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

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

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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 reasonableguard 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