BARRISTER FARM, LLC v. UPSON DOWNS FARM, INC.
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RENDERED:
FEBRUARY 10, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002651-MR
BARRISTER FARM, LLC
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 01-CI-00791
v.
UPSON DOWNS FARM, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; HENRY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Barrister Farm, LLC, appeals a summary
judgment of the Oldham Circuit Court in favor of Upson Downs
Farm, Inc., pursuant to a negligence action resulting from a
barn fire in which three of Barrister’s horses were killed.
We
affirm.
Upson Downs Farms, Inc. (“Upson Downs”) was the
boarder of three thoroughbred horses owned by Barrister Farm,
LLC (“Barrister”), a Hollie Collie 1999 filly, a Rose Tiara 1999
filly, and a One Ameri 2000 colt.
Shortly after 1:00 a.m. on
December 27, 2000, a local police officer observed a barn on
fire on the Upson Downs property, located in Oldham County,
Kentucky, and alerted the North Oldham Fire Department.
The
fire department received the alarm for the barn fire at 1:10
a.m. and arrived on the scene at 1:22 a.m.
The fire department
incident report states that the horse barn was fully involved
with fire.
The perimeter was contained, and the hay in the
center of the barn was allowed to burn.
Sadly, seven horses
died in the fire, including Barrister’s three horses.
The fire department contacted the Oldham County Police
Department (OCPD) fire investigator.
fire personnel were conducted.
Interviews with farm and
The scene was examined and the
remains of the barn structure were photographed.
indication of arson.
There was no
The resulting OCPD fire investigation
report, as did the North Oldham Fire Department incident report,
classified the cause of the fire as “undetermined”.1
On December 28, 2000, a study to determine the origin
and cause of the barn fire was begun by Donan Engineering Co.,
Inc., at the request of Upson Downs’ insurer, Chubb Group of
Insurance Companies.
The investigation was conducted by two
certified fire investigators, and numerous photographs were
taken of the scene pursuant to the investigation.
1
The OCPD report also indicates that weather did not appear to be a cause.
-2-
In a letter/fax correspondence dated December 29,
2000, Barrister’s owner, Frank Csapo, wrote to Upson Downs
requesting copies of the Fire Marshall’s and independent
investigator’s reports and requesting that Upson Downs preserve
the fire site until Barrister had a chance to review the reports
and possibly send out its own investigators.
In a letter dated
December 31, 2000, Alex Rankin, the owner of Upson Downs Farm,
informed Csapo that the site had been cleared the day his letter
was received (December 29) but that it had been photographed and
videotaped for the investigation.
The letter explained that
“the site becomes compromised after several days not to mention
the need to deal with the remains of the horses in a respectful
manner.”
Donan Engineering issued a report, dated January 10,
2001 (hereinafter, the “Donan Report”), setting forth its
findings and conclusions as to the cause of the barn fire.
The
Donan Report indicated that at the time of the fire, Corrigan
Electric Company was in the process of inspecting and repairing
Upson Downs’ various barns’ electrical systems.
At issue in
this case, in the subject barn, Corrigan had found straw and
dust in electrical receptacles, and a problem with hay breaking
electric lighting globes when thrown from the hayloft; however,
these problems were remedied by Corrigan prior to the fire.
Also at issue, the report noted evidence was found consistent
-3-
with spontaneous combustion of hay but concluded that the age of
the hay which had been stored in the barn was outside the
timeframe for the normal occurrence of spontaneous combustion.
The report analyzed various other possible causes of the fire as
well.
The report ultimately concluded the cause of the fire as
“unknown”, based on the facts that no direct cause of the fire
was found, and that no competent source of ignition was
identified.
On December 21, 2001, Barrister filed suit in Oldham
Circuit Court seeking damages for the loss of its three horses.
On September 26, 2002, Upson Downs filed a motion for summary
judgment on the grounds that Barrister could not prove
negligence on the part of Upson Downs as required by KRS
422.280.2
On November 18, 2002, Barrister filed a motion for
2
KRS 422.280, specific to boarding of horses, provides an exception to the
general rule that damage to bailed property which was delivered in good
condition creates a rebuttable presumption of negligence on the part of the
bailee. See Threlkeld v. Breaux Ballard, Inc., 296 Ky. 344, 177 S.W.2d 157
(1944). KRS 422.280, “Liability for damage to or loss of boarded horses –
Negligence not presumed”, provides:
(1)
As used in this section:
(a) The term “boarder” means one who holds out
his land, barn or related facilities to
others for compensation, by which is
meant compensation in any manner, whether
money or otherwise, for the custody,
care, breeding or selling of horses;
(b) The term “owner” means one who has
contracted with the boarder for the
custody, care, breeding or selling of
horses.
(2)
The owner shall be liable for damages to or loss
of the horse while in the custody of the
boarder except for that damage or loss due to
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summary judgment on grounds that Upson Downs’ destruction of the
fire site, which precluded Barrister from conducting its own
investigation, constituted spoliation of evidence.
Barrister
argued that this spoliation shifted the burden onto the
spoliator, Upson Downs, to prove that it was not negligent, and
that Upson Downs would be unable to establish adequate proof
thereof.
In an order entered December 11, 2002, the trial court
denied Barrister’s motion for summary judgment based on
spoliation, finding that the removal or destruction of evidence
was unintentional or satisfactorily explained.
In the same
order, the court reserved ruling on Upson Downs’ motion for
summary judgment, and granted Barrister additional time in which
to further its theories of negligence.
On August 16, 2004, Upson Downs renewed its motion for
summary judgment, contending that in the additional time granted
by the court, Barrister had failed to produce any evidence of
negligence.
In a response filed September 14, 2004, Barrister
provided an affidavit from G. Lynn Nobles, a certified fire
investigator, who had been contacted by Barrister to perform an
investigation of the barn fire.
The affidavit stated that
the negligence of the boarder, his agent or
employees. Evidence that the owner delivered
horses to the boarder and that the horses were
damaged or lost while in the care and custody
of the boarder shall not be sufficient to
create a presumption of negligence on the part
of the boarder, or a prima facie case in favor
of the owner.
-5-
Nobles would testify that spontaneous combustion of hay is a
known danger in the horse industry, that hay is a highly
flammable substance, and that hay getting into electric lighting
bins in a barn could cause a highly dangerous condition.
The
Nobles affidavit stated that in a situation such as this, he
“would normally closely investigate the fire scene and the
burned structure and remains, take up-close and detailed photos,
and talk to all witnesses or individuals with detailed knowledge
about the burned premises” but that in this case there was no
fire scene or burned structure to observe.
The affidavit stated
that the lack of tangible or visual evidence left Nobles “unable
to render a conclusive opinion regarding the causation of the
fire.”3
In an order entered December 16, 2004, the trial court
granted Upson Downs’ motion for summary judgment, from which
order Barrister appeals to this Court.
SPOLIATION OF EVIDENCE
We first address Barrister’s argument that Upson
Downs’ clearing of the fire site, which precluded Barrister from
conducting its own investigation, constituted spoliation of
evidence.
Barrister contends that, per Welsh v. United States,
844 F.2d 1239 (6th Cir. 1988), this spoliation shifted the burden
3
The Nobles affidavit indicated that he had been provided the Donan Report,
a video of the fire aftermath taken by Upson Downs, and a few photographs
taken by Upson Downs which he described as unclear.
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to the spoliator, Upson Downs, to disprove negligence.
In its
December 11, 2002, order, denying Barrister’s motion for summary
judgment, the trial court found as to the issue of spoliation:
Regarding the shifting of the burden of
proof due to the spoliation of evidence,
both parties rely upon Welsh v. United
States, 844 F.2d 1239 (6th cir. 1988). This
Court has reviewed the Welsh case and finds
it distinguishable from the case at bar. In
Welsh, the Court found the spoliators were
negligent in their handling of evidence.
The negligence arose because the evidence
was not handled in the way the hospital’s
policies and procedures mandated it be
handled. In the case before this Court,
there is no showing that the clearing of the
debris left from the fire was done so
negligently or with the intent of hiding
something. Additionally, Defendant’s [sic]
preserved evidence by having the sight [sic]
video tapped [sic], photographed, and
investigated by an engineering company.
Hence, the Court finds the removal or
destruction of evidence in this matter
unintentional or satisfactorily explained.
Spoliation refers to a party’s deliberate destruction
of evidence.
1997).
Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky.
In the present case, there is no evidence to suggest
that Upson Downs was negligent in clearing the fire site, that
it did so with the intent of hiding evidence, or that the site
was cleared after Csapo’s request for preservation was received.
The site was investigated, photographed, and videotaped before
it was cleared.
Barrister claims that the investigation by
Donan Engineering was biased in that it was initiated by Upson
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Downs’ insurer.
However, in addition to Donan, the site had
also been investigated and photographed by the Oldham County
Police Department fire investigators, as to whom no bias is
suggested.
All reports and photographs were made available to
Barrister.
Further, it was not unreasonable that the remains of
the seven deceased horses needed to be removed expeditiously.
Accordingly, we conclude that Upson Downs’ clearing of the fire
site did not constitute spoliation of evidence.4
NEGLIGENCE
Barrister further contends that Upson Downs is liable
to Barrister under a straight negligence application.
A
negligence action requires proof of the following four elements:
duty, breach of duty, causal connection between the conduct and
the resulting injury, and actual loss or damage.
Mapother and
Mapother, P.S.C. v. Douglas, 750 S.W.2d 430, 431 (Ky. 1988).
It is undisputed that Upson Downs’ accepting the
horses for boarding created a duty.
Barrister contends Upson
Downs breached its duty of care by keeping the horses in a barn
with known fire hazards, as evidenced by the Donan Report, which
provided, in pertinent part, as follows:5
4
Having concluded that Upson Downs’ clearing of the fire site did not
constitute spoliation of evidence, we need not address Upson Downs’ argument
that Monsanto (“missing evidence” instructions), not Welsh (burden-shifting),
is the law in Kentucky as to the appropriate remedy for spoliation.
5
The “Mr. Valentine” referred to in the report is Upson Downs’ farm manager,
Ed Valentine.
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The barn was built in 1993, and
supplied with electricity. No natural gas
or propane was used. Mr. Valentine relayed
that the farm boards horses and that seven
were lost to the fire. There was evidence
of their remains during the site visit.
Mr. Valentine also relayed that
Corrigan Electric Company was in the process
of inspecting and repairing various barn’s
electrical systems at the time of the fire.
As a result, Mr. Brandon Gentry, an
electrician associated with Corrigan was
interviewed via telephone to determine the
extent of their work.
Mr. Gentry relayed that their tasks
were initially to inspect the barns and
conduct routine repairs. However, in the
subject barn, Barn 5, they found deposits of
straw and dust in the receptacle and light
switch boxes. As a result, they were asked
to replace all the light switches and
receptacles with weather-tight units to
prevent dust and debris from entering. In
addition, all lights serving the individual
stalls were relocated higher because they
were being damaged when hay was thrown from
the loft. In the process about half of the
fixtures were removed.
Two Ground Fault Interrupter (GFI)
breakers were added to protect the
receptacle circuits. In addition, a 500watt halogen light was installed on the west
end of the barn. Mr. Gentry relayed that
all wiring was encased in rigid metal
conduit.
According to Valentine, the layout of
the barn and original placement of the
illumination lights caused a number of
globes to be broken when hay was thrown from
the second floor loft. Corrigan was asked
to move the lights up higher on the supports
to prevent this damage. Valentine said that
each stall had a switch and receptacle. The
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switch controlled the stall lighting and the
receptacle was used to supply current to
cooling fans in the summer.
Valentine said that no lights were on
at the time of the fire, neither interior
nor exterior illumination. The only
electrical appliance in use was an oilfilled, electric heater and a 5-gallon hot
water heater located in the tack room. The
heater was used only to keep water pipes
from freezing.
As noted above, almost all combustible
materials had been consumed at the time of
the site visit. The prominent remains of
the barn included tin sheets used for the
roof and support posts []. Some of a wooden
sidewall remained along the north side of
the barn [].
Various causes of the fire were
considered. The area of the tack room and
the oil-filled electric heater and water
heaters were studied for their possible
contributions []. Studying the two
appliances did not reveal excessive
electrical arcing or other evidence, which
would have suggested the fire occurred in
the tack room. In addition, the presence of
combustible items, such as hay and wooden
supports in this area, while consumed in
other areas, did not indicate that the fire
began in this area.
The electrical distribution panelboard,
reported to have a 200 ampere capacity, was
located on the east end of the barn. At the
time of the site visit, it had been moved
several feet away and was essentially empty
[]. The electrical service entrance, meter
base and distribution area are all on the
east end of the barn. These items were
identified, but there was no evidence that
they were the cause of the fire [].
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Since the electrical system had
undergone renovations, it was considered as
a possible ignition source. However, due to
the amount of burning, most wiring was
broken at the conduit joints and other
sections were simply consumed. There was no
evidence at the service entrance of a high
current demand, or heavy arcing.
Due to the complete nature of the burn,
the area of greatest damage was estimated to
be near the center of the east half of the
barn. This observation was based on the
complete burn of the support posts although
Mr. Valentine relayed that some consumption
of the remaining posts continued after the
fire department’s initial response. In
addition, the metal mesh stall doors were
buckled in this area. Buckling suggests
that the fire consumed the loft floor
supports and transferred the weight to the
doors. In all, two doors, one on each side
of the barn (north and south) were buckled,
while the remaining doors lay essentially
flat on the ground [].
The barn storage loft contained bedding
straw on the east end and forage hay on the
west end. There were some identifiable
remains of the straw in the form of semiburned yellow strands []. By contrast all
of the hay was consumed. The hay storage
section of the barn consisted of a white ash
with some identifiable blackened strands of
hay []. While studying this area, numerous
“clinkers” or hard cinder-like objects were
noted which are believed to be a by-product
of spontaneous combustion [].
However, Valentine relayed that the hay
had been grown in Indiana and purchased
routinely from the same supplier. Since the
fire occurred in December, the hay would
have probably been cut and cured some months
previously. Normally fires from spontaneous
combustion occur with [sic] a few weeks
following initial cutting.
-11-
In summary, based on the facts known at
this time and pending any further study, we
are of the opinion that:
The origin of the fire is in the
central, east half of the barn. This
is based on the following facts:
1.
The burn patterns in this
area of the structure.
2.
Damage to the stall doors in
this area.
The cause of the fire is unknown.
is based on the following facts:
1.
No direct cause of the fire
was found.
2.
This
No competent source of
ignition was identified.
The classification of the cause of the
fire is Undetermined as defined by the
attachment to this report. This is
based on the following facts:
1.
The ignition source is not
conclusive.
Barrister contends that the report contains strong
evidence of negligence on the part of Upson Downs, in particular
that hay, a highly flammable substance, was known to be entering
electrical boxes and breaking coverings on electrical lighting
globes.
Additionally, Barrister contends that the presence of
“clinkers”, consistent with spontaneous combustion, shows that
hay was being improperly stored.
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Summary judgment is proper only where the trial court,
drawing all factual inferences in favor of the non-moving party,
can conclude that there are no issues as to any material fact
and that the moving party is entitled to judgment as a matter of
law.
Fischer v. Jeffries, 697 S.W.2d 159, 160 (Ky.App. 1985).
Summary judgment should only be used to terminate litigation
when, as a matter of law, it appears that it would be impossible
for the respondent to produce evidence at the trial warranting a
judgment in his favor and against the movant.
Steelvest, Inc.
v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991).
Barrister contends that a reasonable jury could easily
find that the hay caused the fire by spontaneous combustion or
by its repeated contacts with the electrical apparatuses in the
barn.
Barrister contends that the potential fire hazards noted
in the barn, the evidence of spontaneous combustion in the hay
storage loft, Upson Downs’ continued storage of the horses
despite the knowledge of potential fire hazards, along with
Upson Downs’ destruction of the fire site, creates a genuine
issue of material fact under which a jury could reasonably
conclude that the fire was caused by the negligence of Upson
Downs.
In addition to the Donan Report, the record includes
the affidavit of Tom Corrigan, a master electrician and owner of
Corrigan Electric Co., Inc.
Corrigan Electric was hired by
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Upson Downs in 2000 to perform repairs on the farm’s horse barns
in order to make them safer.
The affidavit provides that Tom
Corrigan has been in the electric business for 35 years and that
Corrigan Electric regularly performs work on horse barns.
The
affidavit lists the electrical work performed on the barn at
issue, which included installing dust-tight covers on the
electrical fixtures, and indicates that the work was performed
from November 20, 2000, to December 20, 2000.
The affidavit
states that at the time of the fire on December 27, 2000, all
necessary electrical repairs in the barn had been completed and
all electrical installation had been per National Electrical
Code.
With regard to the issue of improper hay storage
causing spontaneous combustion to occur (as evidenced by the
“clinkers”), the record also contains the affidavit of Alex
Rankin.
The affidavit states that at the time of the fire,
there were two types of hay housed in the barn, timothy grass
and bluegrass.
The timothy grass hay had been placed in the
barn on December 6, 2000.
The hay was from a supplier well
known to Rankin, and the hay was baled during the spring or
summer of 2000 and was housed until sold to Upson Downs.
The
bluegrass hay was cut and baled on the Upson Downs’ farm no
later than July 1, 2000.
The affidavit provides that Rankin is
familiar with horse industry standards for storing hay in barns
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housing horses, that there is no industry standard that
prohibits the storage of hay in barns housing horses, and that
Keeneland and Churchill Downs store hay in barns housing horses.
In its December 16, 2004, order granting summary
judgment in favor of Upson Downs, the trial court found:
There are no facts that support that
hay was improperly stored in the barn at
Upson Downs Farm, Inc. Nowhere in any of
the articles cited by the Plaintiff nor in
the affidavit of G. Lynn Nobles is there any
statement that it is a deviation from the
standard in the horse industry to store hay
in horse barns. Furthermore, there is no
proof that a reasonably, prudent and careful
person having similar knowledge and
experience would store the hay in a
different manner. In fact, hay is stored in
the barns at Churchill Downs in Louisville,
Kentucky, and in the barns at the Keeneland
Race Course. In addition, the farm the
plaintiff’s horses were boarded at previous
to Upson Downs, Triple R Farms, stored hay
in the barn. Furthermore, as hay is feed
and bedding for horses it would seem
impossible to completely eliminate hay from
the barn and never have this combustible
substance in a horse barn.
There are no facts that support that
improperly cured hay was stored in the barn.
Normally fires from spontaneous combustion
occur within a few weeks following the
initial cutting. The hay was older than a
few weeks and therefore, was out of the
timeframe of spontaneous combustion.
There are no facts that support that
Upson Downs had not taken precautions
against hay getting into the light switch
boxes or that there were known dangers that
had not been repaired in the electrical
system. Upson Downs Farm had recently
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undertaken several electrical
improvements/repairs to make the barn safer
including changing all of the light switch
receptacles, adding dust-tight covers, and
all of the electrical improvements/repairs
had been completed prior to the fire by
Corrigan Electric Company.
The trial court concluded that there was no genuine issue as to
a material fact, and, therefore, summary judgment was
appropriate.
Having thoroughly reviewed the record, we can add
little to the trial court’s thorough and well-reasoned analysis
above, and adopt its reasoning as our own.
As the trial court
correctly found, all of the electrical fire hazards cited by
Barrister as evidence of negligence had been corrected by Upson
Downs prior to the occurrence of the fire.
Also, while the
presence of “clinkers” is evidence of spontaneous combustion,
clinkers per se are not evidence of improper hay storage or
evidence of negligence by the barn owner.
of improper hay storage.
There was no evidence
Accordingly, we conclude the trial
court correctly found that no genuine issue of material fact
existed and that summary judgment in favor of Upson Downs was
proper.
RES IPSA LOQUITUR
We finally address Barrister’s argument that the
majority of barn fires do not occur absent some form of
negligence, and, therefore, under the circumstances of this
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case, a presumption of negligence on the part of Upson Downs is
created under the doctrine of res ipsa loquitur.6
The
requirements for invoking the res ipsa loquitur doctrine are as
follows:
(1) The defendant must have had full management of the
instrumentality which caused the injury; (2) the circumstances
must be such that, according to common knowledge and the
experience of mankind, the accident could not have happened if
those having control and management had not been negligent; and
(3) the plaintiff’s injury must have resulted from the accident.
Vernon v. Gentry, 334 S.W.2d 266, 268 (Ky. 1960), citing Cox v.
Wilson, 267 S.W.2d 83 (Ky. 1954).
We need not reach the parties’ argument as to what
constitutes the instrumentality in this case because the second
prong is not satisfied.
Cox instructs that in considering the
second prong, “it is the court’s duty judicially to notice
whether as a matter of common experience the accident could not
have happened without dereliction in duty on the part of the
person charged with the management and operation of the thing.”
Cox, 267 S.W.2d at 84.7
We cannot say that a barn fire, such as
6
Per Barrister’s argument that “[h]orse barns simply do not go up in flames
absent some form of negligence. Acts of God are few and far between and
there seems to be no abundance of barn arsonists[]”, we acknowledge that, per
the Oldham County Police Department fire investigation report, there was no
evidence that the barn fire was caused by weather or arson.
7
In Cox, a tire on a school bus blew out, for an unknown reason, causing the
bus to run off the road, injuring its occupants. The road was paved, and not
rough or uneven. Similar to the present case, no breach of duty could be
shown on the part of the bus owner/operator – the tires were well within
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occurred under the circumstances of this case, could not occur
but for negligence on the part of the barn owner/manager, here,
Upson Downs.
Accordingly, we conclude the doctrine of res ipsa
loquitur is not applicable under the facts of this case.
Although the cause of this tragic fire was not determined,
“[t]he fact that some mystery accompanies an accident does not
justify the application of the doctrine of res ipsa loquitur.”
Id.
For the aforementioned reasons, the order of the
Oldham Circuit Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Jason C. Vaughn
Louisville, Kentucky
Bixler W. Howland
Louisville, Kentucky
their life expectancy, and had been inspected by competent persons before the
trip. The Cox court rejected the argument that the doctrine of res ipsa
loquitur applied, as “it cannot accurately be said that ordinarily under
similar conditions a tire will not blow out without negligence on the part of
the operator of the car.” Cox, 267 S.W.2d at 85. “A lack of knowledge as to
the cause of the accident does not call for the application of the doctrine.
The separate circumstances of each case must be considered . . . .” Id. at
84.
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