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 ser vice, alleging that the substantial smoke damage suffered to its inventory was caused by the security guard’s failure to notice and deal with th e fire in a prompt manner. It appears undisputed that the incident occurred la te at night, with the security guard being the only person in the mall at the time. The fire alarmsounded about 1 1/2 hours after the guard had last gone past the trash barrel

in which the fire was actually located. Although t he guard then promptly called the fire department, smoke from the barrel c aused a great deal of damage. Plaintiff’s claim is that, without other p ersons having been present, the guard either caused the fire or neglig ently failed to notice it when he had previously walked past the barrel.

As a tenant in the mall, plaintiff retailer presum ably 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 par ty beneficiary of the mall security contract. We will also assume that defend ant security service owed the third-party mall tenants a duty of reasona ble care and reasonable attention, in the performance of its contractual du ties. 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 faci e 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 intr oduce evidence in the first instance may challenge the burdened party’s ability to make out each element necessary to a recoverable claim. Here, th at means negligence and causation. Plaintiff responds to this burden as fo llows:

When the area of the fire was mopped there was a si ngle, 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 f or 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 g uard actually started the fire, or merely that he failed to observe an al ready 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 o f fact to conclude that, probably, the match actually started the fire. Pos sibly 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 durin g 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 re ader is free to guess. For such must be the position of any jury which would h ave to decide this matter. We cannot presume to know the course of tr ash 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 a ttention of the reasonable security guard. There is no uniformity to the cont ents of trash barrels. Considering the variety of patrons ambling through a mall, the various

retailers, the custodial and maintenance workers wh o 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 s ome 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 ca usation by a preponderance of evidence).

Although some might hesitate to put it in these ex act 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 ye ars old. Gallipo v. City

of Rutland , 163 Vt. 83, 86 (1994). Summary judgment for defe ndant is therefore granted.

Dated at Burlington, Vermont, ________________, 20 04.

_________________________ Judge