NY appeals court upholds dismissal of tenant fire lawsuit

A state appeals court has upheld a lower court decision that dismissed a lawsuit filed by a property owner against a tenant who was accused of starting a fire.

Plaintiff Akeed Inc. filed the complaint in September 2021 in Niagara County against defendant John Barcomb seeking to recover for damages to a residential property caused by a fire that was allegedly started by a cigarette smoked by Barcomb, a tenant.

Barcomb moved for summary judgment dismissing the complaint, while Akeed moved for partial summary judgment on liability based on Barcomb’s alleged negligence in causing the fire.

In June 2024, state Supreme Court Justice Frank Caruso granted Barcomb’s motion and denied Akeed’s motion. Akeed appealed and the Fourth Department affirmed Caruso’s ruling.

“We reject plaintiff’s contention that the court erred in granting defendant’s motion and denying plaintiff’s motion with respect to the negligence cause of action,” the Fourth Department panel wrote.

In a premises liability case, a defendant can establish entitlement to judgment by submitting evidence that the plaintiff “cannot identify the cause of the injury without engaging in speculation,” the court wrote.

Barcomb met his initial burden of establishing that none of his acts or omissions was a proximate cause of the fire, the court ruled.

Barcomb submitted his own deposition testimony that the fire started outside his bedroom after he went to sleep, and he submitted the fire investigation report, which determined that the cause of the fire was undetermined.

In opposition, Akeed failed to raise a triable issue of fact regarding whether Barcomb’s conduct proximately caused the fire, according to the decision.

“Plaintiff did not submit the testimony or report of any expert regarding the cause of the fire. Instead, plaintiff relied merely on speculation that the cigarette defendant was smoking before going to bed was the cause of the fire,” the court wrote.

“Contrary to plaintiff’s contention, the doctrine of res ipsa loquitur does not apply,” the panel wrote.

Res ipsa loquitur is a legal doctrine that negligence can be proven with circumstantial evidence.

But the court wrote that, to establish an inference of negligence under the doctrine: The event must be something that does not occur in the absence of someone’s negligence; it must be caused by something within the exclusive control of the defendant; and it must not be the result of any action or contribution by the plaintiff..

To succeed, Akeed would have to show that the probability of other causes was so outweighed that (Barcomb’s) negligence was more likely than any other cause.

“Here, inasmuch as the cause of the fire was unknown, it cannot be said that the fire could not occur in the absence of negligence,” the court wrote.

“It also cannot be said that defendant had exclusive control of the instrumentality that caused the fire,” the court ruled.

The court also ruled that a lease provision that exempted Akeed from liability for damages or injuries was void and unenforceable.

Barcomb’s lease required him to pay monthly rent of $750 and obtain $1 million in “fire and property damage and public liability insurance.”

The lease also required Barcomb to indemnify Akeed “against any and all claims, actions, damages, liability and expenses in connection with . . . damage to the property arising from any occurrence in the rented premises,” according to the decision.

The court ruled that the indemnification provision violates state law “because it shifted the entire responsibility for damages to defendant, regardless of plaintiff’s own negligence.”

The court wrote that “an indemnity agreement in a commercial lease negotiated at arm’s length between two sophisticated parties, which includes a provision requiring the tenant to obtain insurance and name the landlord as an additional insured” is lawful.

But Barcomb’s lease was a residential lease, not a commercial lease, and it was not negotiated at arm’s length “between two sophisticated business entities or persons,” the court ruled.

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