                              SECOND DIVISION
                                MILLER, P. J.,
                           RICKMAN and REESE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                     March 9, 2020




In the Court of Appeals of Georgia
 A19A2422. HOLCOMB INVESTMENTS LIMITED v. KEITH
     HARDWARE, INC. et al.

      MILLER, Presiding Judge.

      Keith Hardware, Inc., a commercial tenant of Holcomb Investments Ltd.,

received a delivery of plastic totes containing volatile chemicals from Ace Hardware

Company, and one of these totes was the apparent origin of a fire that caused

extensive damage to Holcomb’s building. Holcomb appeals from the trial court’s

grant of summary judgment to Keith Hardware and Ace Hardware as well as the trial

court’s denial of its cross-motion for summary judgment. Holcomb argues that (1) it

was entitled to summary judgment on its breach of contract claim based on the

indemnification clause in its lease with Keith Hardware; (2) as to both Keith

Hardware and Ace Hardware, the trial court erred in finding that there were no jury
questions as to negligence and also erred in failing to view the facts in a light most

favorable to Holcomb; and (3) the trial court erred in finding that, as against Keith

Hardware, the doctrine of res ipsa loquitur was inapplicable. We determine that (1)

Holcomb’s indemnification argument is beyond this Court’s proper scope of review

because the trial court did not address it; and (2) the trial court erred in granting

summary judgment to both Keith Hardware and Ace Hardware on Holcomb’s

negligence claims. Accordingly, we vacate the trial court’s denial of Holcomb’s

motion for summary judgment and reverse the trial court’s grant of summary

judgment to Keith Hardware and Ace Hardware.

      “A trial court properly grants a motion for summary judgment when there are

no genuine issues of material fact and the movant is entitled to judgment as a matter

of law.” (Citation omitted.) Villareal v. TGM Eagle’s Pointe, Inc., 249 Ga. App. 147

(547 SE2d 351) (2001). “On appeal of a grant of summary judgment, we conduct a

de novo review, and we view the evidence in the light most favorable to the

nonmoving party.” (Citation omitted.) Id.

      So viewed, the record shows that Keith Hardware was a commercial tenant that

operated a hardware store in Holcomb’s building. In 2015, while Randall Thomas was

working at the store, an Ace Hardware delivery truck driver dropped off pallets and

                                          2
plastic totes. As soon as the driver, Jeffrey Hill, unloaded the first pallet from the

truck, Thomas asked about a “god awful smell” emanating from the pallet. Hill

replied, “I don’t know.” Thomas deposed that he had never smelled the scent before

but described it as a “chemical” scent, and he also testified that due to the material(s)

emitting the scent, his eyes hurt and his nose burned. Neither Thomas nor Hill made

a closer inspection of the pallet to investigate the scent. Thomas carried the pallet into

the store and pushed it far into the stockroom, which was located in a corner of the

building. He then placed three additional seven-foot pallets in front of the pallet that

had been emitting the chemical scent and closed the door to the stockroom.

      Thomas then began unloading other pallets which he had placed at the front of

the store by the sales area. Approximately 20 minutes after bringing the first pallet

into the store, Thomas began smelling the same chemical scent from the front of the

store, but continued working for approximately five more minutes. He then decided

to investigate and heard “crackling and popping” in the corner of the store where the

stockroom was located. Upon entering the stockroom, Thomas saw flames coming out

of a plastic tote from the same pallet that had emitted the chemical scent. By then, the

fire was already “intense,” and Thomas determined that he could not put it out with

an extinguisher. The fire spread and ultimately caused extensive damage to

                                            3
Holcomb’s building, resulting in a loss of $116,262.47, which was not covered by

insurance.

      Holcomb’s expert, Douglas Byron, a forensic chemist specializing in fire debris

analysis, opined to a reasonable degree of scientific certainty that the fire was caused

by a “self-heating” reaction inside the tote, from “materials that are incompatible with

each other.” In his written report, Byron concluded, “to a reasonable degree of

scientific certainty,” that “Ace Hardware [had] improperly and unsafely plac[ed]

incompatible chemicals and materials in the same container.” He explained, “[s]ome

of these chemicals and materials likely broke open and mixed with each other leading

to a chemical reaction and ensuing spontaneous combustion event that resulted in the

subject fire.”

      Byron could not say with certainty which materials had combined to start the

fire. Using the shipment manifest, however, and accounting for Thomas’s observation

of the “awful” scent, Byron ultimately concluded that “the most likely scenario” was

that muriatic acid and pool chlorine had combined to spontaneously combust.1


      1
        According to Byron’s report, muriatic acid is another term for hydrochloric
acid, and the pool chlorine here was in the form of calcium hypochlorite, which is a
strong oxidizer that generates heat and toxic chlorine gas when it reacts with acids
such as muriatic acid.

                                           4
Although Byron testified as to a few combinations of materials that may have

combusted, he explained, “the only thing that we’ve identified that can produce a

horrific, god awful smell, would be the reacting of those two compounds.” While he

was not “a hundred percent” certain that the muriatic acid and chlorine had combined

to cause the fire, he testified, “as the evidence goes and the testimony, . . . that’s really

the only thing we had in this case.” Byron had not performed any tests showing that

these two compounds combined to cause a fire, but he testified that an exothermic

reaction had been “known to happen” when they combined. The record does not show

that any other investigator or the fire department determined a cause for the fire.

       Holcomb filed suit against Keith Hardware and Ace Hardware in the State

Court of Walker County, raising both breach of contract and negligence claims.

Holcomb claimed that Keith Hardware had breached its lease agreement to keep the

leased space in a habitable, safe, and good condition by storing unsafe, combustible

materials in Holcomb’s building. As part of its negligence claims against both

defendants, Holcomb alleged that Keith Hardware was negligent in accepting the

combustible materials and storing them in the building and that Ace Hardware was

negligent in delivering such materials. Both defendants filed motions for summary

judgment. Keith Hardware argued that Holcomb’s negligence claim failed because

                                             5
the cause of the fire was undetermined and that Holcomb’s breach of contract claim

failed in the absence of a showing of negligence. Ace Hardware argued that it had

packed the subject tote in accordance with the federal guidelines, which preempt state

law tort claims, and that Holcomb’s negligence claim failed on the causation element.

Holcomb filed a cross-motion for summary judgment against Keith Hardware,

contending that the clear and unambiguous terms of the lease agreement required

Keith Hardware to indemnify Holcomb for its damages and that Keith Hardware was

also contractually obligated to pay Holcomb’s legal expenses, attorney fees, and

interest.

       After a hearing, the trial court granted summary judgment in favor of Keith

Hardware and Ace Hardware and denied Holcomb’s cross-motion for summary

judgment. The trial court determined that Holcomb’s negligence claims against both

defendants failed as a matter of law because Holcomb’s evidence regarding causation

was speculative and that Holcomb had no breach of contract action against Keith

Hardware in the absence of a showing of negligence. This appeal ensued.

       1. First, Holcomb contends that the trial court erred in denying its cross-motion

for summary judgment on its breach of contract claim against Keith Hardware

because an indemnification clause in the lease agreement required Keith Hardware

                                           6
to indemnify Holcomb for its damages. This argument, however, is beyond the proper

scope of our review because the trial court did not address it.

       The indemnification clause in the lease agreement between Holcomb and

Keith Hardware provided in part as follows:

      Tenant shall indemnify . . . Landlord against all liabilities, expenses and
      losses, incurred by Landlord as the result of (a) damage or injury to
      Landlord, the Premises, or property or person of anyone else, if due to
      the act or neglect of Tenant or anyone under Tenant’s control or employ;
      (b) failure by Tenant to perform any covenants required to be performed
      by Tenant hereunder; and/or (c) Tenant’s failure to comply with any
      requirements of any governmental authority.


      In its cross-motion for summary judgment, Holcomb argued that this

contractual clause required Keith Hardware to indemnify or compensate Holcomb for

the fire damage and losses. In Holcomb’s view, Thomas’s “act” of bringing a

suspicious pallet into the building led to the fire and subsequent destruction of the

building. But the trial court did not address this argument in its order denying

Holcomb’s summary judgment motion. “Thus, if we were to conclude that the trial

court erred, it would be on account of an issue never ruled on below.” Nebo Ventures,

LLC v. NovaPro Risk Solutions, L.P., 324 Ga. App. 836, 848 (4) (752 SE2d 18)

(2013).

                                          7
      [W]hen this Court reviews a decision of a trial court on a motion for
      summary judgment, it sits as a court for the correction of errors of law.
      An error of law has as its basis a specific ruling made by the trial court.
      And although in certain instances an appellate court can review a record
      and determine that a summary judgment ruling was right for some
      reason other than that given by the trial court, an appellate court should
      not consider whether the trial court was ‘wrong for any reason.’


(Citation omitted.) Piedmont Hosp., Inc. v. D.M., 335 Ga. App. 442, 448-449 (3) (779

SE2d 36) (2015). Holcomb’s argument is therefore beyond our proper scope of

review. Id. at 449 (3); Earls v. Aneke, 350 Ga. App. 455, 461 (1) (829 SE2d 661)

(2019). Accordingly, we vacate the trial court’s denial of Holcomb’s cross-motion for

summary judgment and remand for the trial court to consider in the first instance

whether Holcomb is entitled to indemnification under this section of the lease

agreement. See Earls, supra, 350 Ga. App. at 461 (1) (vacating the trial court’s

summary judgment orders and remanding for the trial court to address the appellant’s

argument raised below); Strength v. Lovett, 311 Ga. App. 35, 45 (2) (b) (714 SE2d

723) (2011) (same).

      2. Next, Holcomb argues that the trial court erred in granting Keith Hardware’s

summary judgment motion because there were fact issues regarding Keith Hardware’s



                                          8
negligence. Because genuine issues of material fact remain, the trial court erred in

granting summary judgment in Keith Hardware’s favor.

      “It is well established that to recover for injuries caused by another’s

negligence, a plaintiff must show four elements: a duty, a breach of that duty,

causation[,] and damages.” (Citation and punctuation omitted.) Johnson v. American

Nat. Red Cross, 276 Ga. 270, 272 (1) (578 SE2d 106) (2003). “And to prove

causation, the plaintiff must show that the wrongdoing is both a cause in fact and a

proximate cause of the injuries alleged.” (Citation and punctuation omitted.) Redmon

v. Daniel, 335 Ga. App. 159, 162-163 (779 SE2d 778) (2015). We remain mindful

that “[e]ven slight evidence will be sufficient to satisfy the plaintiff’s burden of

production of some evidence on a motion for summary judgment; such evidence may

include favorable inferences drawn by the court from the evidence presented.”

(Citation and punctuation omitted; emphasis supplied.) Dalton v. City of Marietta,

280 Ga. App. 202, 203 (633 SE2d 552) (2006). “[I]ssues of negligence and causation

generally are not appropriate for summary adjudication unless the evidence is plain,

palpable, and undisputable.” Vaughan v. Glymph, 241 Ga. App. 346, 348 (526 SE2d

357) (1999).



                                         9
      Here, Holcomb alleged in its complaint that Keith Hardware was negligent in

accepting combustible materials from Ace Hardware and then storing those materials

in Holcomb’s building. Regarding the pallet at issue, the evidence showed that “as

soon as [Hill] put the pallet down and set it down,” Thomas remarked concerning a

“god awful” scent, which he had never smelled in the two years that he had worked

at the store. Thomas explicitly described it as a “chemical” scent and explained that,

on a scale of one to ten, with ten denoting “overwhelming,” the scent was “[p]robably

a seven.” He testified, “I know the difference in chlorine. I know the difference in

mineral spirits. I know the difference in different smells. But this was an unfamiliar,

unrecognizable smell.” Due to whatever material(s) emitted the scent, Thomas’s eyes

hurt, and his nose burned. Thomas also testified that, as it pertained to deliveries from

Ace Hardware, about half of the boxes he opened contained chemicals and flammable

materials. The evidence also showed that after Thomas placed the pallet in the

storeroom, he began smelling the same chemical scent from where he was positioned

at the front of the store, but he continued working for approximately five more

minutes.




                                           10
      Although no witness could definitively identify what specific material(s) in the

tote combusted,2 the record contains at least slight evidence raising a fact issue

regarding whether Keith Hardware’s alleged wrongdoing caused Holcomb’s injuries.

Specifically, the record shows the following: (1) Thomas brought the subject pallet

into the building and stored it despite prolonged observations of a “god awful”

chemical scent and his physical reactions to the pallet’s contents; (2) Thomas

continued working even after the same chemical scent reached him at the front of the

store; (3) a fire then originated in a tote from that same pallet; and (4) that fire, in

turn, spread and caused extensive damage to Holcomb’s building. Accordingly, there

is a fact question as to whether Keith Hardware was negligent in accepting the

delivery, storing the pallet in the building, and then leaving the pallet unattended in

a closed room. Additionally, there is sufficient evidence from which a jury could


      2
         While Byron testified that the most likely cause of the fire was the
combination of muriatic acid and pool chlorine, he could not point to any study or test
that showed that the mixing of these two materials would cause a fire and he could
not testify as to how much heat was generated in the reaction. See Kaiser v. Tara
Ford, Inc., 248 Ga. App. 481, 488 (3) (546 SE2d 861) (2001) (“[A]n inference based
on uncertain or speculative evidence or which merely raises a conjecture or
possibility will not preclude summary judgment.”) (citation omitted).




                                          11
determine that, but for Keith Hardware’s actions, the building would not have burned

and that Keith Hardware was also at least one proximate cause of its injuries. See,

e.g., Stern v. Wyatt, 140 Ga. App. 704, 705 (1) (231 SE2d 521) (1976) (“A defendant

may be held liable where it appears that . . . his negligence put in operation other

causal forces which were the direct, natural, and probable consequences of the

defendant’s original act[.]”). The evidence in this case is not plain, palpable, and

undisputable so as to warrant a grant of summary judgment in Keith Hardware’s

favor.

         We are cognizant of our prior decisions involving fires, in which we held that

the defendant was entitled to summary judgment on the plaintiff’s negligence claim

because the cause of the fire was undetermined. See Sawtell Partners, LLC v. Visy

Recycling, Inc., 277 Ga. App. 563, 565 (2) (627 SE2d 58) (2006); Denson Heating

& Air Conditioning Co. v. Oglesby, 266 Ga. App. 147, 148 (596 SE2d 685) (2004);

Bunch v. Maytag Corp., 211 Ga. App. 546, 547 (1) (439 SE2d 676) (1993). Those

cases do not dictate the result here. In those cases, evidence of the actual cause of the

fire was necessary because the issue under consideration was whether the defendants’

alleged negligence caused some instrumentality to catch fire or caused a fire to break

out. Sawtell Partners, supra, 277 Ga. App. at 565 (2) (“[Plaintiff] has provided no

                                           12
evidence that [the defendant] caused the fire that damaged [the] property.”); Denson,

supra, 266 Ga. App. at 148 (“[T]here is no evidence that the explosion and resulting

fire were caused by any negligence on the part of [the defendant] in the installation

and service of the furnace.”); Bunch, supra, 211 Ga. App. at 548 (1) (grant of

summary judgment to oven manufacturer was proper because there was no causal

connection between the design and/or construction of the oven and the injuries).

      In this case, however, the alleged negligence is not so narrow. Holcomb is not

necessarily arguing, in a strict sense, that Keith Hardware caused the tote to catch

fire; after all, it is conceivable that after the tote was delivered, it would have caught

fire regardless of any action Thomas took or failed to take. Rather, Holcomb’s claim

— which is supported by at least slight evidence in the record — is partially that

Keith Hardware was negligent in storing the suspicious pallet in the building. In other

words, even though the evidence does not definitively demonstrate which specific

materials combined to start the fire, there is a triable issue as to whether Keith

Hardware was negligent in storing an evident, potential hazard in Holcomb’s building

and leaving it unattended in a closed room, so as to ultimately be a cause of the

extensive fire damage to the building. As Holcomb explicates in its brief, regardless

of what specifically combusted, a jury could find that had Thomas not carried the

                                           13
pallet into the building, or had he monitored the pallet, Holcomb’s building likely

would not have burned. Thus, the trial court erred in granting summary judgment in

Keith Hardware’s favor on Holcomb’s negligence claim.3

      3. Lastly, Holcomb argues that the trial court erred in granting summary

judgment to Ace Hardware because there is evidence that Ace Hardware packed

incompatible chemicals into the same tote, and that Hill failed to inspect and remedy

the suspicious tote once he was alerted to an issue with the pallet. We agree that the

grant of summary judgment was error.

      First, Holcomb’s negligence claim is not preempted by the Hazardous

Materials Transportation Act and the Hazardous Materials Regulations.4 Although

Holcomb’s expert testified that Ace Hardware complied with federal regulations

when it packed the subject tote, this does not necessarily demonstrate that Ace

      3
       Because Holcomb presented some evidence of negligence on the part of Keith
Hardware, we need not address Holcomb’s argument that the doctrine of res ipsa
loquitur should allow its negligence claim to proceed to a jury. See Persinger v. Step
By Step Infant Dev. Center, 253 Ga. App. 768, 770 (560 SE2d 333) (2002) (the
doctrine of res ipsa loquitur “is one of necessity in cases where there is no evidence
of consequence showing negligence on the part of the defendant.”) (citation omitted).
      4
        This Court may exercise jurisdiction to address a preemption defense where
it does not involve a direct constitutional challenge to an entire statute, ordinance or
regulation on preemption grounds. Fox v. Norfolk Southern Corp., 342 Ga. App. 38,
44 (1) (802 SE2d 319) (2017).

                                          14
Hardware exercised ordinary care. See Chancey v. Peachtree Pest Control Co., 288

Ga. App. 767, 770 (2) (a) (655 SE2d 228) (2007) (holding that the trial court

wrongfully instructed the jury that the application of pesticides in a manner consistent

with the federal registered label does not fall below the standard of care). Compare

Midville River Tract, LLC v. Central of Georgia Railroad Co., 339 Ga. App. 546,

548-549 (1) (794 SE2d 192) (2016) (plaintiff’s negligence claim was preempted by

federal law where the plaintiff alleged that the defendant installed a fractured weld

in violation of federal regulations).

      The retail support center manager for Ace Hardware testified that Ace

Hardware is responsible for ensuring that the delivery that was made to Keith

Hardware was organized and packed safely. Similarly, Hill affirmed that he was

responsible for avoiding and preventing possible safety hazards, including fire

hazards. He testified, too, that he occasionally delivers hazardous or flammable

materials. In his expert report, Byron noted that the pallet in question had been

transported while open and exposed to rain, and that the moisture from the rain can

create a fire hazard with some chemicals and products. Crucially, the retail support

center manager testified that if a pallet is unloaded from a truck during a delivery,

which emits a strong chemical smell, and the driver detects that smell, the driver is

                                          15
to call the center, after which a HazMat team would be sent to the location in the

event of a hazard. Hill testified likewise, that if faced with this predicament he would

call his supervisor and report it. Hill also has an “emergency response book” in his

truck that contains the telephone number for a chemical technician, in the event that

he “run[s] into any situations.”

      Given this evidence, and as we discussed in Division 2, we do not deem it fatal

to Holcomb’s negligence claim that the evidence fails to definitively show which

specific materials combusted. When viewed in the light most favorable to Holcomb,

the evidence shows that Thomas observed a “god awful” scent being emitted from the

pallet, he inquired about that scent with Hill, and Hill nevertheless proceeded with

the delivery without taking any further precautions. Therefore, it is for the jury to

determine whether Ace Hardware was negligent in completing the delivery in the

manner that it did, so as to be a cause of Holcomb’s injuries. Again, the evidence is

not plain, palpable, and undisputable so as to demand summary judgment in Ace

Hardware’s favor, and the trial court erred in ruling otherwise.

      In sum, we vacate the trial court’s denial of Holcomb’s cross-motion for

summary judgment and remand for the trial court to consider Holcomb’s argument



                                          16
regarding indemnification, and we reverse the trial court’s grant of summary

judgment to both Keith Hardware and Ace Hardware.

      Judgment reversed in part, vacated in part, and case remanded with direction.

Rickman and Reese, JJ., concur.




                                        17
