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Minto v. Sprague6/16/2005
t the General Assembly may have intended or understood the phrase "sets fire to" to include fires started as the result of negligent conduct.
Thus, contrary to plaintiffs' argument, we conclude that the plain and ordinary meaning of the phrase "sets fire to" does not apply to driving a bulldozer and unintentionally igniting a fire.
Therefore, we conclude the trial court properly declined to give the proposed strict liability instruction.
II. Res Ipsa Loquitur
Plaintiffs next argue that the trial court erred when it rejected their proposed instruction on the doctrine of res ipsa loquitur. We disagree.
"A trial judge is obligated to correctly instruct the jury on the law applicable to the case." Jordan v. Bogner, 844 P.2d 664, 667 (Colo. 1993). Whether res ipsa loquitur is applicable is a question of law for the trial court. Zimmer v. Celebrities, Inc., 44 Colo. App. 515, 615 P.2d 76 (1980).
The doctrine gives rise to a rebuttable presumption of a defendant's negligence. Stone's Farm Supply, Inc. v. Deacon, 805 P.2d 1109 (Colo. 1991). When a plaintiff introduces sufficient evidence to establish a presumption of negligence, the trial court must instruct the jury on the doctrine. Ravin v. Gambrell, 788 P.2d 817 (Colo. 1990).
To demonstrate that the doctrine is applicable, a plaintiff must introduce evidence which, when viewed in the light most favorable to the plaintiff, establishes that it is more probable than not that: (1) the event is of the kind that ordinarily does not occur in the absence of negligence; (2) responsible causes other than the defendant's negligence are sufficiently eliminated; and (3) the presumed negligence is within the scope of the defendant's duty to the plaintiff. Williams v. Boyle, 72 P.3d 392 (Colo. App. 2003).
To establish a prima facie case of res ipsa loquitur, plaintiffs were required to present sufficient evidence upon which the trial court could have concluded that defendant's negligence was the more probable explanation for the fire. But they were not required to conclusively exclude all possible explanations for the accident. See Montgomery Elevator Co. v. Gordon, 619 P.2d 66 (Colo. 1980).
However, when the facts and circumstances of the occurrence create conflicting inferences, one of due care and one of negligence, the doctrine does not apply. Zimmerman v. Franzen, 121 Colo. 574, 220 P.2d 344 (1950). The doctrine also does not apply when a court, viewing all the evidence and inferences in the light most favorable to the plaintiff, does not find that it is more likely than not that the defendant's negligence was the cause of the plaintiff's injury. Holmes v. Gamble, 655 P.2d 405 (Colo. 1982); Hamilton v. Smith, 163 Colo. 88, 428 P.2d 706 (1967)(holding that when it can be equally inferred that the accident was caused by something other than defendant's negligence, the doctrine does not apply).
Here, plaintiffs presented no evidence regarding the cause of the fire. However, defendant presented uncontroverted evidence that the fire started when he drove his bulldozer over a rock, creating a spark. In support of this theory, a fire investigator testified that he inspected the site and the scraped rock and determined that there was nothing to contradict defendant's statement that the bulldozer scraped the rock and started the fire.
Plaintiffs did not introduce sufficient contradictory evidence to make it more probable than not that an unknown negligent act by defendant, and not the act of scraping the rock with the bulldozer, caused the fire. Thus, they failed to present prima facie support for their theory of res ipsa loquitur.
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