probability being over 50 percent. (Id. at 104, 107).
The analysis of a tort under admiralty law is guided by
general principles of negligence. Consolidated Aluminum Corp.
v. C.F. Bean. Corp., 833 F.2d 65, 67 (5th Cir. 1987), cert.
denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988).
The elements of a cause of action under common law negligence
are existence of a duty owed by defendant to plaintiff, breach
of that duty, and injury proximately caused by that breach.
Ward v. K Mart Corp., 136 Ill.2d 132, 143 Ill.Dec. 288,
554 N.E.2d 223 (1990).
Defendants argue that because the exact cause of the fire
remains undetermined, Plaintiffs cannot attribute the fire to
Defendants' alleged negligence. This is a question of proximate
causation; the Seventh Circuit has examined this issue before:
"[a plaintiff] must introduce evidence which affords a
reasonable basis for the conclusion that it is more likely than
not that the defendant's conduct was a substantial factor in
bringing about the injury complained of." Collins v. American
Optometric Association, 693 F.2d 636, 640 (7th Cir. 1982). "A
mere possibility of such causation is not enough; and when the
matter remains one of pure speculation or conjecture, or the
possibilities are at best evenly balanced it becomes the duty
of the court to direct a verdict." Id. (quoting W. Prosser, The
Law of Torts 241 (4th ed. 1971)).*fn2
On the causation issue, Plaintiffs refer to Shanks' opinion
that the "most possible cause" of the fire among the
possibilities listed in his report was careless use of smoking
materials, the probability being over 50 percent. (Shanks Dep.
104, 107). Defendants argue that this evidence must be excluded
because it is not based on a "reasonable degree of scientific
certainty" which, according to Defendants, is a requirement.
(Defendant's Motion ¶ 8(b), Defendants' memorandum p. 5-6).
Lanza v. Poretti, 537 F. Supp. 777 (E.D.Pa. 1982). In the
Seventh Circuit, however, there is no such requirement. U.S. v.
Cyphers, 553 F.2d 1064, 1072 (7th Cir.), cert. denied
434 U.S. 843, 98 S.Ct. 142, 54 L.Ed.2d 107 (1977). "[A]n expert's lack
of absolute certainty goes to the weight of his testimony, not
to its admissibility." Cyphers, 553 F.2d at 1072-73.
Because all direct evidence is often destroyed, fire experts
often must rely on circumstantial evidence in determining the
cause of a fire. See Breidor v. Sears, Roebuck & Co.,
722 F.2d 1134, 1138 (3d Cir. 1983) (where there is some logical basis
for expert's opinion, the testimony should be admitted, and the
credibility of the testimony is to be determined by the jury
and not the judge); Complaint of Ta Chi Navigation (Panama)
Corp., 504 F. Supp. 209, 231 (S.D.N.Y. 1980) (circumstantial
evidence combined with common sense and expert testimony may
establish the cause of fire). Here, the fire expert, Steve
Shanks, through a series of observations and inferences,
concluded that there was a more than 50% probability that
careless use of smoking materials was the most likely cause of
the fire. Although they remain listed on Mr. Shanks' report, he
ruled out several possibilities — arson, electrical,
television — based on the physical evidence available. (Shanks
Dep. 42-50, 85). Mr. Shanks determined that the fire originated
in the forward port side interior of the pilot house. (Shanks
Dep. 57). The nature of the fire that occurred, as observed and
described by Mr. Basfield, is consistent with Mr. Shanks'
theory. (Shanks Dep. 80-83). Thus, the "plaintiff's evidence
offered in opposition to the motion [for summary judgment] . .
. support[s] the inference that defendant's negligence was more
probably than not the proximate cause of the accident, [and] is
sufficient to defeat summary judgment even if it is not highly
convincing or persuasive." Bieghler v. Kleppe, 633 F.2d 531,
533 (9th Cir. 1980).
According to Mr. Shanks, the fire originated in the pilot
house. (Shanks Dep. 57). Mrs. Basfield admits that she smoked
aboard the vessel the night of the fire. Although
she admits to smoking only in the galley area, Mrs. Basfield
states that at one point she was in the pilothouse. (Marge
Basfield Dep. 8-9, 10-11). On the night of the fire, Mr.
Basfield states that he fell asleep for a short time in the
pilothouse. (Henry Basfield Dep. 49). In his deposition, Mr.
Basfield states that he occasionally smokes, but did not smoke
on the night of the fire. (Henry Basfield Dep. 103). This
statement is contradicted by Shanks who stated that on the day
of his investigation, Mr. Basfield admitted to smoking on the
boat the night of the fire. (Shanks Dep. 111-12). Clearly, the
evidentiary disputes on the "smoking" issue can only be
resolved by a jury. Because there is direct evidence of smoking
to be weighed by a jury, this case can be distinguished from
Atlantic Mutual Insurance Company v. Lavino Shipping Company,
441 F.2d 473 (3d Cir. 1971) which held that fire marshal's
testimony was inadmissible because it was too speculative
without direct evidence of smoking.
For the above stated reasons, Defendants' Motion for Summary
Judgment is DENIED. This matter is referred to the Magistrate
Judge for further proceedings. *fn1 A fourth boat was also
damaged, but it is not involved in this lawsuit.
*fn2 The functions of a motion for summary judgment and a
motion for directed verdict are essentially the same. Kirk v.
Home Indem. Co., 431 F.2d 554, 559 (7th Cir. 1970); see also
Hudson v. Twenty-Three East Adams Street Corp., 787 F. Supp. 141,
143 (N.D.Ill. 1992).
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