence of such evidence of any fault by plaintiffs or the restaurant's other patrons, in conjunction with the Fire Department's conclusion that the fire was caused by a candle, bolsters the conclusion that the cause of the fire was the restaurant staff's negligent placement of a lit candle near where the plaintiffs hung their coats.
This direct evidence, coupled with the circumstantial evidence discussed below, compels a verdict for plaintiffs.
Where the actual or specific cause of an accident is unknown, the doctrine of res ipsa loquitur allows an inference of negligence merely from the happening of an event and the defendant's relation to the incident. (Kambat v St. Francis Hospital, 89 NY2d 489.) For the inference to be drawn three elements must be present:
(1) the accident must be of a kind that ordinarily does not occur in the absence of negligence;
(2) the instrumentality or agency causing the accident must be in the exclusive control of the
defendants; and (3) the accident must not be due to any voluntary action or contribution by
(Pappalardo v New York Health and Racquet Club, 279 AD2d 134, 142.) The element of "exclusive control" is not rigidly applied by courts. Rather, a prima facie case can be made out where evidence of possession and control is such that the possibility that the incident was caused by someone else is so remote that it is fair to conclude that the defendant is the negligent party. (See Durso v Wal-Mart Stores Inc., 270 AD2d 877; Finocchio v Crest Hollow Club at Woodbury, Inc., 184 AD2d 491.)
All three elements necessary to draw an inference under the doctrine of res ipsa loquitor are present herein.
Coats do not spontaneously combust, at least in temperatures congenial to humans. There was no evidence that the plaintiffs failed to take due care of their coats. Rather, the evidence was that they placed the coats as directed by restaurant staff. The restaurant had control of the coat hooks and the numerous votive candles placed around the restaurant. That the coats caught fire when placed as directed by restaurant staff is evidence of negligence. Finally, the Fire Department concluded that a candle caused the fire. Based on all the evidence at trial, it seems to this court more likely than not that the cause of the fire was a votive candle placed by restaurant staff near where plaintiffs hung their coats.
The court finds that plaintiffs' testimony was credible on the issue of the value of their
damaged property. Accordingly, the court directs that judgment in favor of Hegner and against
defendant be entered in the amount of $2454.69. The court finds that Wipperfurth is entitled to
the amount reflected in the estimate for the repair of her coat. The coat's absence at trial deprived
defendant and the court of the opportunity to inspect the coat and evaluate whether it was
irreparably damaged. Accordingly the court directs the clerk to enter judgment in favor of [*4]Wipperfurth and against defendant in the amount of $1010.95. This
constitutes the decision and order of the court.
Dated: June 2, 2008
Peter H. Moulton, C.C.J.