but that the more probable cause was the blades/jaw connection. "You can get arching and burning while a blade is still in the jaw if there is sufficient resistance between the good contact on the blades and the good contact on the jaw. And that resistance could come about by corrosion and degradation of that jaw/blade contact." Id at 69.
Arching and burning may occur even while a blade is seated in the jaws if there is sufficient resistance between the good contact on the blades and the good contact on the jaws. The resistance causing the heat building is caused by contamination, and contamination or corrosion may occur even if the blades are fully seated in the jaws. (Tr. Jan. 17, 1996 pm at 10, 11).
Dr. McDuffie did not testify as to what Pepco did or failed to do that contributed to the arching. Nor did he testify as to the violation by Pepco of any industry standards in the installation, inspection or maintenance of the watthour meter. He hypothesized that corrosion could cause resistance which leads to heat build up and a loosening of the jaw/blade connection with further corrosion and eventual arching. Moreover, the corrosion could be caused by moisture in the atmosphere (Tr. Jan 17, 1996 P.M. at 11). Dr. McDuffie did not state that contamination or corrosion only occurs when a meter is negligently installed or inspected, or maintained. The only reasonable inference from his testimony is that contamination or corrosion may occur without fault.
I find that the origin of the fire was the watthour meter, which was mounted on the panel board in the basement of Morton and that the cause of the fire was an arching event that took place at the connection between the jaws and the blades of the watthour meter. I further find that the arching occurred because of heat build-up due to resistance caused by contamination or corrosion on the blades or jaws or both. Contamination causing a loosing of the connection between the blades and jaws can occur even if the blades are properly seated in the jaws. I further find that there is no evidence that Pepco negligently installed the watthour meter; nor is there any evidence that Pepco failed to properly inspect and maintain the meter. Although the meter reader did observe a crack in the plastic cover of the watthour meter during a routine reading of the meter on July 27, 1993, about a week prior to the fire, there is no evidence as to what, if anything, he was required to do under those circumstances other than record his observations. There is no evidence concerning what a reasonable and prudent electric power company was required to do under those circumstances, and there is no evidence that the crack in the plastic cap caused or contributed to the contamination or corrosion process.
Dr. McDuffie testified that watthour meters are not hermetically sealed so as to be dust or moisture proof. There was no evidence that the applicable industry standards require hermetically sealed watthour meters. Rajabi v. Potomac Electric Power Company, 650 A.2d 1319, 1322 (D.C. 1995).
Although the complaint alleged a claim under the doctrine of res ipsa loquitur, that theory appears to have been abandoned in the plaintiff's submissions in the joint pretrial statement. Nevertheless, the defendant raised the issue of its applicability in its portion of the joint pretrial statement, therefore, the Court has examined the evidence with that theory in mind.
"The principle of res ipsa loquitur permits a [finder of fact] to draw an inference of negligence based on special circumstances when direct evidence of negligence is lacking." Bell v. May Dept Stores Co., 275 U.S. App. D.C. 251, 866 F.2d 452, 455 (D.C. Cir. 1989) (internal citations omitted). In order to rely on the principle of res ipsa loquitur, a plaintiff carries the burden of establishing that: "(1) the event was of the kind that ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it was not due to any voluntary action or contribution on the part of the plaintiff." Barwick v. U.S., 287 U.S. App. D.C. 392, 923 F.2d 885, 887 (D.C. Cir. 1991)(internal citations omitted).
The evidence presented by the plaintiff was deficient in at least the first element so as to preclude resort to this principle. Dr. McDuffie testified that the loosing of the jaw/blade connection, which caused the arching could come about as a consequence of corrosion and that corrosion may result from moisture in the atmosphere (TR. Jan. 17, 1996 P.M. at 11). In the absence of evidence of industry standards requiring hermetically sealed watthour meters, it can hardly be found that the arching event responsible for the fire "was of the kind that does not occur in the absence of someone's negligence." Id. In the words of Dr. McDuffie, "accidents do occur, things do happen." Id., at 10. Moreover, even if applicable, the principle of res ipsa loquitur merely permits but does not require a finding of negligence. The Court does not believe that such an inference is warranted under the facts of this case even if it concluded that there was sufficient evidence to support the application of the doctrine.
Hartford also contends that Pepco breached its contract with its insureds by failing to supply electricity in a safe manner. However, the plaintiff has not pointed to any specific contractual obligation wherein the power company agreed to furnish electricity in a safe manner. Rather than as a consequence of a contractual duty, it appears that the duty relied on by the plaintiff is one of law which gives rise to a tort claim. See, Shubitz v. Consolidated Edison Co. of New York, 59 Misc. 2d 732, 301 N.Y.S.2d 926 (N.Y. Sup. CL 1969). But as we have seen, Hartford has not shown by any evidence, much less by a preponderance of the evidence, that Pepco breached any legal duty owed it.
Neither has Hartford proved any specific contractual duty to install equipment that would allow the safe distribution of electricity. Nor is there any such duty under the common law. "The defendant is not an insurer of the safety of its distribution system, and it is not liable for injuries resulting from its operation unless guilty of some negligent act or omission." Brown v. Potomac Electric Power Company, 236 F. Supp. 815, 817 (D.C.D.C. 1964).
Nor has Hartford proved that Pepco furnished it defective equipment. The mere happening of an accident does not give rise to an inference that the equipment was defective. It is the plaintiff's burden to prove by a preponderance of the evidence the nature of any defect and the causal relationship of the defect to the loss. Rajabi, 650 A.2d at 1321.
Lastly, although Pepco did agree to furnish, install and maintain the watthour meter supplied to Hartford's insureds (Pl's Exh. 17 at p. 9(5)), the plaintiff has failed to prove that Pepco breached this provision or that its breach proximately caused the fire. The burden is on the plaintiff to establish by expert testimony the standard of care for the inspection and maintenance of watthour meters and that a deviation from that standard caused the loss. Rajabi, 650 A.2d at 1322. This the plaintiff failed to do. Nor did Pepco's Rules and Regulations Electrical Service (Pl's Exh. 16) establish any standard of care for the inspection and maintenance of watthour meters, the breach of which would give rise to a cause of action.
For the reasons set forth, the Court concludes that Hartford Fire Insurance Company failed to prove by a preponderance of the evidence that its loss was caused by the negligence of the Potomac Electric Power Company or due to the breach of any contractual obligations undertaken by the Potomac Electric Power Company. An appropriate judgment accompanies this opinion.
May 22, 1996
PATRICK J. ATTRIDGE
UNITED STATES MAGISTRATE JUDGE