Jenkins v. Big City Remodeling

515 S.W.3d 843

Ewin B. JENKINS et al.

v.BIG CITY REMODELING et al.

No. E2014-01612-SC-R11-CV

Supreme Court of Tennessee, AT KNOXVILLE.

September 8, 2016 Session

Filed April 5, 2017

Clinton J. Woodfin and Douglas R. Bergeron, Knoxville, Tennessee, for the appellants, Henson & Associates Flooring, Inc. and Julian Luu, doing business as Quality Hardwood Floors.

Ellis A. Sharp and Jon M. Cope, Knoxville, Tennessee, for the appellee, Big City Remodeling.

Arthur G. Seymour, Jr. and Matthew A. Grossman, Knoxville, Tennessee, for the appellees, Ewin B. Jenkins and Janet B. Jenkins.

Sharon G. Lee, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Holly Kirby, and Roger A. Page, JJ., joined.

OPINION

Sharon G. Lee, J.

At issue in this appeal is the liability of a general contractor and two flooring subcontractors for damages sustained by the plaintiffs when a fire destroyed their partially completed house. The plaintiffs alleged that the negligence of the general contractor and the subcontractors caused the fire and that the general contractor had breached the construction contract. The trial court granted summary judgment to the general contractor, holding that the plaintiffs could not rely on res ipsa loquitur to establish an inference of negligence; granted summary judgment to the subcontractors based on the plaintiffs' failure to prove that any negligence of the subcontractors caused the fire; and granted summary judgment to the general contractor based on evidence that the plaintiffs were the first party to materially breach the construction contract. The Court of Appeals, in a divided opinion, affirmed summary judgment to the general contractor based on the inapplicability of res ipsa loquitur; and reversed summary judgment to the subcontractors on the negligence claim and to the general contractor on the breach of contract claim, finding genuine issues of disputed material fact. We hold that the plaintiffs cannot rely on res ipsa loquitur because they did not produce sufficient evidence that the general contractor was in exclusive control of the specific cause or all reasonably probable causes of the fire. We further hold that the plaintiffs did not produce sufficient evidence to establish that any negligence of the subcontractors was the cause in fact of the fire. For these reasons, the general contractor and flooring subcontractors are entitled to summary judgment on plaintiffs' claims based on negligence and breach of contract. We affirm the trial court's grant of summary judgment.

I.

In October 2011, Ewin B. Jenkins and Janet B. Jenkins contracted with Big City Remodeling to construct a house in Sevier County. Big City Remodeling subcontracted the hardwood flooring work to Henson & Associates Flooring, Inc., who subcontracted the work to Julian Luu, doing business as Quality Hardwood Floors.

On October 31, 2012, the partially completed house and its contents were destroyed by fire. The plaintiffs, Mr. and Mrs. Jenkins, sued the general contractor, Big City Remodeling, and the flooring subcontractors, Henson & Associates Flooring, Inc. and Julian Luu, doing business as Quality Hardwood Floors, for damages. The plaintiffs alleged that the fire was caused by the negligence of the general contractor and the subcontractors. The plaintiffs relied on res ipsa loquitur to establish an inference of negligence as to the general contractor. The plaintiffs also asserted that the general contractor breached its contractual obligation to perform in a workmanlike manner based on the alleged negligence of the subcontractors.

The general contractor filed motions for summary judgment, arguing, in part, that the plaintiffs could not prove the general contractor was negligent and had exclusive control over the premises. The general contractor relied on deposition testimony of the plaintiffs' expert witnesses that the fire started on Halloween night, a time when a lot of fires occur, including fires that are intentionally set; the fire started on the outside of the house on the back deck; the cause of the fire could not be determined; and possible causes of the fire were arson, improperly discarded cigarettes, electrical issues, and spontaneous combustion of rags. The general contractor further relied on deposition testimony and statements that the property was not fenced; anyone could have accessed the back deck where the fire started; the general contractor did not have exclusive control of the deck; and the plaintiffs and other construction workers had access to the house. The general contractor also contended that plaintiffs' breach of contract claim failed because the plaintiffs were the first party to materially breach the contract due to their failure to obtain builder's risk insurance.

The plaintiffs responded, in part, that at the time of the fire, the general contractor had or should have had exclusive control of the property and control of the job site; on the day of the fire, the plaintiffs were not on the property and did not have control of the job site; the general contractor could have installed a fence around the property; there was no credible evidence of arson; and the failure of the plaintiffs to purchase insurance coverage was not a material breach of the contract.

The subcontractors filed a motion for summary judgment, arguing the plaintiffs could not show that the conduct of the subcontractors was the cause in fact of the fire. The subcontractors relied on deposition testimony and statements from the plaintiffs' expert witnesses that the fire started on the rear exterior of the house; the cause of the fire could not be determined; arson could not be ruled out as a possible cause of the fire; the fire occurred on Halloween night when a lot of fires occur, including fires that are intentionally set; other possible causes of the fire included improperly discarded cigarettes, electrical issues, and spontaneous combustion of rags; and there was no evidence of cigarette butts in the back yard. In addition, the subcontractors relied on statements that no combustible materials were located at the point where the fire started; subcontractor Mr. Luu did not store any materials on the back deck; the property was not fenced and the back deck was accessible to anyone; explosive materials, such as polyurethane, paint thinner, and Rust-Oleum were stored in the garage; improperly discarded rags were found in a dumpster located across the street from the house; a number of other construction workers were on the job site the week of the fire and knew the location of a key hidden at the back of the house; and a painting subcontractor was working at the house on the day of the fire.

The plaintiffs responded with deposition testimony and statements that, on the day of the fire, subcontractor Mr. Luu and/or his crew handled flammable substances in the vicinity of the garage and back porch; on the day of the fire they had smoked cigarettes in the vicinity of the garage and were the only people known to smoke on the premises; on previous days, they had smoked cigarettes in the area of the back deck; they used rags to apply stain to the floors, which they admitted could have started the fire if improperly discarded; they were the last people to leave the house on the day of the fire; they locked the house when they left; it is unlikely an arsonist could have approached the house without being seen on a neighbor's surveillance camera; there was no positive evidence that arson caused the fire; and on the day of the fire, the plaintiffs were not on the property.

The trial court granted the general contractor and subcontractors' motions for summary judgment, finding res ipsa loquitur was not applicable to establish an inference of the general contractor's negligence because the plaintiffs failed to show that they were injured by any instrumentality that was within the exclusive control of the general contractor and failed to prove the cause of the fire. The trial court further determined there was no genuine issue of material fact with regard to the allegations of negligence as to the general contractor and the subcontractors; there was no proof as to the cause of the fire; and the breach of contract claim failed because plaintiffs had materially breached the contract by not acquiring builder's risk insurance before any alleged breach by the general contractor occurred. The plaintiffs appealed.

A majority of the Court of Appeals affirmed in part and reversed in part the trial court's decision. Jenkins v. Big City Remodeling , No. E2014-01612-COA-R3-CV, 2015 WL 5695177 at *1 (Tenn. App. Sept. 29, 2015). The Court of Appeals agreed with the trial court that res ipsa loquitur did not apply because the plaintiffs failed to prove that the premises were within the general contractor's exclusive control, that a duty to exercise exclusive control existed by the terms of the construction contract, or that the premises were inaccessible by other parties, including the general public. Id. at *6. The Court of Appeals reversed the trial court's decision regarding causation, finding disputed questions of material fact regarding the negligence of the subcontractors based on evidence that they had improperly disposed of flammable rags and cigarette butts and whether their negligence caused the fire. Id. at *8. Based on this ruling, the Court of Appeals reversed summary judgment as to the plaintiffs' breach of contract claim, finding there were disputed issues of material fact as to whether the plaintiffs had first materially breached the contract. Id. at *9–10. Chief Judge Charles D. Susano, Jr. concurred in part and dissented in part, concluding that the plaintiffs produced evidence that the conduct of the subcontractors possibly caused the fire but failed to submit proof that their conduct more likely than not caused the fire. Id. at *11 (Susano, C.J., dissenting). For this reason, he would have affirmed the trial...