Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed, Super. Ct. No. 04CC10686
Law Offices of Brian J. Ferber, Brian J. Ferber and Jeffrey Keith Jayson; Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon, for Plaintiff and Appellant.
David C. Skyer for Defendants and Respondents.
OPINION
O’LEARY, J.
United States Fire Insurance Company (U.S. Fire), an apartment lessor’s insurer, appeals from a judgment following a bench trial denying its subrogation claim against the lessees for fire damages it contends were caused by the negligence of the lessees or their overnight guest. The fire began either in, on, or near a 32-year-old in-wall furnace located on an interior wall of the apartment. The lessees’ couch was placed against the same wall near the side of the furnace. There was no evidence the furnace was running on the morning of the fire. U.S. Fire presented evidence there was no mechanical failure in the furnace. Therefore, it contended the trial court should apply the doctrine of res ipsa loquitur and conclude the fire was most likely caused by an instrumentality solely within the lessees’ control, namely either: (1) a couch (or other combustible material such as a child’s toy) being placed too close to the furnace; or (2) a carelessly discarded cigarette. The lessees presented evidence the fire began within the interior of the wall, between the wall studs where the furnace was located. Accordingly, the trial court concluded the presumptive effect of the res ipsa loquitur doctrine did not apply and U.S. Fire had otherwise not established the lessees’ negligence.
On appeal, U.S. Fire contends: (1) the trial court erred by denying it the negligence presumption of the res ipsa loquitur doctrine; (2) there is no substantial evidence supporting the theory the fire started within the interior of the wall; and (3) it was improperly deprived of the opportunity to impeach one of the lessees. We find no merit to any of its contentions and affirm the judgment.
FACTS
On March 1, 2004, Hani Alfidail and his wife, Alia Elrawshdeh (sometimes collectively referred to as the defendants), leased a one-bedroom apartment in a complex in Garden Grove, where they lived with their two-year-old daughter. The lease required them to indemnify the building owners for losses resulting from their own “act[s] or omission[s]” or those of “any person on the [p]remises through or under [them] . . . .” Occasionally, Alfidail’s brother, Hamad Alfidail (Hamad) spent the night and would sleep on the floor in the living room.
Alfidail and Elrawshdeh were both cigarette smokers, but both testified at trial they “never” smoked inside the apartment because of their young child. (Although in his deposition Alfidail said he “usually” smoked outside.) Apparently, in a statement to investigators after the fire, Hamad said he too was a smoker, but was not smoking the morning of the fire.
The apartment was heated by a 32-year-old gas in-wall heater located in the living room. The installation and operating manual for the furnace warned combustibles should not be located “on or near [the] furnace” and should be kept 18 inches away. There was no evidence the defendants were given the manual, or given warnings or directions by the building’s management concerning clearances between the furnace and combustibles. Because the building’s units were sometimes rented through government subsidized programs, they were occasionally inspected by housing officials from the cities of Garden Grove and Santa Ana. The defendants’ unit had last been inspected in 2001, and no problems with the furnace were noted in the inspection report.
The defendants’ couch was placed on the same wall in the living room as the furnace. At trial (using her hands to estimate the distances), Elrawshdeh testified the couch was 18 to 24 inches away from the side of the furnace. In her deposition (and possibly in statements to fire investigators at the time of the fire), she indicated the couch was closer—maybe as close as six inches from the side of the furnace.
Right after moving in, Alfidail and Elrawshdeh noticed a gas odor in the apartment, which Alfidail suspected was coming from the furnace. They reported the problem to the building management, and it was taken care of (although they were never given any indication as to what the problem had been). Subsequently, Alfidail and Elrawshdeh noticed the furnace was making an unusual clicking sound. They reported that problem too, but were told the noise was normal. Elrawshdeh testified the heater was set on an automatic thermostat and she recalled it only coming on once the entire time they lived there.
On April 21, 2004, Alfidail went out for the night drinking with friends. Elrawshdeh described the day as having been very hot and the night as warm. At some point, Hamad came over and went to sleep on the living room floor in front of the couch. Alfidail returned home between 4:00 a.m. and 5:00 a.m. on April 22. He and Elrawshdeh had an argument. Alfidail went outside, smoked a cigarette, then came back inside, and went to bed in the bedroom.
Around daybreak, Elrawshdeh was awakened by a fire alarm. She went into the living room and saw flames coming from the side of the furnace, in the area between the furnace and the couch. At trial, Elrawshdeh testified the couch was not on fire when she first ran into the living room, although in prior statements she indicated she saw flames on the corner of the couch nearest to the furnace as well. Elrawshdeh yelled “fire,” ran back into the bedroom, woke Alfidail, grabbed her daughter, and they fled the burning apartment. Alfidail roused Hamad, who was on the floor in front of the couch, and he got out as well. Alfidail also testified vaguely that there were flames around the furnace, but either the couch was not on fire or he could not recall seeing flames on the couch. The fire department arrived and eventually put out the blaze. The defendants’ unit was destroyed, and all other units in the building were badly damaged.
U.S. Fire, which insured the building, paid for the damage to the building and commenced this subrogation action against Alfidail and Elrawshdeh. Its complaint pled causes of action for negligence, nuisance, and breach of contract, but the nuisance cause of action was withdrawn prior to trial.
At trial, U.S. Fire largely relied on the doctrine of res ipsa loquitur to establish the defendants’ negligence. The defendants’ primary theory was the fire resulted from “pyrolysis”—a chemical breakdown of the fibers of the wood around the furnace due to decades of exposure to heat that eventually allows the wood to ignite at very low temperatures. The gist of U.S. Fire’s case was to attempt to show the fire was not caused by pyrolysis or a furnace malfunction and, therefore, must have been the result of a negligent act of the defendants—either placing combustible materials too close to the furnace, or a negligently discarded cigarette.
U.S. Fire presented two expert witnesses. Ramaswami Vasudevan, a forensic engineer, opined the fire started outside the wall in front of the furnace. He tested the furnace itself and found no internal failures or defects. He opined the wall heater did not cause the fire and there was no evidence supporting the pyrolysis theory. Vasudevan believed if a couch or other combustible object was placed within two or three inches of the furnace while it was operating, the object would ignite. Vasudevan was not asked to determine the fire’s point of origin, nor was he asked to determine if the furnace had in fact been turned on at the time of the fire.
William Schultheis was a certified fire investigator hired by U.S. Fire to inspect the premises a few days after the fire. He also opined the fire was not caused by pyrolysis or a furnace malfunction, and had ruled other possible causes such as arson, weather, electrical wiring malfunction, or lighting occurrence. Therefore, Schultheis believed the fire most likely resulted from either combustible materials being placed too close to the furnace or from a dropped cigarette.
Schultheis explained the National Fire Protection Association standards for fire prevention and protection (often adopted by local governments) specify combustibles should be at least 18 inches away from an open flame gas appliance. He was aware of prior statements by Elrawshdeh, suggesting the couch was about six inches away from the side of the furnace, which would place the overhang of the couch’s arm at one or two inches away, which was essentially right in front of the heater. Schultheis was also aware Alfidail and Elrawshdeh made statements after the fire indicating they had seen flame on the corner of the couch itself. Schultheis testified that for the couch or other combustibles to have ignited due to being too close to the furnace, the furnace would have had to have been running for many hours. He had no information the furnace was on and was never asked to determine whether it had been on. If the furnace was not turned on, proximity of combustibles to the furnace could not have caused the fire. Thus, the only other possible cause was “carelessly discarded smoking materials,” which he assumed to be the case since he understood the adult occupants of the apartment were smokers.
Alfidail and Elrawshdeh presented testimony of Scott Kuhlman, a Garden Grove firefighter who was in the unit that first responded to the fire and who then conducted the official fire department investigation into the fire. When he and other firefighters arrived at the scene (within about six minutes after they received the call), the fire was “fully involved[,]” with flames “blowing out” of the upper story of the complex. He estimated the fire had been burning “undetected” for 15 to 20 minutes prior to their arrival.
Based on his investigation, Kuhlman believed the fire “absolutely” started inside the wall in the wall heater area between the studs on either side of the furnace, specifically around the regulator and flex tubing leading into the furnace. Kuhlman noted the two wall studs had significant charring on either side of the heater, compared to other wall studs, which had only minimal smoke and heat damage. The roof directly above the wall heater was completely burned away indicating the fire shot up inside the wall cavity above the heater going out through the roof. Because the heater had vents, he surmised the flames would have shot out of the heater into the room, igniting any nearby combustibles such as the couch.
Kuhlman was emphatic the fire did not start outside the wall cavity and could not have originated with the couch. He considered the rate at which the fire spread and “flash over” occurred. Elrawshdeh told Kuhlman when she came into the living room, she saw a “[three to five foot] flame along the couch . . . near the wall heater.” When Alfidail and Elrawshdeh got outside the apartment, they saw heavy black smoke billowing out of the eaves, which indicated the fire had already been burning for long enough to have fully involved the attic area. Kuhlman said a fire starting in the room, particularly on the couch, would not have had enough time to burn up the wall through the attic and out the roof eaves in the 10 to 30 seconds it would have taken the occupants to flee the apartment. Additionally, a fire that had only just begun burning on the couch could not have resulted in the rapid flash over in the room that occurred in this fire. The flash over could only have occurred if the fire had already been burning inside the wall cavity preheating everything below.
The defendants also presented expert testimony from Leslie Hawkes, a retired firefighter who worked as a fire investigator. Hawkes too believed the fire had to have originated inside the wall cavity, spread upward into the attic, spread horizontally through the attic, and collapsing the ceiling before the interior of the living room itself became fully involved. He also opined the couch was too far away from the heater for it to have been a source of ignition.
In its statement of decision, the trial court observed U.S. Fire was primarily relying on res ipsa loquitur to establish its causes of action against the defendants (the contract cause of action was simply derivative of the negligence cause of action). The court commented that had the defendants moved for nonsuit, it would have granted the motion.
Although the court rejected the defendants’ pyrolysis theory, it concluded U.S. Fire had not made a case for applying the res ipsa loquitur presumption. U.S. Fire attempted to show the fire was not caused by a heater malfunction and, therefore, it had to have been caused by the occupants’ negligence. But, “[t]he evidence did not permit [the court] to take this leap.” Although the court believed U.S. Fire had done a “credit-worthy job” of showing the fire “may not have originated in the heater[,]” it was not persuaded heater malfunction was conclusively ruled out as a possible cause of the fire. Although U.S. Fire’s experts testified a combustible object placed too close to the heater could cause a fire, neither testified to or was asked to determine whether the heater was in fact on prior to the fire. All evidence in the record suggested the heater was not voluntarily turned on. The court was persuaded by Kuhlman’s testimony “the fire’s source was inside the wall and not external to it.” The heater was aging (32 years old) and the defendants had specifically reported suspected problems with it. Furthermore, the possibility of some negligence on the part of the building owners had not been ruled out. There was no evidence the defendants had ever been given any directions on operation of the heater or any restrictions as to how close furniture could be placed to the heater.
Additionally, the court noted Hamad, the person who was in closest proximity to the fire when and where it started (sleeping in front of the couch on the floor), was not called as a witness by U.S. Fire, and although he had been deposed by U.S. Fire, it did not attempt to introduce any portions of his deposition into evidence at trial. In any event, the court was not persuaded U.S. Fire had shown Hamad caused the fire.
DISCUSSION
1. Nonsuit and Burdens
Seizing on the court’s comment in its statement of decision that had there been a motion for nonsuit, it would have been granted, U.S. Fire argues the court erroneously found it failed to sustain its burden of production of evidence. It complains the burden of production is minimal, requiring only some evidence sufficient to support a prima facie case, unlike the burden of persuasion, which “entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) But, inasmuch as there was no motion for nonsuit, and the court did not grant nonsuit, we fail to see the relevance of U.S. Fire’s contention and decline to consider it further.
2. Res Ipsa Loquitur
U.S. Fire contends it satisfied its initial burden of production in establishing the applicability of the res ipsa loquitur doctrine by introducing evidence supporting “each element” of the doctrine, and the defendants failed to introduce substantial evidence to defeat the presumptive effect of the res ipsa loquitur doctrine. We find no merit to its contention.
“In California, the doctrine of res ipsa loquitur is defined by statute as ‘a presumption affecting the burden of producing evidence.’ [Citation.] The presumption arises when the evidence satisfies three conditions: ‘“(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”’ [Citation.] A presumption affecting the burden of producing evidence ‘require[s] the trier of fact to assume the existence of the presumed fact’ unless the defendant introduces evidence to the contrary. [Citations.] The presumed fact, in this context, is that ‘a proximate cause of the occurrence was some negligent conduct on the part of the defendant . . . .’ [Citation.] If the defendant introduces ‘evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence,’ the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence. [Citations.]” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826; see Evid. Code, § 646.)
The trial court did not err by refusing to apply the res ipsa loquitur presumption. Assuming for argument sake, as the trial court did, the first requisite for the presumption’s application was established (i.e., apartment fires ordinarily do not occur absent someone’s negligence), the presence of evidence that either the defendants were not negligent or their negligence was not the proximate cause of the fire allowed the trial court to disregard the presumption.
A presumption affecting the burden of producing evidence “is merely a preliminary assumption in the absence of contrary evidence, i.e., evidence sufficient to sustain a finding of the nonexistence of the presumed fact. If contrary evidence is introduced, the trier of fact must weigh the inferences arising from the facts that gave rise to the presumption against the contrary evidence and resolve the conflict. For example, if a party proves that a letter was mailed, the trier of fact is required to find that the letter was received in the absence of any believable contrary evidence. However, if the adverse party denies receipt, the presumption is gone from the case. The trier of fact must then weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether or not the letter was received.” (Slater v. Kehoe (1974) 38 Cal.App.3d 819, 832, fn. 12.) “[A] presumption [affecting the burden of producing evidence] disappears from the case entirely once the person against whom it operates has introduced sufficient evidence to support a finding against the presumption, without regard to whether that evidence will be believed by the trier of fact.” (Id. at p. 833, fn. 13.) In the res ipsa loquitur context, “[i]f evidence is produced that would support a finding that the defendant was not negligent or that any negligence on his part was not a proximate cause of the accident, the presumptive effect of the doctrine vanishes. However, the [trier of fact] may still be able to draw an inference that the accident was caused by the defendant’s lack of due care from the facts that gave rise to the presumption.” (Ibid.)
U.S. Fire’s contention there is no substantial evidence indicating the defendants were not negligent (or that their negligence was not the proximate cause of the fire) is without merit. Although U.S. Fire did introduce credible evidence the wall furnace did not malfunction, the defendants also introduced credible and compelling evidence the fire originated inside the wall where the furnace was installed (an area obviously not within their exclusive control). Kuhlman, who conducted the official investigation into the fire, was emphatic in his testimony the fire started inside the wall, in the area between the studs on either side of the furnace, and did not start on the exterior of the wall. Hawkes similarly testified to his opinion the fire started inside the wall cavity.
In its brief, U.S. Fire points out neither Kuhlman nor Hawkes offered an opinion as to the cause of the fire, i.e., what actually started it, but testified only as to the location were it began, i.e., inside the wall cavity at or near the heater. Thus, it argues, its experts’ opinions as to causation, i.e., that the fire was not caused by a heater malfunction remained uncontroverted and the trial court should not have disregarded those opinions.
U.S. Fire contends Kuhlman’s and Hawkes’s testimony was not sufficient because both indicated they relied in part on the burn pattern of the fire, which both conceded could be the same whether the fire started inside or outside the wall. We fail to see how that renders their opinions unworthy of evidentiary weight. U.S. Fire’s expert Vasudevan had testified the burn patterns were only consistent with a fire starting on the exterior of the wall. While Kuhlman’s and Hawkes’s testimony about burn patterns might not have been adequate to prove the fire in fact ignited inside the wall, that they believed the burn patterns would have been the same regardless of the starting point cast doubt on Vasudevan’s opinion the burn patterns proved the fire started on the outside.
U.S. Fire also argues Kuhlman’s and Hawkes’s testimony is not adequate because they both relied on statements from Alfidail and Elrawshdeh concerning precisely where they saw flames as they fled the apartment, which were subsequently contradicted. Kuhlman indicated Elrawshdeh told him at the fire scene she saw a three to five foot flame along the couch near the furnace. Elrawshdeh told another firefighter, Tim Adams, the flames were on the corner of the couch as she fled the room. Hawkes said he relied in part on Elrawshdeh’s statements to him that the couch was not yet on fire. At trial, Elrawshdeh testified she saw the flames coming from the furnace, and the couch was not on fire. At trial, Alfidail testified there were flames coming from the side of the furnace, but either the couch was not on fire or he could not recall seeing flames on the couch. At his deposition, Alfidail said he saw the flames at the top of the furnace.
The inconsistencies in Alfidail’s and Elrawshdeh’s statements to investigators and in the course of this litigation concerning where exactly they saw flames might go to the weight to be given their testimony and the conclusions the fire investigators reached, but certainly do not render the defense evidence insufficient to rebut the res ipsa loquitur presumption. Indeed, it is not at all surprising that two people attempting to flee a burning apartment with a two-year-old child at the crack of dawn (during what Kuhlman described as a 10 to 30 second time frame) would provide differing accounts of exactly what they saw. They were always consistent about seeing flames on the furnace and in the area of the furnace. That they were inconsistent about whether the couch (which, after all, U.S. Fire insists was only six inches away from the side of the furnace) was on fire as well does not negate the fire investigator’s testimony.
Furthermore, U.S. Fire ignores the myriad other factors upon which Kuhlman based his opinion that the fire began inside the wall cavity where the furnace was located. He testified as to significant charring of the wall studs on either side of the furnace and the lack of similar charring to other wall studs. He relied on the fact the roof directly above the furnace was completely burned away, which indicated the fire had been burning inside that specific part of the wall prior to igniting combustibles in the room. Kuhlman relied on the fact that as soon as Alfidail and Elrawshdeh got outside the apartment they saw heavy black smoke billowing out of the eaves. In his professional experience, that indicated the fire had already been burning long enough to have gone up the wall into and through the attic. Given the very short time frame from when Alfidail and Elrawshdeh discovered the fire until they got outside with their child (10 to 30 seconds), a fire that had initially erupted on the couch would not have had time to burn up the walls, into the attic, and produce the degree of smoke that was witnessed. Finally, Kuhlman also believed that had the fire started on the couch, it could not have resulted in the rapid flash over in the room that occurred in this fire. The flash over could only have occurred if the fire had already been burning inside the wall cavity preheating everything below.
In short, there is evidence in the record supporting a conclusion Alfidail and Elrawshdeh did not negligently cause the fire. The couch may or may not have been placed inappropriately close to the furnace—we don’t know—but the record strongly suggests that in any event the furnace was not voluntarily turned on. Although the occupants were smokers, there is no evidence they were smoking inside the apartment prior to the fire. U.S. Fire put forth evidence the heater did not malfunction, but the defendants put forward substantial evidence the fire started inside the cavity of the wall where the heater was located. Because there was such evidence, U.S. Fire was not entitled to the presumption of negligence the res ipsa loquitur doctrine provides.
There is nothing in the trial court’s statement of decision suggesting it misunderstood or misapplied the res ipsa loquitur doctrine. U.S. Fire makes much of comments in the trial court’s statement of decision suggesting it believed the presumption had not been “triggered” in the first place, as opposed to finding it had been successfully rebutted by the defendants, because it was not persuaded the fire was caused by something exclusively within the defendants’ control. While that might be of some interest in the context of a jury trial (when faced with whether a plaintiff was entitled to a res ipsa loquitur instruction), this was a bench trial. Regardless of where the defendants’ evidence is plugged into the equation (prima facie showing of the presumption or a successfully rebutted presumption), the fact remains once there was evidence supporting a finding the defendants were not the negligent cause of the fire, the presumption vanished. The trial court was left as the trier of fact weighing the evidence. It was not persuaded the heater had not malfunctioned, given its age and evidence of prior problems including a possible gas leak and unusual clicking sounds. And in view of the evidence the fire started inside the wall cavity, not outside of it, the court was not persuaded the defendants (or Hamad) had negligently caused the fire.
3. Impeachment of Alfidail
U.S. Fire contends the trial court improperly deprived it of an opportunity to impeach Alfidail. We disagree.
We begin with some background. U.S. Fire called Alfidail as a witness. During direct examination, U.S. Fire attempted to ask Alfidail whether he had purchased the couch. When the court sustained an objection, counsel offered the question was asked for impeachment purposes. The court told counsel it was inappropriate to impeach Alfidail because it had only just called him as a witness for its case-in-chief. Counsel then asked, “isn’t it true you were given this sofa?” The court sustained an objection and warned counsel not to call a witness under the guise of proving its case-in-chief just “to make him look like a fool.” U.S. Fire’s counsel then offered Alfidail’s deposition testimony in which when asked “where [he] purchased the sofa from?” Alfidail answered “we got it from a friend of mine.” And when asked “so it wasn’t purchased brand new or was it?” Alfidail responded, “no.” The court would not allow further questioning on the point. Later, U.S. Fire’s counsel asked Alfidail if he had filled out a claim for $50,000 worth of damages due to the fire. The court sustained an objection. Counsel made an offer of proof the testimony would impeach Alfidail’s credibility because in the damage claim “he said he paid $1,000 for the sofa[,] but in his deposition he said he got it for free.” The court would not allow the questioning warning, “I’m not interested in impeaching a witness who you are calling for your own case.”
U.S. Fire complains the court erred by refusing to allow it to question Alfidail about the couch. It contends that because it called Alfidail as an adverse witness under Evidence Code section 776, it was entitled to impeach him with questions that would go to his credibility.
U.S. Fire is correct that “the party calling [an adverse] witness shall not be precluded from rebutting his testimony or from impeaching the witness[,]” because the witness’s testimony is in the nature of cross-examination. (Daggett v. Atchison, T. & S. F. Ry. Co. (1957) 48 Cal.2d 655, 663.) But, it is also true “[t]he extent to which cross-examination of a witness may be carried rests, of course, largely within the discretion of the trial court . . . .” (Ibid.)
We cannot say the court abused its discretion by prohibiting U.S. Fire from pursuing its line of questioning. First, we note the offer of proof was not what U.S. Fire now claims it to be. On appeal, it characterizes Alfidail’s deposition testimony quoted above as being that the couch had not been purchased at all, but was a gift from a friend. That is not what Alfidail said in the testimony to which U.S. Fire refers. He was asked if he had purchased the couch new; he replied he had not bought it new, he “got it from a friend.” He never said it was a gift, or that he did not pay for the couch. He only said he did not buy it new. And even if Alfidail had received the couch as a gift that does not render it without monetary value in making a claim for damages he suffered as a result of the fire.
Even were we to agree the trial court abused its discretion by not allowing U.S. Fire’s line of questioning, we would disagree the error resulted in a miscarriage of justice. (Evid. Code, § 354.) U.S. Fire argues it was prejudiced because the case trial “largely turned” on Alfidail’s and Elrawshdeh’s credibility. Nonsense. The case hinged on expert testimony concerning the origin of the fire. That Alfidail and Elrawshdeh gave varying accounts of what they saw as they rapidly fled their home in the early morning conflagration was fully explored at trial. In its statement of decision, the court specifically commented Alfidail was not a particularly “articulate witness.” We simply cannot fathom the trial court would have ruled any differently had it received additional testimony about whether Alfidail paid for the couch or received it gratis.
DISPOSITION
The judgment is affirmed. The Respondents are awarded their costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.
At oral argument, U.S. Fire argued it was improperly denied the opportunity to cross-examine Kuhlman or Hawkes as to their opinions (or lack thereof) concerning causation. Furthermore, it asserted, denying it such cross-examination was prejudicial error requiring reversal. Because the argument was raised for the first time at oral argument, we decline to consider it. (See Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 924, fn. 2.)
At oral argument, U.S. Fire represented the alleged error was raised and argued in its opening brief. The passage to which it referred is contained within its brief’s argument concerning whether it had sustained its initial burden of production of evidence of negligence so as to survive a motion for nonsuit (an argument we have already pointed out is irrelevant given that there was no motion for nonsuit). U.S. Fire stated, “[its] theory of causation was not controverted at trial. Not only did the defendants fail to call their own expert on causation, each time U.S. Fire’s counsel asked defendants’ origin expert a question touching on causation, the question was objected to as being ‘beyond the scope.’ [Citations to reporter’s transcript omitted.] Because U.S. Fire’s expert testimony stood uncontradicted . . . [its experts’] testimony could not be arbitrarily or unreasonably disregarded.”
The discussion to which U.S. Fire points can hardly be considered an argument that the trial court erred by precluding cross-examination of the defendants’ witnesses as to their opinions on causation. There is absolutely no allegation of error and no legal analysis. That its brief contained a passing observation concerning an event at trial that might have been error, does not entitle an appellant to raise in oral argument an entirely new claim of reversible error. The random scattering of seeds in its brief that could germinate and grow into a full fledged appellate argument, does not satisfy an appellant’s burden.