In the early morning hours of September 23, 2007, while gamblers at the Borgata Hotel & Casino were doubling down and reaching for a fresh cup of coffee, a mysterious fire was breaking out yards away at the Water Club, a hotel and spa complex under construction next to its main hotel in Atlantic City, NJ. The fire ripped through a façade located on the south side of the structure and extended from the 3rd floor to the 38th floor. According to witness statements and surveillance video, the first visual fire occurred on the 3rd floor (the base of the façade) and rapidly engulfed the entire façade. The Borgata claimed that the fire caused actual damage totaling $80 million.
The investigation into the fire by the Atlantic City Fire Department initially pointed to arson, and there was a contention that a laborer started the fire so that he could leave work early to catch an Eagles’ game. While plausible, the fire investigators also looked into the theory that the fire might have been started by sparks from welders working on the roof of the Water Club. However, after the Fire Marshall and the Bureau of Alcohol, Tobacco, Firearms and Explosives Fire Research Laboratory (ATF) conducted a series of fire tests on the alucobond panels ignited in the fire, they concluded that a spark traveling more than 400 feet from the hotel’s rooftop could not have produced enough heat to start the fire at the base of the hotel. Ultimately, the cause of the fire remained undetermined.
Borgata collected $40 million from its property insurers, and filed suit in the Superior Court of New Jersey, Atlantic County, against a number of contractors and subcontractors involved in the design and construction of the Water Club. The Plaintiff proceeded on a theory of negligence and res ipsa loquitur.
The doctrine of res ipsa loquitur has been held both applicable and inapplicable in various jurisdictions arising from an open flame or smoldering slag generated from a welder’s torch. The general rule in New Jersey is that res ipsa loquitur is not applicable in fire cases. The doctrine of res ipsa loquitur permits the inference of a defendant’s negligence where: 1) the occurrence itself ordinarily bespeaks negligence; 2) the instrumentality was within the exclusive control of the defendant; and 3) there is no indication in the circumstances that the injury was the result of the plaintiff’s own act or neglect. Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 269 (1958). Where applicable, the doctrine establishes a prima facie case by allowing a jury to infer negligence. The inference is permissive and it does not shift the burden of persuasion to the defendant. Rather, the defendant must simply offer an explanation, not an “exculpation.” Kahalili v. Rosecliff Realty, Inc., 26 N.J. 545, 606 (1958).
In the context of fire cases, New Jersey Courts have infrequently applied the doctrine of res ipsa loquitur because the cause of a fire is “generally unknown” and because “fires commonly occur where due care has been exercised as well as where due care was wanting”. Menth v. Breeze Corp., Inc., 4 N.J. 428, 436-36 (1950). In Menth, the New Jersey Supreme Court stated:
The general rule, however, is that the destruction of property by fire, either on premises where it starts, or upon other property to which it is communicated, does not of itself raise a presumption of negligence in either the kindling or management of the fire unless there are special circumstances present that lead to a reasonable conclusion that due care was wanting.
Menth, quoting 22 Am.Jur. (Fires) s 78, p.644. The Court further stated that it is vital that a plaintiff demonstrate:
…that in all probability the direct cause of the injury and so much of the surrounding circumstances essential to its occurrence were in the exclusive control of the defendant, or his agents or servants.
In case of fire the rule requires that the actual cause of it must have been under the exclusive control of the party charged with negligence. Under the testimony before us the fire may have resulted from one or more of several causes, including the acts of third parties or strangers over whom defendant had no control. Mere possession of the premises and shed from which the fire spread is not a basis for the application of the res ispa loquitur rule.
Menth, at 436-37 (emphasis added). In Menth, because there was testimony that the fire, which began in a shed on an adjoining lot and spread to plaintiff’s apartment building, may have started due to the acts of some third party, the Court declined to apply the doctrine of res ipsa loquitur.
There are no New Jersey cases dealing with the specific issue of a fire caused by welding; however, other jurisdictions have dealt with this issue, primarily with respect to the use of acetylene torches. As indicated by Menth, the cases turn on whether or not plaintiff can show that the defendant had exclusive control over the cause of the fire, and whether there is evidence that the fire could have started from another cause.
In Talbert v. Tyler, 121 So. 2d 854 (1960), a fire occurred on plaintiff’s property while a pipeline was being constructed. The construction crew used a welding machine during construction, but there was no evidence that the welders caused the fire. The Court focused on the fact that the evidence “does not eliminate the possibility that the fire may have been started by a trespasser, a hunter, or persons unknown, or through some unknown cause.” Id., at 856.
Similarly, where the cause of a fire is unknown, the doctrine of res ipsa loquitur is generally held not to be applicable. See Royal Ins. Co. v. United Parcel Serv., Inc., 147 FRD 15 (1992, ED NY) (Insurer was not entitled to a new trial in a subrogation action based on the trial court’s failure to instruct the jury on res ipsa loquitur where there was conflicting evidence concerning the cause of the fire because it was not established that the fire would probably not have occurred in the absence of negligence.)
As for the Borgata action, some defendants have settled, some have been granted summary judgment, while others remain in the case. The case is expected to go to trial sometime in late 2013. Since the general rule in New Jersey is that the doctrine of res ipsa loquitur is not applicable to fire cases, Borgata’s creative use of experts will be critical to establishing liability among the contractors and subcontractors.