Summary Judgment Affirmed Where Causation Supplied by Net Opinion
A New Jersey appellate court recently affirmed a trial court’s summary judgment dismissing a negligence action where plaintiff’s theory of causation was only supported with an expert’s net opinion. Sayta Sankalp, LLC v. Five Star Auction (opinion here). In the case, plaintiff sued defendant for damages to real property caused by fire. The parties were adjoining tenants in a strip center in Salem (NJ), and a fire broke out in the warehouse portion of defendant’s lease-hold late one night, which ultimately caused fire damage to plaintiff’s property. Plaintiff alleged that the fire was caused by defendant’s negligence.
Plaintiff’s causation theory – careless smoking – was supplied by an expert. The expert inspected the premises, and interviewed three of defendants’ employees who were present in the warehouse about 3 hours before the fire ignited. There was no physical evidence to support a claim that anyone had smoked in the warehouse; and no physical evidence of smoking material near the point of origin. The only evidence was plaintiff’s expert’s testimony that one of the employees present before the fire said that he had observed people smoking in the warehouse.
The evidence showed that there was a strict no smoking policy in the warehouse, and all three employees denied smoking or observing smoking in the warehouse. The employees left the warehouse at 8:00 p.m. The smoke and fire alarms alerted almost simultaneously at about 11:15 p.m. that night. According to defendant’s expert, that time-frame is inconsistent with a “careless smoking” fire, which would take much longer to ignite, and would normally be preceded by a smoke alarm, not simultaneous smoke and fire alarms.
The appellate court summarized the evidence in support of its affirmance of summary judgment dismissal:
“The record shows smoking was not permitted in defendant’s warehouse, the employees were aware of this rule, and all denied seeing anyone smoke in the building. While Cossadoon was a smoker, he left by 8 p.m., well over three hours before the fire set off the fire alarm. Without proof, Oakley’s conclusion that the fire’s cause was careless smoking is, at best, an educated
guess, but does not rise to the level of an opinion stated with reasonable scientific certainty.” (Slip op. at 10.)
While the evidence was disputed as to whether the employee observed smoking int he warehouse, that fact alone did not raise a genuine issue of material fact. Thus, without more, the trial court was unwilling to allow opinion testimony on causation, and without a viable theory as to the cause of the fire, summary judgment dismissal of the negligence claim was appropriate.
