Opinion
No. CV 02 0087327S
March 8, 2004
MEMORANDUM OF DECISION
This motion for summary judgment (#116) filed by the defendant, Klebe Fuel Company, Inc., is addressed to the Revised Complaint dated May 26, 2003 filed by the plaintiffs, Osmund Leviness (Leviness) and Covenant Insurance Company (Covenant). The motion must be denied.
Leviness owned a home in Colebrook (the premises) which was destroyed by fire on March 14, 2000. Leviness claims to have been injured during the fire. Covenant insured the premises and paid for repairs and replacement of personal property. On the day of the fire the defendant was engaged in installing a new heating system in the basement of the premises. An employee of the defendant had been using an open-flame soldering torch in the basement within 15 minutes before the fire was discovered. The plaintiffs allege that the torch was the origin of the fire.
The Revised Complaint is in three counts: negligence, breach of contract, and violation of CUTPA. The defendant moves for summary judgment on the grounds that: 1) there is no evidence that the defendant performed substandard work or was otherwise negligent, 2) that the actions of Leviness constitute an intervening act, and 3) there is no causal connection between the alleged acts of unfair trade practice and the fire. Each ground must be discussed separately.
1. Negligence
The defendant claims that the plaintiffs have been unable to find any material facts to prove that negligence of the defendant's employee was the cause of the fire. I disagree. The plaintiffs have disclosed an expert witness who is prepared to testify that the use of the torch in the basement by the defendant's employee was the cause of the fire. Experts have been used in several recent cases to determine the causes of fires. See e.g., New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89 (1998); State v. Salz, 226 Conn. 20 (1993); State v. Gray, 221 Conn. 713 (1992). The experts in these cases used a method of eliminating potential causes in order to arrive at an opinion as to the actual cause. The proposed expert in this case appears to use the same method. Although his report contains some conclusions which could be the subject of probing cross examination, it is sufficient to create a genuine issue of material fact as to the cause of the fire. The same is true of the negligence issue.
Once the torch is identified as the cause of the fire, it raises a genuine issue of material fact as to negligence. If a plumber using a soldering torch starts a fire which destroys a house, is it a reasonable inference that the plumber was negligent? In State v. Salz, 226 Conn. 20 (1993), the jury was permitted to draw the reasonable inference that an electrician was guilty of manslaughter in the second degree for the improper wiring of an electrical heater in a neighbor's house. Here, we are dealing with mere negligence rather than responsibility. "Issues of negligence are ordinarily not susceptible of summary adjudication hut should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446 (1984). Summary judgment is particularly "ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434 (1975).
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). Viewing the evidence most favorably to the plaintiff, there are genuine material facts in dispute as the cause of the fire and the defendant's responsibility for it.
2. Intervening Act
Once Leviness became aware of the fire he grabbed a fire extinguisher and ran up to the second floor to try to fight the fire. He did this even though he did not believe that he could put the fire out alone. It was while he was on the second floor that he suffered the smoke inhalation which is the subject of his claim for damages. The defendant claims that Leviness' behavior is an intervening act which relieves the defendant of liability. In support of this position the defendant cites Medcalf v. Washington Heights Condominium Assn, Inc., 57 Conn. App. 12, cert. denied, 253 Conn. 932 (2000). "In issues involving proximate cause analysis, [the] court has held that an intervening intentional . . . act relieves a negligent defendant of liability, except where the harm caused by the intervening act is within the scope of the risk created by the defendant's conduct or where the intervening act is reasonably foreseeable . . . As a general rule, the act of a third person in committing an intentional act . . . is a superceding cause of harm of another resulting therefrom . . . In such a situation, the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him." Id. 17.
In this case there is a genuine issue of material fact as to whether Leviness' action were, in fact, an intentional intervening cause, or were reasonably foreseeable in light of the fire which was engulfing his house. This is an issue for the jury, not the court on a summary judgment motion.
3. CUTPA
The plaintiffs also allege a CUTPA count that the defendant corporation failed to obtain a building permit for the work to be performed and failed to register its trade name with the town. The arguments made by defendant are essentially the same as those made in support of its prior motion to strike which was denied by the court (DiPentima, J.) on January 13, 2003. That issue will not be revisited at this time.
BY THE COURT,
John W. Pickard