Union Mutual Fire Insurance Company v. Ace Caribbean Market et al
Filing
88
MEMORANDUM & ORDER: Defendants' motion for summary judgment 77 is granted in its entirety. The Clerk of Court is directed to enter judgment and close this case. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 9/30/2021. (Guy, Alicia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
UNION MUTUAL FIRE INSURANCE COMPANY,
Plaintiff,
MEMORANDUM & ORDER
18—CV-1570(EK)(ST)
-againstACE CARIBBEAN MARKET and NEERA
RAMDIN,
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:
This is a dispute over liability for a fire that
destroyed several buildings in Queens, New York.
The Plaintiff
is Union Mutual Fire Insurance Company, which insured four of
the fire-damaged buildings; it has asserted negligence claims
under New York law.
Defendants are ACE Caribbean, Inc., which
operated the grocery store in which the fire started, and the
owner of the building, Neera Ramdin; they now move for summary
judgment.
Because I find that the Plaintiff has adduced
insufficient evidence to create a genuine issue of fact on a key
element of its claims — namely, causation — I grant summary
judgment.
I.
Background
The following facts are drawn from the parties’ Local
Rule 56.1 statements, deposition transcripts, the Defendants’
1
expert reports, and other documentary evidence submitted by the
parties.
I read the evidence “in the light most favorable to
the party against which summary judgment is contemplated” —
namely, Union Mutual.
See NetJets Aviation, Inc. v. LHC
Commc’ns, LLC, 537 F.3d 168, 178 (2d Cir. 2008).
The parties agree that the massive fire originated on
ACE Caribbean’s premises.
They disagree, however, on its cause.
Plaintiff claims the fire started because ACE Caribbean misused
extension cords or “power strips” in the store, most likely to
power one or more refrigeration units that the parties call
“coolers” or “freezers” (collectively, “coolers”).
Based on
certain evidence described more fully below, Plaintiff argues
that the finder of fact could reasonably infer that one or more
of these coolers were plugged into a wall outlet through a
series of “low” or “light” gauge extension cords; that it was
unsafe to power the cooler (or coolers) this way, given the
electrical load they required; and that these extension cords
were the cause of the fire.
Defendants, for their part, contend
that the cause of the fire is indeterminable. 1
1 The insurance company for another damaged building sued Defendants for
negligence in New York Supreme Court, Queens County. That court denied
Defendants’ motion for summary judgment on the grounds that triable questions
of fact existed. See Amguard Ins. Co. v. ACE Caribbean Mkt., Inc., No.
703672, 2020 WL 7773548 (N.Y. Sup. Ct. Nov. 24, 2020) (supplying no further
explanation). The Amguard decision is on appeal to the Second Department.
2
1.
The ACE Caribbean Store
ACE Caribbean operated a grocery store on the first
floor of 110-14 Liberty Avenue in Queens.
110-14 Liberty was a
two-story, wooden-frame building that sat in the “middle of a
row” of similar buildings.
Defendants’ Notice of Mot. for
Summary Judgment Dismissing the Action Motion (“Defs.’ Mot.”)
Ex. A pt. 2, Exhibits to Fire Marshal Lewis Expert Disclosure
(“Lewis Disclosure Exs.”) at 74, ECF No. 77-5.
owned the building.
Neera Ramdin
Kaminie Singh, who owned ACE Caribbean,
leased the premises from Ms. Ramdin.
Singh employed a number of people to operate the
store.
Several of them were questioned extensively about the
store’s layout and use of electronics.
Those witnesses included
Kaminie Singh (the store owner), Ms. Ramdin (the landlord),
Hemwantie Singh (Kaminie’s mother and a full-time employee), and
Danesh Gobind (a part-time employee).
Reading the evidence in the light most favorable to
Union Mutual, the testimony established that the store had two
checkout counters — one in the front, and one in the back — each
with a variety of small electronic appliances (cash registers,
scales, and the like); two “display” coolers in the middle of
the store, at least one of which contained vegetables; another
cooler toward the righthand wall, as seen from the entrance,
containing beverages; and a fourth, “walk-in” cooler for storage
3
located outside the store’s back door, past an employees-only
area to the rear. 2
The witness testimony did not establish definitively
whether these appliances were connected to power via extension
cords.
But reading the evidence in the light most favorable to
the Plaintiff, (1) there were three “surge protectors” or “power
strips” in the store — one in the front, and two in the back,
Gobind Dep. 69:14-23; (2) the two coolers in the middle of the
store plugged into one of the two “surge protectors” or “power
strips” in the rear of the store, Kaminie Dep. 54:18-22; Gobind
Dep. 69:14-23, 80:9-19; and (3) there were no floor outlets near
at least one of the center coolers, or by the outdoor cooler,
that those coolers could have plugged into directly. 3
2.
The Fire and Ensuing Investigation
The fire started at approximately 10:52 p.m. on March
4, 2017.
No one was inside ACE Caribbean at the time, and no
Pl.’s Rule 56.1 Statement ¶ 42, ECF No. 78-1; see also Defs.’
Mot. Ex. G, Dep. of Denesh Gobind (“Gobind Dep.”) 29:1-17; 61:7-63:6, ECF No.
77-14; id. Ex. E, Dep. of Kaminie Singh (“Kaminie Dep.”) 10:19-24, ECF No.
77-12; id. Ex. F, Dep. of Hemwantie Singh (“Hemwantie Dep.”) 28:11-15, ECF
No. 77-13; Lewis Disclosure Exs. at 69 (“Interview Sheet” recording Fire
Marshal Lewis’s interview with Kaminie Singh).
2
3
Hemwantie Dep. 30:10-17 (did not recall seeing electrical wires
emanating from the outdoor cooler, and did not see outlets on the outside
wall nearby); Gobind Dep. 50:12-15 (“I’m not sure where [the outside cooler]
plugged in.”); id. 69:11-13 (no “outlets in the floor of the store”). Store
employees also left the coolers powered on overnight, including on the night
of the fire. Kaminie Dep. 56:2-4; Hemwantie Dep. 35:18-22; Gobind Dep.
42:15-21; id. 85:3-6; see also Gobind Dep. 27:4-8 (the “cooler in the back of
the store . . . always stays on”); id. 79:10-23; id. 80:23-81:1.
4
one in the vicinity was seriously harmed.
But four buildings
that Union Mutual insured were destroyed or damaged, along with
the ACE Caribbean building.
Amended Compl. at ¶ 11, ECF No. 45.
Union Mutual paid approximately $1.5 million in insurance
proceeds for damage to the five neighboring buildings, which it
seeks now to recover from ACE Caribbean.
Id.
Fire Marshal Matthew Lewis of the New York Fire
Department (“FDNY”) led the investigation into the cause and
path of the fire.
Marshal James Kelly was Lewis’s supervisor.
In its discovery disclosures pursuant to Rule 26 of the Federal
Rules of Civil Procedure, Plaintiff identified Lewis and Kelly
as “non-retained” expert witnesses.
Plaintiff’s theory of
causation is not clearly articulated, but Plaintiff relies
heavily (if not entirely) on Lewis’s “Fire Incident Report” — on
which Kelly signed off — to establish that element.
Kelly also
sat for a deposition, though his testimony was based largely on
Lewis’s findings.
Lewis was unable to fully investigate the ACE
Caribbean premises until March 21, when the FDNY used “heavy
machinery” to clear his path through the store.
Defs.’ Mot. Ex.
A pt. 3, Dep. of Matthew Lewis (“Lewis Dep.”) 55:24-56:4, ECF
No. 77-6 (“[T]he amount of fire that was in the building caused
the floor of the second floor and the roof to collapse down into
the first floor.
This is why it took so long to even put a
5
cause on it.”); see also Lewis Disclosure Exs. at 74.
During
this inspection, Lewis determined (based on burn patterns, among
other things) that the fire’s “area of origin” was in the back
of the ACE Caribbean store.
Id. 56:6-11.
When he was able to assess the scene at ACE Caribbean,
Lewis found a power strip in the store’s back-left corner with
“four or five” “low gauge” extension cords plugged into it.
56:14-18; see also id. 148:2-6.
Id.
Some of these extension cords
ran to the back counter area; one plugged into another extension
cord; and a third ran behind a bookcase, where it plugged into
“more electrical wiring.”
Lewis Disclosures Exs. at 78
(observing the “fire damaged remains of wires leading from power
strip towards the front of the store and terminating in the area
of . . . sales counter”); Lewis Dep. 123:2-12; 133:19-134:4
(observing one extension cord “leading away from the power strip
along the east party wall towards the rear of the store behind
wooden book case”).
There were other extension cords plugged
into extension cords in this area, though the power source for
these cords is unclear.
Id. 166:22-25 (there were “extension
cords plugged into extension cords, . . . completely separate
from the power strip,” and “one or two of [them] may have run
back towards the power strip”).
But Lewis was unable to
determine where most of these cords ran, or which appliances
they powered.
He did not indicate that any of the cords he saw
6
powered a cooler.
Cf. Lewis Dep. 130:21-131:4 (did not
determine where soda coolers on right-hand wall connected to
power source); id. 133:12-18 (he did not “see any outlets where”
the central open-top cooler “would have been plugged in, in the
floor”).
After discovering these cords, Lewis left the
premises; he explained that he cut the March 21 investigation
short due to the structural risks he faced.
Id. 56:4-57:8.
Lewis did not access this space again.
3.
The Fire Incident Report
On March 31, Lewis issued a Fire Incident Report (the
“FIR”) based on his investigation.
The FIR reports that the
fire “originated inside 110-14 in the rear of [ACE Caribbean] .
. . at floor level, in combustible material.”
Defs.’ Mot. Ex N
at 1 (“Fire Incident Report”), ECF No. 77-21.
It contains two
statements about the cause of the fire that are in some tension
with one another; each side invokes the statement it views as
more favorable.
Plaintiff points to Lewis’s notation that the
“cause of fire” was an “extension cord.”
Id.
This entry
corresponded to the “Numerical / Cause Code” “210,” which Lewis
selected from a prefilled menu on the report.
Lewis Dep.
162:20-25 (explaining that he chose this code and description
because “[w]e have limited . . . cause codes and titles that we
can use”).
Elsewhere on the FIR, however, in a box labeled
7
“Description (Specify if Accidental),” Lewis wrote: “NOT FULLY
ASCERTAINED DUE TO STRUCTURAL COLLAPSE.”
at 1 (capitalization in original).
Fire Incident Report
Defendants, not
surprisingly, focus on this statement.
At his deposition, Lewis testified that he reported
the cause was an “extension cord” because he “believed” that was
the source of the fire.
Lewis Dep. 57:20-25 (“[W]e believed it
was the extension cords.”).
Lewis arrived at that belief
because he found the “four or five light-gauge extension cords”
in the area where the fire began.
Id. 56:14-18.
Lewis
explained that, given the limited number of “cause codes”
provided, “I could either have used [the code for] extension
cords or wiring” in the Fire Incident Report.
Id. 162:20-23.
He ruled out the possibility that “hard wiring” caused the fire,
because “the outlet didn’t look damaged on the inside,” and the
burn patterns suggested the fire started “below the outlet.” Id.
58:2; 109:19-25.
Lewis explained, however, that he was unable to “fully
ascertain[]” the cause of the fire due to structural risks in
the building.
Id. 56:23-57:8 (“[W]e got to a point where we got
in, we were able to look at the outlet, we were able to find the
wiring and the damage we saw on the wiring and it came to a
point we decided it was more of a safety concern . . . [and] at
that point we said we are done”).
8
He explained that “we
couldn’t come up and say it was this extension cord . . . .
had the electrical back there.
We had the wiring.
We
The wiring
had damage, but to actually say that was exactly what caused the
fire . . . we couldn’t ascertain that.”
Id. 57:20-25; Defs.’
Mot. Ex. B. pt. 3, Dep. of James Kelly (“Kelly Dep.”) 107:14-18,
ECF No. 77-9 (“When we closed this case . . . it was the belief
that the fire was caused by a failed extension cord.
One of
those extension cords — we didn’t know which one . . . .”).
Lewis acknowledged that Kelly directed him to enter
the “NOT FULLY ASCERTAINED” language.
Lewis Dep. 230:20-24.
Lewis noted that the entry “could have been reworded as not
fully ascertained electrical wiring” or “not fully ascertained
in the area of extension cords.”
Id.
232:18-21.
But Lewis
“st[ood] by” Kelly’s recommendation, and would have put down
“not fully ascertained” even without Kelly’s input.
Id. 231:13-
15; id. 232:18-23 (“It would still stay not fully ascertained.
It could have been reworded as not fully ascertained electrical
wiring or not fully ascertained in the area of extension cords
. . . .”).
Lewis delivered the power strip and extension cords to
the FDNY for storage.
Id. 58:24-25:5.
Because the FDNY
determined the fire was “accidental,” it did not “send [the
devices] out for testing.”
Id. 58:7-24.
Defendants report that Plaintiff engaged an expert
9
witness of its own — an electrical consultant and engineer named
James Pryor, who told defense counsel that he intended to
examine the “wires” and other “artifacts” from the scene.
Decl.
of Dennis M. Rothman in Supp. of Defs.’ Mot. for Summary
Judgment Dismissing the Action ¶ 3, ECF No. 77-1.
Pryor did in
fact go to defense counsel’s office to obtain these items.
Id.
In the end, however, Plaintiff did not identify this expert as a
witness in discovery or produce any report from him.
Id. at
¶ 4.
4.
Defense Expert Testimony
The Defendants presented testimony and reports from
two expert witnesses: Eugene West (a former FDNY fire marshal)
and James Crabtree (an electrical engineer and certified fire
and explosion investigator).
Both experts determined that there
was no evidence that the Defendants were responsible for the
fire.
Defs.’ Mot. Ex. K, Dep. of Eugene West 85:17-22, ECF No.
77-18 (“[T]here’s no evidence [Defendants] did anything that
would have been contributory to the cause of this fire or may
have caused this fire.”); id. Ex. M, Dep. of James Crabtree
72:12-14, ECF No. 77-20 (”[T]here is no evidence that an
extension cord caused this incident.”).
II.
Legal Standard
Summary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact” and
10
that she “is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
A material fact is one that “can affect the
outcome under the applicable substantive law.”
Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
Graham v.
A genuine dispute is
one that can “reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
In
performing this analysis, the Court must resolve all ambiguities
and draw all inferences in favor of the non-moving party.
Gallo
v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219,
1223 (2d Cir. 1994).
“If, in this generous light, a material
issue is found to exist, summary judgment is improper.”
Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157,
160 (2d Cir. 1999) (citing Eastway Const. Corp. v. City of New
York, 762 F.2d 243, 249 (2d Cir. 1985)).
The moving party may establish that there is no
genuine dispute “by showing that little or no evidence may be
found in support of the nonmoving party’s case.”
Gallo, 22 F.3d
at 1223-24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)).
If the moving party meets this burden, the non-moving
party “must come forward with specific facts showing that there
is a genuine issue for trial.”
LaBounty v. Coughlin, 137 F.3d
68, 73 (2d Cir. 1998) (citing Rexnord Holdings, Inc. v.
Bidermann, 21 F.3d 522, 535-26 (2d Cir. 1994)).
However, the
non-moving party “must do more than simply show that there is
11
some metaphysical doubt as to the material facts, and may not
rely on conclusory allegations or unsubstantiated speculation.”
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)
(internal citations and quotations omitted).
If “no rational
finder of fact could find in favor of the nonmoving party
because the evidence to support its case is so slight, summary
judgment must be granted.”
Id. (internal quotations omitted).
III. Analysis
To succeed on a negligence claim, plaintiffs must
establish the familiar elements of “(1) duty; (2) breach of
duty; (3) proximate cause; and (4) damages.”
Bah v. Everlast
Logistics, LLC, 297 F. Supp. 3d 426, 431 (S.D.N.Y. 2018)
(internal quotations omitted).
Here, Defendants’ motion focuses on the third element,
causation, though they tend to conflate it at times with the
second.
For example, Defendants argue that Fire Marshal Lewis
“made no determination that the owner or the tenant of the
premises . . . used the power strip or extension cords
improperly.”
Defs.’ Mem. of Law in Supp. of Summary Judgment
Dismissing the Action at 10, ECF No. 77-2; (citing Lewis Dep.
191:25-192:12).
This determination would have been relevant to
the breach-of-duty element.
Likewise, Defendants argue that
Lewis was “unaware of any fire codes violated by the
defendants,” id. at 11; this argument, too, is directed at the
12
question of breach rather than causation.
I thus consider the
elements of breach and causation in turn.
A.
Breach
On the subject of a breach, Plaintiff lays out the
following syllogism: it is undisputed that there was at least
one cooler inside the store, and another one outside, with no
outlets near them.
These coolers must have been plugged into
outlets, and needed extension cords to reach them.
The only
electrical cords (or power strips) recovered on premises were
“low” or “light” gauge cords.
And Lewis testified that it would
be “unsafe” to use “extension cords plugged into extension
cords” to carry as much “amperage and voltage” as would be
required for “appliances . . . that need higher power.”
166:23–167:18.
Lewis
Therefore, the Defendants breached the
applicable duty of care.
There are potential problems with this syllogism.
There is no record evidence at all, for example, concerning the
actual amount of amperage or voltage that the coolers would have
required.
Lewis appears to be speaking, in the quoted passage
above, to a set of hypothetical circumstances rather than the
actual circumstances he witnessed.
But the Court does not need
to drill down on these breach-of-duty issues, because
Plaintiff’s evidence of causation is incontrovertibly
inadequate.
13
B.
Causation
Plaintiff argues that the “circumstantial evidence” in
this case “is legally sufficient to establish Defendants’
negligence as being responsible for the cause and origin of the
fire.”
Circumstantial evidence is, of course, admissible to
establish the cause of a fire.
See Minerals & Chem. Phillipp
Corp. v. S.S. Nat’l Trader, 445 F.2d 831, 832 (2d Cir. 1971)
(“By the very nature of a fire, its cause must often be proven
through a combination of common sense, circumstantial evidence
and expert testimony.”); N. Am. Specialty Ins. Co. v. Schwanter,
39 A.D.3d 511, 511-12 (2d Dep’t 2007) (denying summary judgment
on negligence claim brought by fire-insurance subrogee that
relied solely on circumstantial evidence); see also Holland v.
United States, 348 U.S. 121, 140 (1954) (“Circumstantial
evidence . . . is intrinsically no different from testimonial
evidence.”).
Regardless of the type of evidence a plaintiff relies
on, however, it must come forward with a certain quantum of such
proof.
Specifically, a plaintiff must “establish a reasonable
probability that the accident was caused by [Defendants’]
negligence” rather than some other cause.
Williams v. KFC Nat’l
Mgmt. Co., 391 F.3d 411, 420 (2d Cir. 2004).
In doing so,
plaintiffs need not “adduce the most reasonable explanation for
the accident” or “eliminate all other possible causes” for it.
14
Id.
Nor must they “rule out the existence of remote
possibilities that the injury was not caused by the defendant,
or that the defendant was not negligent.”
Olsen v. K Mart
Corp., No. 04-CV-3648, 2005 WL 2989546, at *5 (E.D.N.Y. Nov. 8,
2005).
But the trier of fact still must be able to determine
the cause of the injury as a matter of “logical inference.”
Schneider v. Kings Highway Hosp. Ctr., Inc., 67 N.Y.2d 743, 744
(1986).
This means that alternative causes must be sufficiently
“remote” that a fact-finder could discredit them without
resorting to “speculation.”
Id.
Here, Plaintiff relies heavily on the report and
testimony of Fire Marshal Lewis to establish causation.
But
this evidence does not come close to satisfying Plaintiff’s
burden.
Marshal Lewis testified that he could not opine with
confidence on the cause of the fire.
Given the Marshal’s candid
acknowledgment of uncertainty and the dearth of other evidence
tending to show causation, the negligence claim cannot survive
summary judgment.
“Where the evidence . . . is capable of an
interpretation equally consistent with the presence or absence
of a wrongful act, that meaning must be ascribed which accords
with its absence.”
Prunier v. City of Watertown, 936 F.2d 677
(2d Cir. 1991) (quoting Lahr v. Tirrill, 274 N.Y. 112, 117
15
(1937)).
As the court explained in Bernstein v. City of New
York:
Where the facts proven show that there are
several possible causes of an injury, for one or
more of which the defendant was not responsible,
and it is just as reasonable and probable that
the injury was the result of one cause as the
other, plaintiff cannot have a recovery, since he
has failed to prove that the negligence of the
defendant caused the injury.
69 N.Y.2d 1020, 1021 (1987) (internal quotations and citations
omitted)).
Here, Lewis’s report and testimony cannot fairly be
read to support the conclusion for which Plaintiff relies on
them.
And it allows for other possible causes — like a
manufacturing defect — that are just as reasonable.
Lewis did list “Extension Cord” in the “Cause of Fire”
field in his Fire Incident Report (on which Kelly signed off).
Fire Incident Report at 1.
But immediately below that, in the
“Description” field, Lewis qualified that statement: “NOT FULLY
ASCERTAINED DUE TO STRUCTURAL COLLAPSE.”
Id.
In his deposition
testimony, Lewis acknowledged having reported (in the FIR) that
“the extension cord” was the cause of the fire.
183:13-19.
Lewis Dep.
But Lewis maintained that he was, in the end, unsure
about the fire’s precise cause:
Q.
If you were sure if it was actually the
extension cord, would you have listed that in your
report?
16
A.
Yes.
Q.
If you were sure it was the power strip, you
would have listed that in your report?
A.
Yes.
Q.
But in this case, since you didn’t list it,
it’s safe to say you couldn’t ascertain that’s exactly
what happened?
A.
Right.
Id. 186:4-15.
Moments later, Lewis confirmed that he “couldn’t make
that determination” as to “what caused the fire.”
14.
Id. 191:10-
Asked whether he ever “determine[d] any evidence of any
nature that there were any problems ever with the extension cord
or power strip,” he confirmed that he had not.
Id. 191:16-24.
Kelly, too, testified that the FDNY could not determine the
actual cause of the fire.
Kelly Dep. 64:9-24 (“I feel quite
sure that the fire started in that area; other than that, I
can’t tell you what failed or why.
I believe it was not fully
ascertained.”); id. 69:17-25 (confirming “there’s no certainty
with respect to the cause” of the fire, and that the FIR said it
“was a failure in the wires because there was nothing else there
except the wires, and that’s why it’s not fully ascertained
because we really don’t know.”).
Indeed, Lewis testified that
he selected the “extension cord” designation because he was
17
hamstrung by the list of available codes he could choose, and
the only code that made sense was the extension-cord code.
Lewis Dep. 162:20-163:14 (explaining that “[w]e have limited
. . . cause codes and titles that we can use,” his only options
were “extension cords or wiring,” and he ruled out “wiring”
because that meant “hard wiring in the walls and ceilings,”
which he had no evidence to support).
This is not testimony from which a reasonable trier of
fact could determine that the misuse of extension cords was
“more likely than not” the cause of the fire.
It simply does
not “establish a reasonable probability that the accident was
caused by [Defendants’] negligence” rather than some other
cause.
Williams, 391 F.3d at 420; see also Ongley v. St. Lukes
Roosevelt Hosp. Ctr., 725 F. App’x 44, 47 (2d Cir. 2018)
(expert’s “causation theories were too speculative to survive
summary judgment” because he was “unable to state to any
reasonable degree of medical certainty which of . . . three
possibilities caused the injury”).
This is true even at the
high level of Lewis’s conclusion — before taking up Plaintiff’s
burden to “come forward with specific facts showing that there
is a genuine issue for trial.”
LaBounty, 137 F.3d at 73.
Indeed, the more Lewis’s deposition delved into the
realm of specific facts, the more Lewis undermined the
Plaintiff’s contention.
Asked, for example, if it was “possible
18
that the [extension] cord could have had a manufacturing
defect?”, Lewis responded “Very well could have, yes.”
Dep. 187:17-21.
Lewis
Lewis acknowledged that he could not “determine
with a reasonable degree of fire science certainty” whether or
not the extension cord was “overloaded.”
Id. 187:7-11; see also
id. 189:8-21 (Lewis was uncertain whether an overload occurred,
because he was unable to ascertain what was plugged into the
power strip). 4
Put simply, neither Fire Marshal conclusively
determined the source of the fire.
They opined that it could
have been the extension cord, but given the facts before them,
they were ultimately unsure.
And they acknowledged, repeatedly,
that other causes were possible.
This evidence does not raise a
genuine issue of fact as to causation.
Olsen, 2005 WL 2989546,
at *5 (no causation “where it is just as reasonable and probable
that the injury was the result of” another cause). 5
Plaintiff’s
4
None of this, needless to say, is to impugn either of the Fire
Marshals’ expertise. Indeed, their candid acknowledgments of uncertainty
reflect obvious professionalism and care. This opinion cites their
acknowledgments of uncertainty simply to explain why the Plaintiff cannot
carry its burden at the summary judgment stage in reliance solely on their
analysis.
5
To the extent Plaintiff relies on its logical syllogism (separate and
apart from Lewis’s testimony), the evidence of causation remains insufficient
to surpass summary judgment. The relative placement of extension cords and
appliances in the store, including coolers, does not make the misuse of
extension cords more likely a cause than other alternatives, including, for
instance, design or manufacturing defects in the cords themselves. Lewis
Dep. 187:17-21 (cause “very well could have” been manufacturing defect).
19
negligence claims against ACE Caribbean and its owner, Ms.
Ramdin, are therefore dismissed.
IV.
Conclusion
For the reasons set out above, Defendants’ motion for
summary judgment is granted in its entirety.
The Clerk of Court
is directed to enter judgment and close this case.
SO ORDERED.
/s Eric Komitee___________________
ERIC KOMITEE
United States District Judge
Dated:
September 30, 2021
Brooklyn, New York
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