Hersheldon’s v. Censor Security, No. 327-02 CnC (Katz, J., Feb. 12, 2004)

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STATE OF VERMONT                                        SUPERIOR COURT
Chittenden County, ss.:                              Docket No. 327-02 CnCv



HERSHELDON’S

v.

CENSOR SECURITY




                                    ENTRY




       Plaintiff mall retailer sues the mall security service, alleging that the
substantial smoke damage suffered to its inventory was caused by the
security guard’s failure to notice and deal with the fire in a prompt manner.
It appears undisputed that the incident occurred late at night, with the
security guard being the only person in the mall at the time. The fire alarm
sounded about 1 1/2 hours after the guard had last gone past the trash barrel
in which the fire was actually located. Although the guard then promptly
called the fire department, smoke from the barrel caused a great deal of
damage. Plaintiff’s claim is that, without other persons having been
present, the guard either caused the fire or negligently failed to notice it
when he had previously walked past the barrel.

        As a tenant in the mall, plaintiff retailer presumably gains a package
of services and rights from the mall operator, one of which is security. We
will assume, for now, that plaintiff is a third party beneficiary of the mall
security contract. We will also assume that defendant security service
owed the third-party mall tenants a duty of reasonable care and reasonable
attention, in the performance of its contractual duties. That leaves us with
the question of what, exactly, defendant did wrong.

        Defendant’s motion for summary judgment calls into question
plaintiff tenant’s ability to make out a prima facie case. Poplowski v.
Lamphere, 152 Vt. 251, 254–55 (1989) ; State v Blodgett, 163 Vt. 175, 180
(1995); Celotex v. Catrett, 477 U.S. 317, 322 (1986). These cases stand for
the proposition that the party not burdened to introduce evidence in the first
instance may challenge the burdened party’s ability to make out each
element necessary to a recoverable claim. Here, that means negligence and
causation. Plaintiff responds to this burden as follows:

       When the area of the fire was mopped there was a single,
       partially burned paper match in the immediate area where the
       trash container had been. [The guard] was the only person in
       the building at the time of the fire and had been for at least an
       hour prior to the fire.
(Pl. Opp’n to Def. Mot. for Summ. J. at 2.)

That’s all.
        Does this lead to the factual inference that the guard actually started
the fire, or merely that he failed to observe an already smoldering situation
when he had last walked past it, 1 1/2 hour earlier? The reader’s guess is as
good as any. The record does not permit a finder of fact to conclude that,
probably, the match actually started the fire. Possibly it did, but that is not
good enough. Beyond the fire’s speculative “cause and origin,” what
exactly should the guard have seen or smelled during his earlier trip in its
vicinity? Was it smoldering enough so that, in the exercise of reasonable-
guard care, he would have sensed it? Again, the reader is free to guess. For
such must be the position of any jury which would have to decide this
matter. We cannot presume to know the course of trash barrel fires, so as
to reach a fact-grounded inference that this one, 1 1/2 hours earlier, would
have been sufficiently active to have aroused the attention of the reasonable
security guard. There is no uniformity to the contents of trash barrels.
Considering the variety of patrons ambling through a mall, the various
retailers, the custodial and maintenance workers who could all have passed
this trash barrel, we have no idea of whether this fire was spontaneous
combustion, and therefore slow, in origin, or had some more rapid course.
Plaintiff’s case is wholly founded on speculation. We would not permit
this evidence to go to the jury. Smith v. Parrott, 2003 Vt. 64 ¶ 6 (noting
that party with burden must establish element of causation by a
preponderance of evidence).

      Although some might hesitate to put it in these exact terms, the
Second Circuit has written that summary judgment is that proceeding which
“smokes out” the ability of plaintiff to make out a prima facie case, with
admissible evidence. Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. 1972).
Plaintiff does not have sufficient evidence in this case. The court delayed
consideration of this motion to permit deposing of the guard; this has now
occurred. No reason has been shown to suggest that plaintiff will develop
additional evidence in a case already almost two years old. Gallipo v. City
of Rutland, 163 Vt. 83, 86 (1994). Summary judgment for defendant is
therefore granted.



      Dated at Burlington, Vermont, ________________, 2004.




                                            _________________________
                                                                Judge
