Tennessee Supreme Court Finds General Contractor Not Responsible for Fire Under Res Ipsa Loquitur Theory Without Exclusive Control of Area

The Tennessee Supreme Court recently issued an interesting opinion in a case involving a fire which caused a loss to a partially completed house. In this case, Ewin B. Jenkins v. Big City Remodeling, et al, No. E2014-01612-SC-R11-CV, 515 S.W.3d 843 (Tenn. 2017), the Court dealt with a situation where the Plaintiff’s hired a general contractor to construct a house. The general contractor subcontracted the hardwood flooring work to another contractor, which in turn subcontracted the job to another subcontractor. On October 31, 2012, the partially completed house and everything in the house were destroyed by a fire. The legal theory used by the plaintiffs against the general contractor was the theory of res ipsa loquituur to try to establish an inference of negligence on the general contractor.

The Tennessee Supreme Court noted that due to the fact the Plaintiffs lacked direct proof of the general contractor’s negligence, they relied upon the evidentiary principle of res ipsa loquitor to establish an inference of negligence. The phrase “res ipsa loquitur” is a Latin phrase meaning “the thing speaks for itself”. The classic case where the res ipsa loquitur doctrine was first referenced is a 19^th Century English case, Byrne v. Boadle, 159 Eng. Rep. 299 (1863). In that case, a barrel of flour rolled out of a window of a warehouse and fell on a passing pedestrian. The pedestrian could not point to any specific negligent actions on behalf of the warehouse owner that actually caused the barrel of flour to hit the pedestrian.  However, the plaintiff successfully argued that this was the kind of event that would not happen without the negligence of the warehouse owner. As a result, the plaintiff in that case was successful under this theory.

In the Jenkins case at issue, the Tennessee Supreme Court analyzed the res ipsa loquitur doctrine in detail. In order to establish res ipsa loquitur in Tennessee, a plaintiff must show that “(a) the event that caused the injury is of a kind that ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the negligence is within the scope of the defendant's duty to the plaintiff.” Jenkins at 849. The Tennessee Supreme Court noted that res ipsa loquitur has been applied in fire loss cases in Tennessee and in other jurisdictions when the exact cause of the fire is not known. However, in those cases, the defendant had “exclusive control over the premises or the instrumentality that cause the fire.” Jenkins at 849. That is the key issue in the Jenkins case.

In the Jenkins case, the Court found the Plaintiff simply did not sufficiently eliminate other possible causes of the fire in order to be able to apply the res ipsa loquitur doctrine. This would include the elimination of possible conduct of third parties and the establishment that the general contractor actually had exclusive control over the cause of the fire or all possible probable causes. The Plaintiff could not produce sufficient evidence of the general contractor’s exclusive control of the area.

The establishment of proof of exclusive control is a requirement for this type of situation and the Court found that the fire started on the back deck of the Plaintiff’s house. This was in an unfenced back yard that was accessible to the public. There is no exact known cause of the fire, but it did occur on Halloween, which is a day of the year that has a high number of fires. There were numerous other possible causes of fire that were identified by the various experts including arson, electrical wiring, an improperly discarded cigarette or spontaneous combustion of rags. However, none of these possible causes were shown to be more probable than the others and, once again, the general contractor was not in exclusive control of the premises.

As a result, the Tennessee Supreme Court found that, although the fire that damaged the Plaintiff’s house was unfortunate and unexplained, the Court could not infer the negligence of the general contractor because the fire of unknown origin started at the exterior of the house which had open access to the general public. Jenkins at 851. Under this factual circumstance, without establishing exclusive control of the property by the general contractor, negligence simply cannot be inferred under the res ipsa loquitur doctrine and therefore the claim against the general contractor failed.

Certainly, the res ipsa loquitur doctrine can be very helpful for plaintiff’s in certain cases. However, if the core requirements of the doctrine cannot be established, the doctrine is worthless. Two of the core requirements that were not established in this case were (1) exclusive control over the property or (2) exclusive control over the item that caused the damage.