This article was originally published in the Subrogator, a publication by the National Association of Subrogation Professionals, Fall 2005, Page 18. © Copyright 2005 by NASP. All rights reserved. Republished by Butler Pappas with permission from NASP.
This case involves a subrogation action following payments made by a commercial property carrier to its insured as a result of a fire that occurred at an insured apartment complex located in Franklin County, Ohio. The fire occurred on January 28, 2003, after one of the tenants in the apartment complex placed hot ashes from his fireplace into a cardboard box, and then left the box unattended inside of his unit. Approximately 30 minutes later, a fire ignited. The tenant quickly called the fire department, who responded and extinguished the fire. The fire damage was confined to the tenant's unit which suffered approximately $10,000 worth of damage.
The apartment complex secured the scene and intended to begin repairs of the unit the following day. Approximately four (4) hours after the fire department extinguished the fire and left the scene, the fire rekindled and consumed a large portion of the insured apartment complex before the fire department was able to extinguish the fire. Following payments of $350,000 to the apartment complex pursuant to its commercial property policy, the insurance carrier filed a subrogation action against the tenant for the full amount of damages incurred.
Initially, Defendant refused to accept responsibility for causing the fire. But, as the case got closer to trial, the Defendant no longer disputed the cause of the fire and actually accepted responsibility for the damages caused by the first fire. However, the Defendant refused to accept liability for the second fire, contending that the acts of the fire department were an intervening cause, severing the chain of liability between the first fire and second fire.
Once it was apparent that both parties agreed as to the cause of the fire, both parties filed Motions for Summary Judgment with regard to the Defendant's liability for the damages caused by the rekindling of the fire. The Defendant contended that the negligent extinguishment of the first fire by the fire department was an intervening cause sufficient to break the chain of liability, and the subrogating Plaintiff contended just the opposite. Plaintiff's argument was that the fire department's failure to properly extinguish the fire was foreseeable; and since the Defendant was the party responsible for setting the chain of events in motion, the Defendant was responsible for all foreseeable damages incurred.
While other jurisdictions had case law that addressed this issue, Ohio had no case law whatsoever that addressed the negligence of the fire department as an intervening cause sufficient to break the chain of liability. In considering both parties' Motions for Summary Judgment, the Court relied on case law from beyond the state of Ohio, which held that the negligence of a fire department was not sufficient to separate the original negligent act from the damages incurred. The Court placed heavy emphasis on the fact that it is foreseeable that a fire may rekindle after being extinguished by the fire department. After citing multiple Ohio cases that address foreseeable damages related to negligent conduct in its ten page Order, the Court granted Plaintiff's Motion for Summary Judgment and denied Defendant's Cross-Motion. The Court concluded that the actions of the fire department in failing to completely extinguish the fire did not constitute a superseding cause sufficient to relieve the Defendant of liability. The Defendant was consequently found 100% liable.
This ruling suggests that at least one trial court in Franklin County, Ohio is following the trend that the negligence of a fire department while attempting to extinguish a fire is clearly foreseeable and will not serve as a superseding cause sufficient to relieve the original tortfeasor of liability for all of the damages incurred as a result of the original negligent conduct. A ruling to the contrary in jurisdictions that hold fire departments immune from suit would have an extremely harsh application and leave many injured parties with no avenue for recourse.