Opinion
No. 90CV32311.
Decided March 5, 1991.
Daniel E. Whiteley, Jr., for plaintiff.
K. Roger Schoeni, for defendant.
This case was tried to the court without a jury on February 19, 1991 and was taken under advisement for decision. In the framework of a subrogation case, the primary issue is the negligence or lack thereof of the defendant, Vogt Auto Service. No issue was raised and therefore the court from the evidence finds that plaintiff is a casualty insurance carrier; that plaintiff had in effect on August 18, 1989 an insurance policy with its insured, Maria Lanaghan; that pursuant to its policy obligations, plaintiff paid $2,242.73 to its insured because her vehicle was damaged in a fire; and that plaintiff became subrogated to its policyholder's interest to the extent of its payment to her.
The insured had taken her vehicle, a 1981 Volkswagen Rabbit, to the defendant's place of business for an engine replacement. The work was done and the vehicle was put in the insured's possession on August 14, 1989. The vehicle was not driven or serviced in the interim period preceding the fire. On August 19, 1989, the insured was traveling from a downtown address to Christ Hospital when she stopped the vehicle at the intersection of Sixth Street and Central Avenue when a passing motorist yelled, "Get out of your car; it's on fire!" The insured vacated her vehicle and the intensity of the fire increased. Municipal authorities were notified and the fire was extinguished.
The vehicle was towed to the defendant's place of business and inspected there by James A. Gamm of Universal Fire Specialists, Inc. Gamm testified that the fire originated at the left rear of the engine compartment. From Gamm's report and the pictures of the damaged vehicle contained therein, it is obvious that Gamm's point of reference is from a point facing the front bumper of the vehicle and not from a seated position in the front seat. Gamm's conclusion is that the fire occurred when the fuel line, which carries pressurized gasoline, became detached from the cold start valve and sprayed fuel onto the hot engine block.
Defendant takes issue not so much with Gamm's ultimate conclusion, but the inference of negligence which results. In other words, defendant theorizes that an electrical problem of unknown origin caused a fire and the resulting flames melted the fuel line. Defendant's agent testified that he replaced the engine and hooked it up to the components, including the fuel line, from the old engine.
Plaintiff asserts the res ipsa loquitur theory and argues that it has application in this case. To warrant application of the rule, the plaintiff must produce evidence to support the following elements: (1) the instrumentality causing the damage was, at the time of the creation of the condition causing the damages, under the exclusive control of the defendant; (2) the damage occurred under circumstances which in the ordinary course of events such damage would not have occurred if ordinary care had been observed; and (3) plaintiff is free of any negligence which may have accounted for the damage. See Hake v. George Wiedemann Brewing Co. (1970), 23 Ohio St.2d 65, 52 O.O.2d 366, 262 N.E.2d 703. In other words, plaintiff, relying upon the res ipsa loquitur theory, can prove a prima facie case without any direct proof of actionable negligence. A plaintiff who establishes the above elements may be entitled to an inference of negligence on the part of defendant. Such an inference may be warranted, but is not compelled. See Jennings Buick, Inc. v. Cincinnati (1980), 63 Ohio St.2d 167, 169, 17 O.O.3d 102, 103, 406 N.E.2d 1385, 1387.
If the situation is a proper one for the application of the doctrine, the plaintiff by pleading or by proof of a specific cause of the damage does not lose his right to rely on the doctrine. See 57B American Jurisprudence 2d (1989) 655, Negligence, Section 2000. Plaintiff in this case alleged in its complaint only a general reference to negligent conduct, but produced specific proof about the cause of the fire, to wit: a disconnected fuel line. However, proof of a negligent act is based on an inference in this case.
The court has found a case very similar to the instant action. In Schafer v. Wells (1961), 171 Ohio St. 506, 14 O.O.2d 439, 172 N.E.2d 708, an oil-fired furnace exploded in the plaintiff's automobile repair garage. A used oil burner was installed in the furnace by the defendant, a repairman, and within a period of one and one-half hours after defendant left the premises, a fire broke out in the furnace room. The trial court applied the res ipsa loquitur theory and specifically found: (1) the oil burner was in the exclusive control of the defendant; (2) the cause of the fire had to be the oil burner or its accessories or the manner in which they were installed; (3) the fire would not have occurred in the absence of negligence. The trial court's judgment was reversed by the appellate court, but the judgment was reinstated by the Ohio Supreme Court, the conclusion being that the facts presented a proper case for res ipsa.
This court finds Schafer v. Wells, supra, to be persuasive. The burden of proof is upon the plaintiff to prove its case by a preponderance or greater weight of the evidence and in weighing the evidence the court considered, among other things: (1) the time and distance from the point of delivery of the vehicle to the insured and the time and location of the fire; (2) the relatively unfrayed condition of the fuel line at the junction with the cold start valve; (3) defendant's agent's testimony that in replacing the engine, he probably didn't disconnect the fuel line from the cold start valve; and (4) the complete lack of proof of any electrical cause of the fire.
The conclusion reached is that res ipsa loquitur is applicable; that defendant was negligent either in the installation or inspection of the fuel line; and that judgment should be rendered against it in the amount of plaintiff's subrogated interest or $2,242.73 plus costs of court. Lanaghan, the insured, is not a party to this litigation, and her deductible does not constitute a subrogated interest of the plaintiff.
It is so ordered.
Judgment accordingly.