Rule change on smoking evidence in fire damage cases.

eric-wlf@suddenlinkmail.com — Tue, 07 Sep 2010 18:46:00 GMT

Old Law:

In fact, any claim by the defendants about smoking being a possible cause of the fire is not even admissible in evidence. Doyle Wilson Homebuilder, Inc. v. Pickens, 996 S.W.2d 387, 395 (Tex.App. — Austin 1999, pet.dism.by agr.).

At the trial of the cause, the appellant proceeded with evidence showing that the appellee was in fact the tenant in apartment 110, that the appellee did smoke, and that the fire did start in a sofa in the living room of the apartment. The appellant also put on testimony by a Dallas Fire Department investigator that the fire in his opinion was caused by careless smoking on the sofa in question. At the close of the appellant's case, the appellee moved for a directed verdict.

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This motion for directed verdict was granted by the trial judge on the basis there was no probative evidence to support the submission of this negligence case to the jury, i.e., that the evidence was merely an inference on an inference. The sole point of error before us is whether the trial court erred in instructing a verdict for the appellee because sufficient probative evidence of appellee's negligence was presented by the appellant to create a fact issue for jury determination. We overrule appellant's point of error.

The appellant is attempting to prove his case by pyramiding inferences. The testimony shows that the appellee spent very little time during the morning in question near the sofa where the fire originated. There is testimony to place the appellee sitting on the opposite end of the sofa from which the fire started. No direct evidence shows appellee was smoking on the sofa during the morning in question. To find he was smoking on this sofa, the jury must infer it from the testimony regarding his smoking habits. Once indulging in this inference, then the jury must take another step and further infer that appellee was smoking carelessly. After making the second inference, the jury must make a third inference that such careless smoking was the cause of the fire.

There is no direct testimony allowing us to pyramid these inferences; consequently, we hold that the testimony in this case, at best, arouses a mere surmise or a suspicion of the negligence of the appellee. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898).

Systech Financial Corp. v. Vaughn, 558 S.W.2d 105 (Tex.Civ.App.— Tyler 1977, no writ)

New law:

Similarly, Dr. Beyler did not say why a burning cigarette could not have caused the fire. He dismissed as irrelevant the fact that post-mortem toxicology reports revealed that Charlie Merrell and Latosha Gibson had been smoking the very night of the fire because, according to Beyler, that evidence “d[id] not provide data relevant to the investigation of causes available in the area of origin.” If, by “area of origin” Beyler was referring to the recliner itself, he failed to address how he ruled out smoking materials on the basis of not having found evidence of burnt cigarettes there, when there was likewise no evidence of charred or exploded glass (either in the recliner or anywhere else in the house) to support his own theory. See Ramirez, 159 S.W.3d at 911 (describing the basis of the challenged expert's “limited opinion on causation” as equally consistent with the opposing expert's conclusion, and therefore non-probative).

Beyler did undertake to eliminate one potential cause of the fire that might otherwise seem on a par with the lamp theory. He explained why the melted candle wax and location of the candles precluded the candles as the source of the fire (pointing to the melted pool of wax on the table, which could not have survived the fire exposure if the candles themselves had ignited the fire). Yet he provided no explanation for why lit smoking materials could not have been the source. An expert's failure to explain or adequately disprove alternative theories of causation makes his or her own theory speculative and conclusory. See Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 470 (Tex.2005) (“[The expert] eliminated the obvious possibility that fuel or vapors from the tank filler neck ignited only by saying so, offering no other basis for his opinion. Such a bare opinion was not enough.”).

Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839-840 (Tex. 2010).

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