Issue: How much evidence of causation must a plaintiff produce to survive summary judgment?
Facts: Owners hired Contractor to build a house, which hired Subcontractor to finish the stain on the floors. Shortly before completion, the house burned down. Owners asserted that the fire started due to Subcontractor tossing cigarettes near flammable rags left on an exterior deck. The trial court granted summary judgment to the Contractor and Subcontractor.
Appellate Decision: In a 2-1 vote, a majority of the Court of Appeals held that there was a question of fact as to whether Subcontractor’s negligence caused the fire, such that summary judgment is not appropriate. Although no conclusive evidence was ever obtained, Owners’ expert testified that spontaneous combustion of the rags could have caused the fire, and circumstantial evidence provided a plausible factual scenario. Judge Susano, dissenting, wrote that Owner could not produce sufficient evidence to support “but for” causation: “the word ‘could’ involves a ‘possibility’ while ‘but for causation’ requires ‘more likely than not’ evidence. A possibility is not enough to make out a genuine issue of material fact.”
Review Granted: April 6, 2016.
Prediction: Ben thinks the supreme court will find in favor of Owners and affirm the reversal of summary judgment. This appears to be a close case and Judge Susano is correct that a plaintiff must show more than a mere “possibility.” However, the expert’s conclusion that Subcontractor “could” have caused the fire was buttressed with factual allegations that Subcontractor tossed cigarettes on flammable rags, from which a jury could reasonably conclude Subcontractor more likely than not caused the fire, especially in the absence of other possibilities.