Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. BC355410, Malcolm Mackey, Judge.
Law Offices of Gene W. Choe and Gene W. Choe for Plaintiff and Appellant.
Law Office of Priscilla Slocum and Priscilla Slocum; Early, Maslach & Van Dueck and Edor Anderson for Defendant and Respondent.
CROSKEY, Acting P. J.
Plaintiff and appellant Young Ra Choi appeals from a judgment after a jury verdict in favor of defendant and respondent Ardmore Investors, LLC, in this action for injuries and losses suffered in a fire. The fire occurred in an apartment Choi rented from Ardmore. The specific cause of the fire was never conclusively determined, although it appears that the water heater in Choi’s apartment provided the ignition source. According to Choi, the fire was caused by Ardmore’s negligent maintenance of the water heater; according to Ardmore, the fire was caused by Choi’s negligent storage of flammable materials near the water heater. Instructed on negligence, the jury determined that Ardmore had been negligent, but that its negligence was not a proximate cause of Choi’s damages. On appeal, Choi argues that the trial court erred in refusing to instruct the jury on conditional res ipsa loquitur. We conclude that the evidence did not support such an instruction, and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Choi and her two sons lived in a two-bedroom/two-bathroom second-floor apartment rented from Ardmore. Choi’s husband had died in 2002.
The apartment’s water heater was located in a cabinet or closet near the entrance to one of the bathrooms. The bottom of the closet door had openings for ventilation. The fire started between 7:30 and 8:00 a.m., on July 18, 2004. Choi and her youngest son, Michael, were in the kitchen. They heard a loud bang and saw flames or sparks exiting the vent at the bottom of the water heater cabinet. According to Choi, one very long flame shot out of the cabinet, turned toward the bathroom, and caught fire in the bathroom. Choi specifically testified that there was no fire outside the bathroom; the fire initially ignited inside the bathroom only.
Choi tried to put out the fire with water. When this failed, she went to get a neighbor to help her, and told Michael to wake his brother and leave the apartment. The boys safely exited. The apartment building was three stories high and had one fire extinguisher on each level. Choi’s neighbor used the second-floor fire extinguisher on the fire. This was helpful, but did not completely extinguish the flames. He then obtained the fire extinguisher from the first floor. For some unknown reason, the fire extinguisher failed to work. The neighbor left Choi’s apartment to obtain a hose.
At this point, Choi thought she could extinguish the remainder of the fire with water in her apartment, so she went back into her kitchen to fill a container with water. Once the container was filled, Choi turned and saw that her apartment had filled with black smoke. Choi was afraid that if she left through the door, she would be burned. She therefore jumped from her patio, sustaining injuries.
By this time, someone had telephoned 911 and the firefighters had arrived. They extinguished the fire. Los Angeles City Fire Battalion Chief Craig Yoder was among the firefighters responding. After speaking with Choi, and learning that she heard an explosion before she saw a fire leave the water heater cabinet, Chief Yoder concluded that the fire had been caused by a “faulty water heater.” This conclusion was not based solely on Choi’s statement, but also the level of damage to the inside of the water heater door and debris inside the water heater cabinet. As a fire starting in the bathroom would not have been able to burn through the water heater cabinet and cause this interior damage, Chief Yoder believed this damage confirmed that the water heater had caused the fire. Finally, Chief Yoder believed that the cabinet door and some carpet outside the water heater had been located close enough to the water heater to ignite. Chief Yoder did not test the water heater itself, or determine any way in which it might have been “faulty.”
Almost immediately after the fire, Ardmore and its insurance carrier began investigating the fire and preserving necessary evidence. Ardmore’s property manager took photographs of Choi’s apartment either the day of the fire or the day after. A fire investigator was retained, and he was on the site two days after the fire, investigating its cause. The investigator, Derek Olin, studied the burn patterns in the apartment and concluded that the fire had started in the bathroom. He supported this conclusion with the fact that the water heater itself (including paper tags) was not burned and there was minimal damage inside the water heater closet. The water heater was then taken off-site and stored, so that it would be available for later examination if necessary.
On July 14, 2006, Choi filed suit against Ardmore, seeking damages for her physical injuries and property losses. Although Choi originally sought to proceed against Ardmore on numerous theories, the jury was ultimately instructed only on negligence. One instruction submitted by Choi, but rejected by the trial court, was CACI No. 417, an instruction on res ipsa loquitur.
Choi submitted jury instructions on, among other things, breach of contract, conversion, and negligence per se.
Choi proceeded to trial on the theory that a faulty water heater had caused the fire, and that Ardmore had failed to perform its duty to maintain the water heater in proper working order. Choi did not retain an expert until just prior to trial. Thus, her plumbing and heating expert, Harvey Kreitenberg, did not examine the water heater until June 18, 2007, nearly three years after the fire. When he examined the water heater, Kreitenberg saw two things he identified as problems with it. First and foremost, Kreitenberg observed that the water heater’s inner door, which closes off the combustion chamber, was skewed and did not properly close off the chamber. As the door failed to contain the flames, this problem could result in an out of control burner. Second, Kreitenberg noted that the water heater’s outer shell was rusted through. Neither rust itself nor the small hole he saw would contribute to the fire; Kreitenberg believed that this rust was simply symptomatic of the heater’s advanced age. Kreitenberg would eventually testify that the heater was manufactured in 1989, and that, although its useful life could be anywhere from 2 to 15 years depending on use, the typical useful life of a water heater is 5 to 7 years.
Kreitenberg testified that a water heater operating past its useful life could get a leak in the connections, have worn out controls, or “malfunction.” He did not further testify as to whether any malfunction caused by age would result in a fire.
At trial, Kreitenberg was shown the photographs taken by the property manager no later than the day after the fire. These photographs showed no rust on the water heater and, more importantly, the water heater’s inner door properly placed. Kreitenberg conceded that, with the inner door as it appeared in the photographs, he “would not expect the flame to leave the burner chamber.” While it still could have happened, Kreitenberg believed the likelihood was greatly reduced.
Two more key facts came out at trial. First, the property manager’s photographs revealed several butane canisters which had been stored in the apartment, under the sink in the bathroom which was not damaged in the fire. Choi denied having stored the butane tanks in the apartment and indicated she had no idea how they came to be there. Nonetheless, she immediately identified the canisters in the photographs as butane gas tanks, and stated that her husband had used them to cook on a grill outdoors. This evidence, combined with Choi’s testimony about a flame having travelled around a corner from the water heater to the bathroom, prompted Olin to revise his theory about the cause of the fire. He opined that a butane tank must have been stored in the bathroom where the fire occurred. He believed that the tank leaked, causing flammable gas to travel along the ground (butane being heavier than air) where it was lit when it came into contact with the water heater’s pilot light. At that time, the flame immediately travelled back along the butane flow into the bathroom, where it ignited. The sparks seen by Choi and her son could be attributed to lint in the vent catching fire and sparking. Olin testified that a butane leak was the only way to explain the path of the flame observed by Choi. A butane-leak fire would not have been caused by any defect in the water heater; the water heater would have been working normally. While Fire Chief Yoder did not change his opinion about the cause of the fire, he agreed that this theory was plausible.
Choi also stated that some of the tanks in the picture were her husband’s oxygen tanks from his final illness.
Choi was in the process of packing to move, and had various items in the bathroom at the time.
Second, Ardmore introduced evidence that Choi had improperly stored various items in the water heater cabinet. While Choi denied doing this and there was little evidence that the items caused this fire, the evidence suggested that this was an alternative way in which a water heater could be the ignition source of a fire without there being any fault in the water heater itself.
While the bulk of the evidence focused on the water heater itself and the cause of the fire, Choi also proceeded on the theory that Ardmore was negligent in its fire extinguisher maintenance (as the second extinguisher had failed), its smoke alarm maintenance (as none had activated), and its record-keeping (as there were minimal records of inspections, repairs, and tenant communications). The jury returned a verdict finding Ardmore negligent, but that Ardmore’s negligence did not proximately cause Choi’s damages. The special verdict form did not ask the jury to determine in which way it found Ardmore negligent; thus, it may have found Ardmore to be negligent in its record-keeping or fire extinguisher maintenance, and not necessarily in its failure to perform regular maintenance on the water heater. As the jury found no causation, the trial court entered judgment in favor of Ardmore. Choi filed a timely notice of appeal.
On appeal, Choi asserts that the jury found Ardmore was negligent in its maintenance of the water heater. However, in her motion for new trial, Choi properly recognized that the jury’s verdict was only that Ardmore had been negligent in some manner.
ISSUE ON APPEAL
The sole issue presented by this case is whether the trial court erred in refusing to instruct the jury on res ipsa loquitur.
DISCUSSION
“Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. [Citations.] It is based on a theory of ‘probability where there is no direct evidence of defendant’s conduct, [citations], permitting a common sense inference of negligence from the happening of the accident. [Citations.] The rule thus assists plaintiffs in negligence cases in regard to the production of evidence.” (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 75.) It is “a rule of determining whether circumstantial evidence of negligence is sufficient.” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825.) “The applicability of the doctrine depends on whether it can be said the accident was probably the result of negligence by someone and defendant was probably the person who was responsible. [Citations.] In the absence of such probabilities, there is no basis for an inference of negligence serving to take the place of evidence of some specific negligent act or omission.” (Gicking v. Kimberlin, supra, 170 Cal.App.3d at p. 75.)
“A plaintiff must produce the following evidence in order to receive the benefit of the doctrine: 1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; 2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and 3) the accident must not have been due to any voluntary action or contribution on the part of the plaintiff.” (Gicking v. Kimberlin, supra, 170 Cal.App.3d at p. 75.) When there is conflicting evidence of these three elements, the issue of whether the presumption applies is left to the jury. (Slater v. Kehoe (1974) 38 Cal.App.3d 819, 829.) Under these circumstances, the proper jury instruction is referred to as a conditional res ipsa loquitur instruction.
The instruction sought by Choi in this case was such a conditional instruction. It read: “In this case, [Choi] may prove that [Ardmore]’s negligence caused [her] harm if [she] proves all of the following:
On appeal, Choi argues that the conditional res ipsa loquitur instruction should have been given because she produced sufficient evidence of all three elements. As to the first element, that the harm would not have happened in the absence of negligence, Choi states that the evidence showed that Ardmore “failed to conduct a reasonable inspection of the water heater and that had it done so it would have reasonably discovered that the water heater had a defect.” The flaw in Choi’s argument is that it is based on the underlying premise that a water heater cannot ignite a fire in the absence of a defect in the water heater itself. There was no evidence of this proposition at trial. In fact, the evidence was to the contrary. Olin testified that, had the water heater ignited a butane gas leak, the water heater would have been working normally. He testified that all water heaters have tags indicating that flammables should not be placed near water heaters, because a water heater can ignite a flammable when there is nothing wrong with the water heater. Choi introduced no evidence to the contrary; no witness testified that a water heater cannot set something alight unless the water heater has a defect. Having failed to establish evidence of the first element of res ipsa loquitur, Choi was not entitled to a res ipsa loquitur instruction.
Choi argues that the jury’s finding that Ardmore was negligent “confirm[s] [that she] established the first res ipsa loquitur element.” We disagree; the jury’s finding may have been only that Ardmore was negligent in its maintenance of the fire extinguishers.
Choi suggests that “it is a commonsense proposition that a fire does not erupt in a home in the absence of negligence.” Whether this is true is beside the point. Choi could never establish the second element of res ipsa loquitur if she is proceeding on the basis that a fire does not erupt in a home in the absence of negligence, as Choi cannot establish that her home was under the exclusive control of Ardmore. Clearly, there are numerous reasons why a fire may erupt in an apartment, many of which would be attributable to the conduct of the tenant.
In addition, we also note that a similar analysis shows that Choi failed to establish sufficient evidence of the second res ipsa loquitur element as well. The second element required Choi to introduce evidence that the fire was caused by an agency or instrumentality within the exclusive control of Ardmore. Here, Choi relies on evidence that installation and maintenance of the water heater were the responsibility of Ardmore. Yet Choi overlooks the fact that the fire may well have been caused by something in addition to the water heater. While the water heater’s pilot light provided the ignition source, that source ignited some fuel. That fuel may have been the water heater cabinet door (as argued by Choi) or leaking butane gas (as argued by Ardmore). While the first possible fuel was in the exclusive control of Ardmore, the second was not. In cases when there is conflicting evidence as to the cause of an accident, and some of those causes were not within the exclusive control of the defendant, the plaintiff is not entitled to a res ipsa loquitur instruction unless the plaintiff has established that defendant’s negligence was the more probable explanation. (Gicking v. Kimberlin, supra, 170 Cal.App.3d at pp. 76-78; Pappas v. Carson (1975) 50 Cal.App.3d 261, 267 268; Cunningham v. Coca-Cola Bottling Co. (1948) 87 Cal.App.2d 106, 111.) Having reviewed the evidence, we cannot say that Choi has established Ardmore’s negligence in inspecting and repairing the water heater was the more probable explanation for the fire. As between: (1) the water heater possessing some defect causing it to independently shoot a flame through a closed inner door, out the vent, and around a corner; and (2) the water heater igniting a butane tank, the latter explanation is equally, if not more, probable. Choi was therefore not entitled to a res ipsa loquitur instruction.
After Ardmore made this argument in its respondent’s brief, Choi’s reply brief did not respond with a different evaluation of the evidence. Instead, Choi simply argued that the cited cases are distinguishable because they involved a possible cause not under the defendant’s control while, in this case, it is undisputed that the water heater was involved, even if the fire was caused by a butane leak. But if the fire was caused by a butane leak, the water heater’s involvement (and, therefore, Ardmore’s) would have been completely without negligence. What matters is not whether the water heater provided the spark, but whether the evidence permits an inference that it did so due to negligent maintenance.
DISPOSITION
The judgment is affirmed. Ardmore shall recover from Choi its costs on appeal.
We Concur: KITCHING, J., ALDRICH, J
“1. That [Choi’s] harm ordinarily would not have happened unless someone was negligent;
“2. That the harm was caused by something that only [Ardmore] controlled; and
“3. That [Choi’s] voluntary actions did not cause or contribute to the events that harmed [her].
“If you decide that [Choi] did not prove one or more of these three things, then... you must decide whether [Ardmore] was negligent in light of the other instructions I have read.
“If you decide that [Choi] proved all of these three things, you may, but are not required to, find that [Ardmore] was negligent or that [Ardmore’s] negligence was a substantial factor in causing [Choi’s] harm, or both.
“You must carefully consider the evidence presented by both [Choi] and [Ardmore] before you make your decision. You should not decide in favor of [Choi] unless you believe, after weighing all of the evidence, that it is more probable than not that [Ardmore] was negligent and that [its] negligence was a substantial factor in causing [Choi’s] harm.”