                                                                  FILED
                                                                 MAY 5, 2020
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

EDWIN WELLS; ANN MINOR; and                   )         No. 36602-2-III
GEORGE WELLS FAMILY TRUST,                    )
                                              )
                     Appellants,              )
                                              )
       v.                                     )         PUBLISHED OPINION
                                              )
NESPELEM VALLEY ELECTRIC                      )
COOPERATIVE, INC., a Washington               )
corporation,                                  )
                                              )
                     Respondent.              )

       PENNELL, C.J. — An electrical fire traced to equipment owned by Nespelem

Valley Electric Cooperative, Inc. (NVEC) destroyed the rural home and other property of

Edwin Wells, Ann Minor, and the George Wells Family Trust (collectively the Plaintiffs).

According to the Plaintiffs, NVEC’s electrical pole and equipment were old and cracked,

making them susceptible to electrical leakage and combustion. The Plaintiffs sued NVEC

under theories of general negligence and res ipsa loquitur. The case went to trial. Before a

jury could render judgment, the trial judge issued a directed verdict in favor of NVEC.

We reverse. Because the Plaintiffs presented evidence linking the fire not only to

NVEC’s equipment, but also to the utility’s neglected maintenance, the case should have

been resolved by a jury. The matter is remanded for trial.
No. 36602-2-III
Wells v. Nespelem Valley Elec. Coop., Inc.


                                      BACKGROUND

       The fire at the Plaintiffs’ property began around noon on a clear day in late

summer. Both Edwin Wells and Ann Minor were home at the time. Mr. Wells first

noticed something amiss when a smoke detector began to chirp and wisps of smoke were

observed in his home’s back bedroom. Mr. Wells stepped outside and saw flames coming

from a woodshed on his property. The woodshed was located approximately eight feet

from an electrical pole.

       The electrical pole belonged to NVEC. It had been installed in the early 1970s,

around the time Mr. Wells moved to the property. NVEC supplied all electrical

equipment associated with the pole, including a transformer, power line, and meter. 1

Over the decades, Mr. Wells observed NVEC employees arrive “every month and read

the meter.” Report of Proceedings (Jan. 15, 2019) at 11. However, apart from replacing

the meter, Mr. Wells never observed NVEC update any of its equipment.

       Mr. Wells tried to extinguish the fire himself, but was unsuccessful. Firefighters

arrived on the scene and Mr. Wells and Ms. Minor left thereafter for evaluation of Ms.

Minor for possible smoke inhalation. Efforts to save the home were unsuccessful. While

Mr. Wells and Ms. Minor were away, representatives from NVEC arrived to disconnect



       1
           The meter was installed on a separate pole located closer to the home.

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Wells v. Nespelem Valley Elec. Coop., Inc.


the power and take down the electrical pole. After a transformer on the pole cooled down,

NVEC removed the transformer and wires from the property, pursuant to standard

protocol. Other components of the electrical service were left on site.

       Several days after the fire, Okanogan County Sheriff’s Detective Kreg Sloan

conducted an investigation at the Plaintiffs’ property. Detective Sloan ruled out several

possible causes of the fire. The weather had been stable; thus, the fire could not have

been started by lightning. There was no evidence of unauthorized persons or accelerants;

thus, eliminating the possibility of arson. And there was no indication the fire could have

been started by a domestic or wild animal. Rather than any of the foregoing, Detective

Sloan attributed the cause of the fire to the electrical service associated with NVEC’s

power pole.

       Detective Sloan identified the source of the fire based on burn patterns left on the

electrical pole. The pole’s most severe charring was located on the top and bottom. The

middle showed less damage. According to Detective Sloan, this indicated the fire started

at the top of the pole, in the location of the service lines. Then burning embers dropped to

the earth, causing a conflagration on the ground below.

       In addition to describing where the fire started, Detective Sloan opined as to how

the fire started. Detective Sloan found a ceramic insulator attached to the top of the power

pole. The insulator was old and cracked. Detective Sloan posited that electricity from the

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Wells v. Nespelem Valley Elec. Coop., Inc.


power line leaked through the insulator to the power pole. Because the wooden pole was

also old and cracked, it was ripe for combustion. On the day of the fire, sustained

electrical leakage caused smoldering on the wooden pole and then a fire. Once the pole

was on fire, flames spread to the rest of the property. 2

       Armed with the information from Detective Sloan’s investigation, the Plaintiffs

filed suit against NVEC, alleging liability for the fire on grounds of general negligence.

The Plaintiffs theorized NVEC breached its duty of care by failing to maintain its power

line and equipment. They also claimed relief under a theory of res ipsa loquitur.

       The case proceeded to trial. At the close of the Plaintiffs’ case, the trial court

granted NVEC’s motion for a directed verdict. According to the trial court, the Plaintiffs

failed to demonstrate NVEC had done anything wrong. Thus, there was insufficient

evidence to support liability under a general negligence theory. The trial court also

rejected the Plaintiffs’ argument for res ipsa loquitur. The court reasoned that fires




       2
         NVEC disputed Detective Sloan’s analysis. According to NVEC, the insulator
cracked when the power pole was pulled to the ground. In addition, NVEC proffered the
insulator identified by Detective Sloan serviced a neutral line, not an active line (known
as a phase wire); thus, it could not have contributed to electrical leakage. Given the
applicable standard of review, we credit Detective Sloan’s testimony, not the theories
proffered by NVEC. Paetsch v. Spokane Dermatology Clinic, P.S., 182 Wn.2d 842, 848,
348 P.3d 389 (2015).

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Wells v. Nespelem Valley Elec. Coop., Inc.


can have many causes, several of which are not attributable to negligence. Given this

circumstance, the trial court ruled the res ipsa loquitur standard was unmet.

       The Plaintiffs appeal.

                                         ANALYSIS

Standard of review

       A trial court’s entry of a directed verdict is reviewed de novo. Paetsch v. Spokane

Dermatology Clinic, P.S., 182 Wn.2d 842, 848, 348 P.3d 369 (2015). All facts are

construed in the light most favorable to the nonmoving party. Id. A directed verdict will

be affirmed only if there is no legally sufficient evidentiary basis for a contrary result.

Chaney v. Providence Health Care, 176 Wn.2d 727, 732, 295 P.3d 728 (2013).

General negligence

       A claim of general negligence has four elements: (1) duty, (2) breach, (3) damages,

and (4) proximate cause. Brugh v. Fun-Tastic Rides Co., 8 Wn. App. 2d 176, 180, 437

P.3d 751, review granted in part, 194 Wn.2d 1001, 451 P.3d 339 (2019). The first

element is a question of law, the remaining three involve questions of fact. Briggs v.

Pacificorp, 120 Wn. App. 319, 322, 85 P.3d 369 (2003).

       NVEC does not dispute it owed a duty to the Plaintiffs. Indeed, because of

electricity’s potential dangers, NVEC, as a supplier of high voltage electricity, owed the



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Wells v. Nespelem Valley Elec. Coop., Inc.


Plaintiffs “the highest degree of care.” Estates of Celiz & Sanchez v. Pub. Util. Dist.

No. 1 of Douglas County, 30 Wn. App. 682, 685, 638 P.2d 588 (1981). Rather than duty,

NVEC’s dispute focuses on the factual issue of whether the Plaintiffs presented evidence

of breach.

       Although perhaps thin, the evidence presented at trial was sufficient to support a

claim of breach. Testimony from Mr. Wells and Detective Sloan indicates NVEC failed

to maintain the power pole and insulator on the Plaintiffs’ property. According to Mr.

Wells’s testimony, the pole and related equipment were approximately 40 years old.

Detective Sloan testified the pole and the insulator were both cracked, making them

susceptible to electrical leakage and combustion. Representatives from NVEC regularly

visited the Plaintiffs’ property to read, and at some point replace, the meter. By failing to

maintain the electrical pole and related service equipment in good working order, the

facts alleged by the Plaintiffs indicate NVEC breached its duty to maintain its electrical

systems with “‘the utmost care and prudence. ’” Keegan v. Grant County Pub. Util. Dist.

No. 2, 34 Wn. App. 274, 279, 661 P.2d 146 (1983) (quoting Scott v. Pacific Power &

Light Co., 178 Wash. 647, 650, 35 P.2d 749 (1934)).

       Viewing the evidence in a light most favorable to the Plaintiffs, a jury relying on

testimony from Mr. Wells and Detective Sloan could find NVEC’s failure to maintain its

power pole and equipment was negligent conduct that led to the fire on the Plaintiffs’

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Wells v. Nespelem Valley Elec. Coop., Inc.


property. The evidence presented at trial was therefore sufficient to overcome NVEC’s

motion for directed verdict. The trial court’s decision to the contrary must be reversed.

Res ipsa loquitur

       In addition to presenting sufficient evidence of general negligence, the Plaintiffs

also produced a viable case of res ipsa loquitur. Res ipsa loquitur is a Latin phrase,

roughly meaning “‘the thing speaks for itself.’” BLACK’S LAW DICTIONARY 1566

(11th ed. 2019). Res ipsa loquitur is not an independent legal claim; it is instead a tool

of circumstantial evidence that allows a plaintiff to proceed with a negligence claim when

a defendant’s specific act of negligence is unclear. Pacheco v. Ames, 149 Wn.2d 431,

436, 69 P.3d 324 (2003). Whether res ipsa loquitur can be applied to a set of facts is a

legal issue. Curtis v. Lein, 169 Wn.2d 884, 889, 239 P.3d 1078 (2010). The doctrine may

be used when:

       (1) the accident or occurrence that caused the plaintiff’s injury would not
       ordinarily happen in the absence of negligence, (2) the instrumentality . . . that
       caused the plaintiff ’s injury was in the exclusive control of the defendant, and
       (3) the plaintiff did not contribute to the accident or occurrence.

Id. at 891.

       In granting NVEC’s motion for directed verdict, the trial court focused on res ipsa

loquitur’s first element. The court noted that fires are often attributed to causes having




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nothing to do with negligence. As such, the trial court reasoned res ipsa loquitur did not

apply in this context.

       The trial judge’s assessment of the type of occurrence at the heart of the Plaintiffs’

res ipsa loquitur claim was too broad. Application of res ipsa loquitur is fact-specific and

focuses on the “manner and circumstances” of a plaintiff’s damage or injury. Zukowsky v.

Brown, 79 Wn.2d 586, 594-95, 488 P.2d 269 (1971). Here, the circumstance at issue was

not simply a fire, but a fire originating with an electrical utility’s power supply

equipment. The general fact that fires often happen without any negligence does not

address the Plaintiffs’ specific claim that a fire attributed to electrical service is not

something that normally occurs outside of negligence. It is the specific claim that governs

application of res ipsa loquitur, not the more abstract occurrence. See Brugh, 8 Wn. App.

2d at 185 (looking to plaintiff’s specific claim of injury resulting from rollercoaster,

rather than general claim of injury during rollercoaster).

       The common law has long favored the Plaintiffs’ position that res ipsa loquitur

permits an inference of negligence for fires attributed to an electrical utility’s equipment.

See Collins v. Virginia Power & Elec. Co., 204 N.C. 320, 168 S.E. 500, 504 (1933)

(“‘It is generally held that in cases of injuries sustained from electric appliances on

private property the doctrine of res ipsa loquitur applies where it is shown that all the

appliances for generating and delivering the electric current are under the control of the

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Wells v. Nespelem Valley Elec. Coop., Inc.


person or company furnishing the same.’”) (quoting Lynch v. Carolina Tel. & Tel. Co.,

204 N.C. 252, 167 S.E. 847, 850 (1933)); accord Snow v. Duke Power Co., 297 N.C.

591, 256 S.E.2d 227, 233 (1979) (Res ipsa loquitur applies where circumstantial evidence

shows the source of the fire was electrical and the defendant “had the exclusive control

and management of the electrical current.”); Peterson v. Minnesota Power & Light Co.,

207 Minn. 387, 391-92, 291 N.W. 705 (1940).

       The common law approach is persuasive here. Under Washington law, when a

“utility’s operation exposes the public to serious accidents or death, the utility is held to

the highest degree of care human prudence is equal to.” Keegan, 34 Wn. App. at 279.

The public reasonably expects utilities to deliver electricity in a safe manner, capable of

withstanding normal tests of time and exposure to the elements. See Scott, 178 Wash. at

656-57 (Utility is expected to account for normal, foreseeable interactions with power

lines.). While an unusual weather event or other interference may defeat an inference of

negligence under the doctrine of res ipsa loquitur, the mere possibility of a defense does

not mean a plaintiff has failed to make out a prima facie case for the jury. See Pacheco,

149 Wn.2d at 440-41 (A “plaintiff is not required to ‘eliminate with certainty all other

possible causes or inferences’ in order for res ipsa loquitur to apply.”) (quoting Douglas

v. Bussabarger, 73 Wn.2d 476, 486, 438 P.2d 829(1968)). Instead, the claims and

defenses must be resolved by a trier of fact.

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Wells v. Nespelem Valley Elec. Coop., Inc.


       NVEC claims res ipsa loquitur’s second element is unmet because the power pole

on the Plaintiffs’ property was not in its exclusive control. Similar to its claim against res

ipsa’s first element, NVEC points out the power pole was subject to the elements and

other natural forces. According to NVEC, a bird, cat, or wild animal could come into

contact with its equipment and cause a disruption or fire.

       NVEC’s view of res ipsa loquitur is too rigid. The issue of exclusive control serves

to narrow the defendant as the source of a plaintiff’s injuries, as opposed to some other

party. Zukowsky, 79 Wn.2d at 595. Generally, an electrical company will be held

responsible for fires originating from its equipment, even if the equipment is placed on

private property. Collins, 168 S.E. at 503-04. Presumptive responsibility is defeated only

when the evidence shows a third party has interfered with a power company’s equipment.

See, e.g., Hippe v. Duluth Brewing & Malting Co., 240 Minn. 100, 105-06, 59 N.W.2d

665 (1953) (Res ipsa loquitur inapplicable when evidence was that plaintiff’s son had

exerted control over the power company’s transformer.); Arkansas Power & Light Co. v.

Butterworth, 222 Ark. 67, 70-71, 258 S.W. 36 (1953) (Res ipsa loquitur inapplicable

because only a portion of the instrumentality that started the fire was under the

defendant’s control.).

       Here, there was no evidence presented at trial of any outside interference with

NVEC’s power equipment. Detective Sloan testified he did not observe any indication of

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Wells v. Nespelem Valley Elec. Coop., Inc.


tampering by either people or animals. No other witness indicated anything to the

contrary. Because the wires, insulator, and other devices on the Plaintiffs’ property “were

all furnished and installed, inspected, etc.” by NVEC, the utility is deemed in exclusive

control of its equipment for purposes of res ipsa loquitur. Collins, 168 S.E. at 504.

       NVEC does not dispute res ipsa’s third element. There was no evidence the

Plaintiffs contributed to the fire that destroyed their residence and other property.

Accordingly, the Plaintiffs have established a prima facie case for all three components of

res ipsa loquitur. As a result, a trier of fact must decide the final merits of the Plaintiffs’

claims.

                                       CONCLUSION

       The order granting NVEC’s motion for directed verdict is reversed. This matter is

remanded for trial.


                                            _________________________________
                                            Pennell, C.J.
WE CONCUR:



______________________________
Fearing, J.                                 Lawrence-Berrey, J.




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