part also includes the Court's conclusions of law.
The issue presented in this case is whether the defendant or its agents and employees negligently caused the fire which caused the damage to Pasargad and Schmeltzer. First, it is clear and the Court has found that the origin of the fire was within the work area used by Ms. Aurea Comsti and Ms. Katrina Little. The plaintiff contends that the calculator cord (cord) in question was crushed or crimped either between two dividers located between the work areas used by Comsti and Little, or when it passed through a hole apparently cut or drilled through the divider or dividers. The plaintiff offered the testimony of Thomas Gardner, a now retired fire inspector with the District of Columbia Fire Department, and William Seals, a Special Agent with Alcohol, Tobacco and Firearms. Both witnesses investigated the fire and both qualified as experts. But it was difficult for them to reconstruct the fire and to explain how the cord caused the fire.
Gardner and Seals stated their opinions that the wire was crushed or crimped between two dividers, or when it passed through a hole cut or drilled through the dividers or between the divider and the desk. The Court heard the testimony of Ms. Comsti and Ms. Little and they testified that there was only one divider located between the two work areas. They also testified that there was no hole cut or drilled into the divider. Ms. Julia Hockett, the supervisor of Ms. Comsti and Ms. Little at the time of the fire, testified that there was no hole in the divider. The Court accepts the testimony of Ms. Comsti, Ms. Little and Ms. Hockett and finds that there was one divider and that there was no hole cut through the divider.
Ms. Comsti testified in response to questions by the Court that the calculator was relatively easy to move which would suggest that it was not tightly pinched, crushed or crimped by the desk or the divider. Moreover, Ms. Hockett testified that the cord passed down between the desk and the divider and then under the divider. Mr. Little agreed with Ms. Comsti and Ms. Hockett. Ms. Hockett was familiar with the divider and the location of the cord because, as she testified, it was often necessary for her to go under the desk used by Ms. Comsti in order to check whether the "black box", apparently a modem for the word processor, had been accidentally turned off. This gave her the opportunity to view the divider and the placement of the cord.
The plaintiff argues that the cord could have been pinched or crushed if the desk was pushed tight against the divider. The difficulty with this argument is that, even assuming that the desk was pushed tight against the divider, the divider was covered with a soft, padded, fabric and it would not result in the harsh crushing or pinching that is apparently necessary to cause a fire. Weighing all of the above evidence, the Court finds that the cord was not crushed, or pinched, or crimped.
The Court gives great weight to the testimony of the expert called by the defendant. Edward M. Schaefer is an electrical engineer specializing in fire analysis and the investigation of fires and explosions including cause and origin.
It was his opinion that the fire was not caused by overheating, that the pressure, if any between the desk and the divider, was not sufficient to cause a fire, that while there was some evidence of arcing along the cord, it was not sufficient or at the location to justify a finding that it was the cause of the fire. His opinions are supported by the testimony of the defendant's witnesses. Moreover, while he responded to a question asked by counsel for the plaintiff that, if there was a missing portion of the cord, such missing portion may have been the cause of the fire, he noted that the standard length of cord for the calculator destroyed by the fire was six feet or 72 inches and the remains of the cord measured approximately 6 feet. The plaintiff failed to offer evidence that the cord was any longer.
Likewise, the Court accepts his testimony that the evidence of damage to the cord is inconsistent with an internal cause, but is consistent with damage or arcing or sleeving caused externally. Finally, the Court notes that the defendant's expert ascertained that the circuit breakers had not opened. If the plaintiff is correct about the origin of the fire, it would appear that the circuit breaker would have switched off.
It is noted that the plaintiff proffered that the fire was electrical in origin, but for reasons that are unclear to the Court, the plaintiff did not call an electrical engineer. Thus the testimony of the defendant's expert stands alone and is unrebutted. While the Court does not disregard the testimony of the experts called by the plaintiff, those experts are not electrical engineers and were unable to respond to certain questions concerning electrical problems. The plaintiff has failed to demonstrate that any action of the defendant or its agents and employees was negligent. It is noted that there is no suggestion in the record that the cord was defective or frayed or anything which would have put the defendant's employees on notice that the cord should not pass between the desk and the divider.
In sum, the Court finds that the cord was not crimped or crushed prior to the fire and since the plaintiff's theory is that the crimping or crushing of the wire caused it to overheat, or short-circuit, or to arc, it follows that plaintiff has not carried its burden. Plaintiff's burden is to prove its case by a preponderance of the evidence; that is, that something is more likely so than not so. The plaintiff has failed to meet its burden. The Court finds that the evidence on the defendant's side is more convincing. Even if the evidence was evenly balanced, the Court must find against the party having the burden.
The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. $ S 1332.
Judgment will be entered against the plaintiff and for the defendant. The case will be dismissed with prejudice.
An appropriate order has been entered.
ORDER - March 30, 1990, Filed
Pursuant to the accompanying Memorandum which constitutes the Court's findings of fact and conclusions of law, Fed. R. Civ. P. 52, it is hereby
ORDERED that judgment is entered for the defendant, and it is further
ORDERED that this case is dismissed with prejudice.
March 30, 1990