Opinion
No. 2990111.
Decided May 26, 2000. Rehearing Denied July 28, 2000.
Appeal from Mobile Circuit Court (CV-98-744).
Hugh C. Henderson, Birmingham, for appellant.
Thomas M. Galloway, Jr., and Thomas O. Gaillard III of Galloway, Smith, Wettermark Everest, Mobile, for Mobile Power Light Co. for appellee.
Safeco Insurance Company ("Safeco"), appeals from a summary judgment in favor of Mobile Power and Light Company, Inc. ("Mobile Power"). This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.
In March 1998, Safeco and two of its insureds, Audrey Loyd and Brenda Loyd, sued Mobile Power, alleging that Mobile Power had negligently performed the installation and/or repair of electrical wiring in the Loyds' residence, and that its negligence had resulted in a fire that destroyed the residence. Mobile Power moved for a summary judgment, arguing that there was no evidence to support a negligence action against it and that it was therefore entitled to a judgment as a matter of law. Rule 53, Ala.R.Civ.P. Although the record does not contain the order denying the summary judgment motion, the court denied it on February 19, 1999. On a reconsideration, the court, on September 13, 1999, granted the motion and entered a summary judgment. This appeal followed.
A summary judgment is appropriate only when the moving party shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Ala.R.Civ.P. Once the moving party has made a prima facie showing that there is no genuine issue of material fact, the nonmoving party must rebut that showing by presenting "substantial evidence" creating a genuine issue of material fact. § 12-21-12, Ala. Code 1975; Hope v. Brannan, 557 So.2d 1208 (Ala. 1989). In determining whether the evidence creates a genuine issue of material fact, a court will view the evidence in a light most favorable to the nonmoving party. King v. Winn-Dixie of Montgomery, Inc., 565 So.2d 12 (Ala. 1990).
The scant record before us suggests these facts: In 1994, the Loyds hired Mobile Power to install an electrical system in their new residence. Bill Barry, the owner of Mobile Power, performed all of the electrical work on the residence; he was assisted by another licensed electrician. Barry stated in his affidavit that all of the electrical work was "performed in accordance with building code specifications." The record contains only portions of the deposition testimony provided by several of the witnesses. Theodore Blunt, an inspector for the Mobile County Building Inspection Department, stated that he had performed two inspections at the Loyds' residence in 1994, the "rough-in" inspection and the "service release" inspection, and that he found no problems in either of the inspections. George Casellas, a technical consultant hired by Safeco, stated in his affidavit that he had conducted a "failure analysis evaluation" of the electrical wiring at the Loyds' residence and had concluded that the fire originated at the "electrical service disconnect installed inside the closer to serve the air handler system." Casellas further stated:
"A thorough laboratory examination of the recovered evidence clearly revealed that a fault had taken place at one of the 120-volt power side lugs for the circuit breaker. The failure modes expected for these type failures include the phenomenon of `glowing connections' or high resistance faults. These faults are more likely than not the result of loose or improperly made connections at the lugs. Loose connections develop from the following conditions: Improper lug torque during installation, mechanical failure of the screwed lug, or thermal shrinkage of the conductor inside the lug. A loose connection at the lug during installation should have been detected by the responsible electrician by conducting a `MEGGOHM' reading of each branch circuit prior to turning the power on in the residence.
"An examination of the 60-amp fused disconnect for the air conditioning compressor at the exterior north wall of the residence revealed that a previous electrical fire had taken place only a few months prior to the subject fire occurrence. This problem had been corrected by the replacement of the fused disconnect inside the panel box. It was noted that this circuit was part of the same continuous feeder that supplied power to the air handler. Based on this precedent, the entire electrical system for the air handler and air conditioning compressor should have been inspected at that particular time for the existence of any possible inherent malfunctions."
In Bell v. Colony Apartments Co., 568 So.2d 805 (Ala. 1990), our supreme court addressed the elements required in a negligence claim to defeat a motion for summary judgment. The court stated:
"One of the elements that a plaintiff must establish in any negligence action, of course, is `proximate cause.' A plaintiff must establish the existence of a nexus between the action of the defendant and the subsequent injury or damage sustained by the plaintiff. Where the plaintiff fails to show that the action of the defendant `proximately caused' his injury or damage, then an action for negligence cannot be sustained as a matter of law."
Id. at 807. The court further stated that "`summary judgment is rarely appropriate in negligence actions, which almost always present factual issues of causation and of the standard of care that should have been exercised.'" Id. at 809 (citation omitted); see also Nunnelee v. City of Decatur, 643 So.2d 543, 545 (Ala. 1993). In Bell, the court reversed a summary judgment entered in favor of an apartment owner, holding that the tenants had produced sufficient evidence to create a genuine issue of material fact regarding the origin of a fire that had damaged their apartments, and that direct evidence was not necessary to prove their negligence claim if "proof of negligence may be established completely through circumstantial evidence." Id. at 810.
After reviewing the record and the applicable caselaw, we conclude that the court erred in entering the summary judgment for Mobile Power. Safeco produced evidence that created a genuine issue of material fact as to whether Mobile Power properly performed the installation and/or repair work done at the Loyds' residence. Accordingly, we reverse the judgment and remand the case for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
Robertson, P.J., and Monroe, J., concur.
Crawley and Thompson, JJ., dissent.
I dissent, because I do not believe Safeco presented substantial evidence either that Mobile Power breached a duty to the Loyds or that any breach of duty proximately caused the Loyds' fire loss.
Bell v. Colony Apts. Co., Ltd., 568 So.2d 805 (Ala. 1990), cited by Judge Yates for the proposition that circumstantial evidence is sufficient to establish proof of negligence, is distinguishable. In Bell, a fire occurred 30 minutes after the defendant's employee had made electrical repairs in the area where, it was later determined, the fire had originated. In the present case, the fire occurred two years after Mobile Power had installed the wiring. While a jury could reasonably infer the defendant's negligence under the facts inBell, no reasonable jury could infer the defendant's negligence from the evidence presented by Safeco.
Safeco's expert testimony was speculative as to the cause of the fire. In Ex parte Diversey Corp., 742 So.2d 1250 (Ala. 1999), the Alabama Supreme Court stated:
"Many years ago, this Court gave an excellent explanation of the problem caused when a party presents speculative testimony to prove causation:
"`"Proof which goes no further than to show an injury could have occurred in an alleged way, does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause." [Southworth v. Shea, 131 Ala. 419, 421, 30 So. 774, 775 (1901).]
"`But a nice discrimination must be exercised in the application of this principle. As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.'
"Southern Ry. v. Dickson, 211 Ala. 481, 486, 100 So. 665, 669 (1924)."
Diversey, 742 So.2d at 1254 (footnote omitted).
The testimony of George Casellas, Safeco's expert, was speculative because it did not point to any one theory of causation implicating negligence by Mobile Power.
Casellas said that the fire was caused by a loose connection at a lug. He stated that the loose connection could have been caused in one of three ways: improper tightening of the lug at installation; mechanical failure of the lug; or thermal shrinkage of the conductor inside the lug. Only the first of these three causes would have been attributable to negligence on the part of Mobile Power.
The testimony of Ted Blunt, an electrical inspector for the Mobile County Building Inspection Department, ruled out attributing the loose connection to improper tightening at installation. Blunt testified that he inspected the electrical work in and around the ventilation closet where the fire was supposed to have originated. He said all the work was performed in accordance with industry standards and building code specifications and that "the termination was tight and secure" when he inspected it.
The trial court correctly determined that Safeco produced no evidence creating a genuine issue of material fact as to whether Mobile Power was negligent. The summary judgment in favor of Mobile Power should be affirmed.
Thompson, J., concurs.