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Seek v. Verizon

Superior Court of Delaware, Kent

September 27, 2017

Ousmane Seek

          Submitted: July 10, 2017

          Noel Eason Primos, Judge

         Dear Mr. Seek, Ms. Sherlock, and Mr. Calistri:

         Before the Court is Verizon Delaware LLC's (hereinafter "Verizon") motion for summary judgment in an action initiated by Mr. Ousmane Seek (hereinafter "Mr. Seek"), who seeks to recover for damage to his home that resulted from a fire Mr. Seek claims was caused by a defective Verizon FiOS cable box. For the purposes of this decision, the facts are those as alleged by Mr. Seek.

          Mr. Seek was a Verizon customer and had Verizon FiOS equipment in his house. On September 10, 2016, a fire broke out at Mr. Seck's home. Mr. Seek and his wife saw fire coming directly out of the Verizon FiOS equipment in their home. The fire caused significant damage to Mr. Seck's house and personal property. Mr. Seek also suffered emotional distress and had to incur additional living expenses as a result of losing his home. A subsequent investigation by Assistant State Fire Marshal Michael G. Chionchio determined that a there was "[a] malfunction/failure with a router box for a home internet system [that] caused fire damage to the occupied dwelling." The assistant fire marshal's report was attached to Mr. Seck's complaint as an exhibit.

         Verizon argues that summary judgment pursuant to Superior Court Civil Rule 56 is appropriate because the Court's deadline to disclose experts and submit expert reports has passed and Mr. Seek has not designated any experts nor produced any reports. Verizon claims there is "absolutely no evidence to support Plaintiffs claim against Moving Defendant." In response, Mr. Seek claims that the report of the assistant fire marshal that he attached to his complaint constitutes an expert report.

         Summary judgment is appropriate when the moving party establishes that there are no genuine issues of material fact in dispute and judgment may be granted as a matter of law.[1] The Court must view the facts in the light most favorable to the non-moving party.[2] This Court has previously granted summary judgment where a plaintiff has failed to produce an expert opinion "when issues involving the standard of care, defects, or proximate cause relate to matters outside the common knowledge of the jury."[3]

         Verizon correctly notes that Mr. Seek has not produced any expert opinion evidence of causation and thus has not made a prima facie case of liability for negligence. Mr. Seck's proffer of the fire marshal's report does not constitute such evidence. The report indicates that there was a malfunction or failure in the Verizon equipment, but does not indicate that such malfunction or failure existed as a result of negligence. The fire marshal's report does not theorize at all as to probable causes of the equipment malfunction.

         This Court granted summary judgment under similar facts in State Farm Fire & Casualty Company v. Middlebury Corporation, [4]where a plaintiff was suing for damage caused by fires emanating from two deep-fryers.[5]The plaintiffs experts did not opine on the probable causes of the fires, only their origin, i.e., the fryers.[6]The Court held that "a lay jury cannot attribute the fires to a defect in the fryers or a problem with their installation in the absence of expert testimony. Because [plaintiff] has not offered any evidence to support that acts, omissions, or products for which the moving defendants would be responsible caused the fires, the defendants are entitled to summary judgment."[7] The Court finds this analysis convincing here, as Mr. Seek has failed to provide expert testimony regarding Verizon's alleged negligence or whether the fire was proximately caused by such negligence.

          The Court in State Farm specifically found that the doctrine of res ipsa loquitur did not operate to preserve the plaintiffs claims.[8] Res ipsa loquitur would permit the finder of fact to infer a defendant's negligence as the proximate cause of the damage from certain circumstantial evidence.[9] The doctrine may be invoked when:

(1) The accident must be such as, in the ordinary course of events, does not happen if those who have management and control use proper care; and
(2) The facts are such as to warrant an inference of negligence of such force as to call for an explanation or rebuttal from the defendant; and
(3) The thing or instrumentality which caused the injury must have been under the management or control (not necessarily exclusive) of the defendant or his servants at the time the negligence likely occurred; and
(4) Where the injured person participated in the events leading up to the accident, the evidence must exclude his own ...

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