5ASR3d91

FONOTAGA SEVA`AETASI, Plaintiff,

 

v.

 

AMERICAN SAMOA POWER AUTHORITY, Defendant.

 

High Court of

American Samoa

Trial Division

CA No. 123-00

 

May 14, 2001

 

 

[1] The doctrine of res ipsa loquitur applies when an accident’s nature is

such that past experience has shown that it probably resulted from someone’s

negligence and that the defendant is probably responsible.

 

[2] The doctrine of res

ipsa loquitur applies to an accident only under the following conditions:

(1) it ordinarily does not occur without someone’s negligence, (2) it was

caused by an agency or instrumentality within defendant’s exclusive control,

and 3) it was not due to a voluntary action by the plaintiff.

 

[3] The doctrine of res

ipsa loquitur, when applicable, merely establishes a permissive

inference of negligence that the fact finder is not required to adopt.

 

[4] Evidence was insufficient to sustain inference of

negligence on the part of power company where house fire started from

electrical panel located on opposite side of wall where meter was located and

electricity had been recently re-connected by utility.  There was nothing particularly involved, or

untoward, in the utility employee’s disconnecting and reconnecting power supply

which would suggest negligence.

 

[5] Power company has no duty to insure that load bearing

appliances and circuit breakers on premises are turned off prior to

reconnection of power supply.  It is the

responsibility of utility consumers to ensure that their safety switches,

circuit breakers, wiring, and all other components of their respective

electrical systems are adequately designed, sized, and put in place.

 

Before KRUSE,

Chief Justice, and ATIULAGI, Associate Judge.

 

Counsel:          For

Plaintiff, William H. Reardon

            For

Defendant, Roy J.D. Hall, Jr.

 

Decision and Order

 

Plaintiff Fonotaga Seva`aetasi’s  (“Seva`aetasi”) home and its contents were

destroyed by a fire that broke out shortly after the defendant American Samoa

Power Authority (“ASPA”) had reconnected electrical supply to the

premises.  ASPA had previously

disconnected Seva’aetasi’s power because of delinquent utility bills.  Seva’aetasi sued, claiming ASPA’s

negligence as the proximate cause of her loss.

 

Seva`aetasi’s negligence claim is twofold.  She argues that the doctrine of res ipsa loquitur applies in her case.  She reasons that her home’s electrical system

had been operational problem free for many years until ASPA shut down the power

and then reconnected supply.  She

contends that these surrounding circumstances coupled with the occurrence of

the fire shortly after reconnection, must point to some sort of negligence on

ASPA’s part.  “Homes do not ordinarily

burn down without someone’s negligence.” 

(Pl.’s Summation 2.)

 

Seva`aetasi’s second theory of negligence is based on the

claim that ASPA had a duty of care to ensure that all the “breakers were off”

before reconnecting power.  Id.

 

 

1. Res Ipsa

Loquitur

 

[1-3] The doctrine of res ipsa

loquitur applies “when the accident’s nature is such that past experience

has shown that it probably resulted from someone’s negligence and that the

defendant is probably responsible.”  Lang

v. Am. Samoa Gov’t, 24 A.S.R.2d 59, 61 (Trial Div.

1993).  Specifically, the doctrine

“applies to an accident only under the following conditions: (1) it ordinarily

does not occur without someone’s negligence, (2) it was caused by an agency or

instrumentality within defendant’s exclusive control, and 3) it was not due to

a voluntary action by the plaintiff.”  Id.  In the final analysis, however, res

ipsa loquitur, as the Appellate

Division explained:

 

[I]s no more

than one form of circumstantial evidence… . 

The inference of negligence to be drawn from the circumstances is left

to the jury.  They are permitted, but

not compelled, to find it.

 

In other

words, the doctrine, when applicable, merely establishes a

permissive inference of negligence which the fact finder is not required to

adopt.

 

Iosia v. Nat’l Pac. Ins. Ltd., 20 A.S.R.2d 123,

124-125 (App. Div. 1992) (quoting W.

Page Keeton et al., Prosser and Keaton on the Law of Torts § 40 (5th

ed.  1984)).

 

[4] In the matter at bar, we find the evidence

insufficient to sustain the inference of negligence sought by Seva`aetasi.  First, while the evidence suggests that the

fire had started at that part of the house locating the electrical panel, with

ASPA’S meter on the opposite exterior side of the wall, the evidence also

showed that there was nothing particularly involved or untoward with the

disconnection and reconnection of electrical power supply by ASPA’s

employee.  The connection/ reconnection

process simply entailed the removal of the meter (essentially a large male

plug) from its outside wall mounted casing (a female receptacle); the

attachment of plastic clips over two of the meter’s prongs to break the flow of

current when reinserted back into the casing; and then reversal of this process

to reestablish electrical flow back into the premises.  ASPA’s employee did nothing out of the ordinary

with reconnection such as would demonstrate negligence.

 

Moreover, the

evidence further revealed that ASPA’s employee had not put in a new or

different meter.  Reconnection here

involved the very same meter that Sevaaetasi’s structure had operated with in

the past.  This fact runs counter to

counsel’s opening submission that the fire must be attributable to a faulty

meter put in place by ASPA.[1]

 

A more

probable explanation of the fire may be drawn from the testimony of Mr. Fred

Niedo, an electrical engineer with the Department of Public Works.  Mr. Niedo, who was called as plaintiff’s

expert witness, explained that the reconnection of power to premises with heavy

loads on, such as freezers, dryers, air conditioners, water heaters, etc., will

result in a heavy in-rush of current to the electrical system.  This in-rush can result in an overload on the

system that can in turn generate sufficient heat to destroy the integrity of

the wiring insulation, and cause a fire.

 

However, Mr.

Niedo also went on to say that there are, with a properly designed and wired

electrical system, a “cascade” of safety features in place to meet

overload hazards.  These include, a

properly fused main safety switch; properly sized wire from the main to the

panel board to carry overall load; and on the panel board itself, the right

size of fuse, wires, circuits breakers and other components designed or sized

to carry the individual loads and the overloads.

 

The

circumstances here suggest that the fire was due in part to a total failure of

the safety features that Mr. Hiedo had described as ordinarily expected.  How an electrical system is designed and put

in place to incorporate these safety features, however, are matters within the

consumer’s control and not ASPA’s.  This

point was underscored in the evidence showing that the burnt structure was

originally a family residence and its electrical system was presumably,

therefore, designed for residential purposes. 

The premises’ electrical system was at some subsequent time

altered by Seva’aetasi’s former husband, Don Hardy, to accommodate a store and

business office.  While this

reconstruction added accordingly to the burden of the electrical system, the

alterations to the system were undertaken without the prerequisite permits from

the building branch.

 

Additionally,

the fire would have escalated because of action unwittingly taken by a

Seva’aetasi family member who initially responded to the fire by throwing a

bucket of water at the apparent source of the fire, the panel.  Mr. Niedo testified that throwing water on

the panel would result in a fire. 

Clearly, res ipsa loquitur is inappropriate

under these circumstances.

 

2.  Prerequisite Duty Of Care

 

[5] Lastly, Mr. Miedo also testified that the fire could

have been avoided if the various load bearing appliances or the various circuit

breakers in the premises had been turned off prior to reconnection.  To this end, plaintiff’s counsel submits that

ASPA should have made sure that all the panel breakers were switched off prior

to reconnection.  (P1.’s Summation

2.)  Effectively, counsel is advocating

that ASPA had such a duty of care.

 

No authority

was cited for this proposition, and we fail to see a basis for this

contention.  What, for instance, would be

the consequences of a general power outage, a not infrequent occurrence

on-island?  The logical extension of this

sort of argument is the requirement that ASPA would have to go about ensuring

that the circuit breakers of every one of its customers are switched off before

it can safely restore electrical service without fear of liability.  It takes little imagination to picture the

impracticality of such a state of affairs. 

In our view, overload hazards are better met by maintaining the onus with

utility consumers to ensure that their safety switches, circuit breakers,

wiring, and all other components of their respective electrical systems are

adequately designed, sized, and put in place.[2]

 

We conclude

that Seva’aetasi has failed to prove actionable negligence on ASPA’s part.  Judgment will accordingly enter in favor of

the defendant.

 

It is so

ordered.