The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is Defendant's Motion for Summary Judgment
on Plaintiff's one count admiralty complaint. The cause of
action arises from a fire on board Defendant's pleasure craft
which engulfed adjacent vessels. The vessels were docked on the
Illinois River near Chillicothe, Illinois. The Court has
jurisdiction of this case pursuant to its admiralty
jurisdiction under 28 U.S.C. § 1333(1).
"A motion for summary judgment is not an appropriate occasion
for weighing the evidence; rather, the inquiry is limited to
determining if there is a genuine issue for trial." Lohorn v.
Michal, 913 F.2d 327, 331 (7th Cir. 1990). See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510,
91 L.Ed.2d 202 (1986). This Court must "view the record and all
inferences drawn from it in the light most favorable to the
party opposing the motion." Holland v. Jefferson National Life
Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). When faced with
a motion for summary judgment, the non-moving party may not
rest on its pleadings. Rather, it is necessary for the
non-moving party to demonstrate, through specific evidence,
that there remains a genuine issue of triable fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91
L.Ed.2d 265 (1986); Bank Leumi Le-Israel, B.M. v. Lee,
928 F.2d 232, 236 (7th Cir. 1991).
On September 27, 1990, a fire started aboard "Hanky's Panky,"
a houseboat owned by Defendants Henry and Marge Basfield. At
the time of the fire, the vessel was docked at Hamm's Holiday
Harbor in Chillicothe, Illinois. The fire spread to two
vessels, "My Genie" and "Summer Place," docked nearby.*fn1
Plaintiffs, as subrogees of their respective insureds, the
owners of "My Genie" and "Summer Place," filed a negligence
complaint in admiralty against the Defendants. Plaintiffs
assert that the fire occurred as result of one or more acts or
omissions of the Defendants, including the careless use of
smoking materials and improper maintenance of electrical and
wiring systems aboard the Defendants' vessel. (Complaint ¶
14-15). Plaintiffs allege that, as a result of the fire, "My
Genie" and "Summer Place" sustained damages in the amounts of
$98,289.21 and $31,000 respectively. (Complaint ¶ 16-17).
On the evening of the fire, Mr. Basfield arrived alone at the
vessel at approximately 7:30 p.m. (Henry Basfield Dep. 25). He
planned to install a new antenna he had purchased for the
television aboard the boat. (Id. at 21). Mrs. Basfield arrived
at the vessel at approximately 8:15 p.m. (Marge Basfield Dep.
3). She prepared food for Mr. Basfield and then left at 10:00
p.m. (Id. at 6, 11). Mr. Basfield fell asleep on the couch in
the pilothouse area while watching television at approximately
10:45 p.m., and awoke at approximately 11:00 p.m. (Henry
Basfield Dep. 49-50). After an undetermined amount of time
adjusting the antenna and watching television, Mr. Basfield
went below to the sleeping area and lied down on the bed. (Id.
at 56). Approximately five to ten minutes after lying down, Mr.
Basfield heard a "thump" and returned above to the galley area
where he observed a rapidly spreading fire in the pilothouse.
(Id. at 56-57). After attempting to extinguish the fire and
release an adjacent boat, a process which took approximately
fifteen minutes, Mr. Basfield dialed 911 at a nearby public
telephone. (Id. at 65-67). The police record shows that the
call was received at 2:17 am. (Id., Exhibit # 1).
Both Mr. and Mrs. Basfield smoke cigarettes. (Henry Basfield
Dep. 102-3; Marge Basfield Dep. 8). Mrs. Basfield admits that
she smoked aboard the vessel the night of the fire, but denies
smoking in the pilothouse area. (Marge Basfield Dep. 5-7). Mr.
Basfield denies smoking on the vessel the night of the fire.
(Henry Basfield Dep. 102-3). This denial is contradicted in the
deposition of fire expert Steven Shanks. Shanks testified that
while he was examining the remains of the boat, Mr. Basfield
admitted to smoking on the vessel the night of the fire.
(Shanks Dep. 111-112).
Plaintiffs retained Shanks, an experienced fire investigator,
as their expert witness. On September 30, 1992, Mr. Shanks
examined the remains of Defendants' vessel for approximately
seven to eight hours. (Shanks Dep. 33). He subsequently
completed a report stating that "[a]lthough the exact cause of
this fire remains undetermined, it is the determination of this
investigation that this is most likely an accidental fire
occurring within the pilothouse area." (Id., Exhibit # 3 at 6).
The report lists several "possible causes," including careless
use of smoking materials. Id. In his deposition, Mr. Shanks
stated that, although there was no direct physical evidence of
smoking in the pilothouse, based on the totality of the
evidence, he considered careless use of smoking materials to be
the "most possible" cause, the
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).