PEERLESS INS. v. GENELECT SERVICES

McCULLOUGH, Judge. Plaintiff Peerless Insurance Company (Peerless) provided fire insurance to Anthony and Debra Adams for their home located in the Biltmore Forest section of Asheville. On 18 September 2004, following the second of two hurricanes to strike Western North Carolina, a fire damaged the Adams residence resulting in a claim in excess of $400,000 which Peerless paid. Peerless, as subrogee of the insured parties (the Adamses), filed suit against defendant alleging that defendant's maintenance of a home generator caused the fire. Defendant filed a motion for summary judgment which was granted and from which Peerless appeals. For the reasons which follow, we uphold the superior court's order granting summary judgment in favor of defendant. The evidence before the trial court, viewed in the light most favorable to Peerless, showed that the generator was serviced on 9 August 2004, just over a month before the *897fire. The service technician was deposed and testified that he completed a standard service report noting nothing unusual and indicating the unit was in good working order, including the clamp, muffler and exhaust clip. He stated that had he noted anything unusual, he would have called it to the owner's attention or repaired it. Between 9 August 2004 and 18 September 2004, two hurricanes hit the Asheville area. The first was Hurricane Frances and was followed on 1 September by Ivan. The generator had operated each week during this period and at about 10:00 p.m. on 16 September 2004, began running more or less continuously until the Adamses' daughter noticed flames on the back of the house near the generator around 1:30 p.m. on 18 September 2004. On 23 September 2004, plaintiff's fire investigator inspected the Adamses' residence and found the extension pipe clamped to the exhaust pipe was facing the ground and about 2 inches into mulch surrounding the generator (and not at the 45° angle the service technician had indicated was normal). Mr. John Cavallaro, hired by Peerless, also inspected the generator on 27 September 2004, and found the same conditions present but could not find any malfunction which could have caused the fire. Peerless also hired an engineering company which determined that the heat of the exhaust could easily have started the fire by igniting the mulch. STANDARD OF REVIEW Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.R. Civ. P. 56(c). "The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent. . . ." Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992) (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). To survive a summary judgment motion, plaintiffs must show that either (1) defendant negligently created the condition, or (2) defendant negligently failed to correct the condition after actual or constructive notice of its existence. See France v. Winn-Dixie Supermarket, Inc., 70 N.C.App. 492, 320 S.E.2d 25 (1984), disc. review denied, 313 N.C. 329, 327 S.E.2d 889 (1985). Additionally, where there are many other reasonable explanations for the condition at issue, plaintiffs must present some factual evidence to remove their theory from the realm of mere speculation. See Williamson v. Food Lion, Inc., 131 N.C.App. 365, 369, 507 S.E.2d 313, 316 (1998), aff'd, 350 N.C. 305, 513 S.E.2d 561 (1999). Finally, the standard of review of an order granting summary judgment is de novo. Diggs v. Novant Health, Inc., 177 N.C.App. 290, 294, 628 S.E.2d 851, 855 (2006). NEGLIGENCE Plaintiff alleges negligence without more than mere speculation. Here the plaintiff's subrogee, Mr. Adams, testified that he had not checked on the generator between the date of the maintenance inspection and the date of the fire. He also stated that after the fire, firemen who had entered through the dining room window near the generator were all over. Between the time the inspection was made and the time the fire investigator for Peerless investigated the fire scene, there had been two hurricanes, torrential rainfalls, fire hoses with high water pressure, firemen crawling through the window above the generator, and the fire itself. Thus, any observation that the muffler was pointed down at a "slight angle" and covered with mulch is insufficient to submit the case to the jury. There are far too many other possible causes of the unsafe condition, and plaintiff gave no evidence to support the chosen theory that negligent maintenance occurred. It is well settled that a plaintiff must offer some factual evidence to show that his or her theory is more than mere speculation. Williamson, 131 N.C.App. at 369, 507 S.E.2d at *898316; Roumillat, 331 N.C. at 64, 414 S.E.2d at 343. With two hurricanes and the torrential rains and winds associated with these weather systems, the fact that Mr. Adams did not inspect the generator between the last maintenance visit and the fire, the exhaust pipe being found post-fire pointed down and close to the mulch surrounding the generator is not circumstantial evidence of defendant's negligent maintenance. N.C.P.I. - Civ. 101.45 (1985) defines circumstantial evidence as "proof of a chain or group of facts and circumstances pointing to the existence or non-existence of certain facts." The discovery of an exhaust pipe pointed directly at the mulch is not evidence of poor maintenance any more than it is of being displaced due to the force of the storm or the actions of the firemen. Such speculation cannot support Peerless' request for a trial. Defendant need not provide evidence that it was not responsible for causing the fire. Once defendant produced evidence which showed that the last maintenance inspection was normal, the burden shifted to plaintiff to produce specific evidence, not speculation, that defendant's actions were responsible for the fire. See Roumillat, 331 N.C. at 63, 414 S.E.2d at 342. As plaintiff has not been able to forecast evidence that defendant created the conditions causing the fire, and that any theory is mere speculation, the trial court's entry of summary judgment in favor of defendant is Affirmed. Judge BRYANT concurs. Judge STROUD dissents in a separate opinion.