Wednesday, November 17, 2010

Where There's Fire, There's Smoke

New York Prop. Ins. Underwriting Assn. v. Hampton

(App. Term, 2nd Dept., 2nd, 11th & 13th Dists., decided 11/8/2010)

I don't get the Appellate Term, Second Department, sometimes. 

Defendant left a frying pan unattended on an on stove in his home, causing a fire. While the firefighters were fighting that fire, the defendant told his neighbor, Mrs. Poole, that she should go into her adjacent two-story home and close the windows on the second floor in order to prevent any water or smoke from getting into her residence.  She didn't heed his advice and although her home never caught fire, it nevertheless sustained $6,037.98 in damages from smoke and water that had entered the premises through those very same second floor windows. 

Mr. and Mrs. Poole's homeowners insurer paid those damages, brought this subrogation action against the defendant and moved for summary judgment.  In opposing that motion, defendant argued that because the Pooles did not re-enter their house to close their windows, a question of fact existed as to whether their failure to do so constituted comparative negligence precluding summary judgment. 

Kings County Civil Court (Kathy J. King, J.) granted plaintiff's summary judgment motion, and in a 2-1 decision the Appellate Term, Second Department, AFFIRMED, holding:
"[S]moke and water damage to adjacent property are foreseeable consequences of a fire, and plaintiff may recover for such damage if he established defendant['s] breach of duty and proximate cause" (Cuevas v Quandt's Foodservice Distribs., Inc., 6 AD3d 973, 974 [2004]; see Excelsior Ins. Co. v Auburn Local Dev. Corp., 294 AD2d 861 [2002]; Fontana Fabrics v Hodge, 187 AD2d 378 [1992]).  Here, it is undisputed that the source of the fire was a frying pan located on the stove in defendant's house.  In our view, under the circumstances presented, the Civil Court properly found as a matter of law that the insureds' alleged failure to close their windows while firefighters were fighting the blaze did not constitute culpable conduct on the part of the insureds so as to raise a triable issue of fact.  Accordingly, the order of the Civil Court granting plaintiff's motion for summary judgment is affirmed.
Justice Golia dissented, agreeing that plaintiff had established defendant's negligence, but believing that there existed material issues of fact on plaintiff's subrogors' comparative negligence sufficient to preclude the granting of plaintiff's motion for summary judgment:
Although it is undeniable that defendant's negligence created the fire, there are nevertheless other issues which must be resolved.  During the course of the fire being "fought" by the firefighters, the owner of this neighboring premises, according to her filed affidavit, instructed Ms. Poole to enter and close the windows on the second floor of her premises in order to prevent any water or smoke from getting into plaintiff's premises. Ms. Poole chose not to follow that advice. Subsequently, even though Ms. Poole's premises never caught fire, it nevertheless allegedly suffered from both smoke and water entering the premises through those windows.  I note that neither plaintiff's insured, nor plaintiff with personal knowledge, responded to this claim by denying that it ever happened; by asserting that Ms. Poole believed it was too dangerous to enter her house; by asserting that the firefighters prohibited Ms. Poole from entering her house; or by presenting any other reason why Ms. Poole had failed to protect her property and mitigate her damages.
The relatively minor amount of this claim probably reduces to nil the cost-effectiveness of prosecuting an appeal of the Appellate Term's split decision to the Appellate Division.  So is it now okay or reasonable, in a culpable conduct/comparative negligence sense, to stand by, watch and take no action to protect one's property from potential damages that: (1) were brought to one's attention; and (2) could easily have been avoided?  I don't think so. 

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