JIMMIE ROGERS, Plaintiff–Appellee, ROBERT ROGERS, Plaintiff, versus SOUTH STAR LOGISTICS, INC., SURINDER SINGH GILL, Defendants–Appellants, GILL SINGH, Defendant.

 

No. 15-14224 Non-argument Calendar

 

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

 

2016 U.S. App. LEXIS 18463

 

 

October 13, 2016, Decided

 

 

JUDGES: Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.

 

OPINION

PER CURIAM:

This appeal arises from three evidentiary disputes in a negligence action. Plaintiff Jimmie Rogers sued Defendant Surinder Singh Gill and his employer, Defendant South Star Logistics, Inc., for negligent driving resulting in a traffic accident. After the jury awarded Plaintiff $500,000, Defendants moved for a new trial based on these three evidentiary disputes. The district court denied the motion. Defendants appeal; we affirm.

 

BACKGROUND

In March 2014, Plaintiff sued Defendants for negligence. Plaintiff alleged that on September 12, 2012, he was driving a pickup truck on a highway as part of a caravan of vehicles. According to the complaint, Plaintiff and the other drivers in the caravan were traveling slowly [*2]  in preparation for a right turn when Gill, driving a tractor-trailer for South Star, negligently collided into Plaintiff from behind.1

 

1   Plaintiff alleged several other claims, but the district judge granted judgment as a matter of law on each. They are not at issue here.

At trial, three eye-witnesses described the crash. Roughly two versions of the accident arose. Plaintiff and his cousin testified that they were travelling south on U.S. Highway 431 as part of a caravan of vehicles. Plaintiff was last in the caravan, and Plaintiff’s cousin was second to last. While traveling south on the highway, the caravan aimed to turn onto a small road that intersected the highway on the highway’s eastern side. Because a median prevented the caravan from turning left onto the road, the caravan traveled a short distance further south on the highway and U-turned from the southbound left lane. Both Plaintiff and his cousin verified that no traffic was oncoming and then U-turned into the right lane of the northbound side of the highway. Plaintiff and his cousin began slowly traveling northward towards the small intersecting road a short distance ahead. Plaintiff and his cousin each signaled that they were [*3]  turning right onto the road, but around the time of Plaintiff’s turn, Gill’s northbound tractor-trailer struck Plaintiff from behind.

Contradicting Plaintiff’s account, Gill testified that while he was driving north in the right lane of the highway, Plaintiff sped past him from the left lane, swerved into the right lane, and braked too quickly for Gill to stop.

 

DISCUSSION

Three rulings at trial, all objected to by Defendants, form the basis of this appeal. First, the district judge permitted Plaintiff’s counsel to read to the jury a letter written by Plaintiff’s doctor confirming the costs of anticipated spinal surgery for Plaintiff. Second, the district judge permitted Plaintiff’s counsel to solicit testimony describing a policy of defendant South Star’s concerning the distance that its drivers are expected to maintain between themselves and other vehicles. Third, Plaintiff was allowed to testify that he had not undergone surgery for the injuries he received in the accident because, according to his doctors, his blood pressure was too high to undergo surgery. Defendants asserted the above rulings to be erroneous and the grounds for a new trial. The district judge denied the motion. Plaintiff [*4]  appeals. We agree that the district court did not abuse its discretion either in the above evidentiary rulings or in its denial of Defendant’s motion for a new trial.

 

1. Standard of Review

[HN1] “We review rulings on the admission of evidence and motions for new trial for abuse of discretion.” Millennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1301 (11th Cir. 2007) (quoting Ad-Vantage Telephone Directory Consultants v. GTE Directories Corp., 37 F.3d 1460, 1463 (11th Cir. 1994)). “An abuse of discretion arises when the District Court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.” United States v. Gamory, 635 F.3d 480, 492 (11th Cir. 2011) (quoting United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005)).

[HN2] Even if “a District Court abuses its discretion in admitting evidence, we may still find the error harmless.” Sovereign Military Hospitaller Order of St. John of Jerusalem of Rhodes & of Malta v. Fla. Priory of Knights Hospitallers of Sovereign Order of St. John of Jerusalem, Knights of Malta, Ecumenical Order, 702 F.3d 1279, 1295 (11th Cir. 2012) (quoting Gamory, 635 F.3d at 492). “An evidentiary error is harmless if ‘sufficient evidence uninfected by any error supports the verdict, and the error did not have substantial influence on the outcome of the case.'” Id. (quoting United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007)). “[T]he inquiry is always directed to the same central question–how much of an effect did the improperly admitted or excluded evidence have on the verdict?” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1162 (11th Cir. 2004).

 

1. Dr. Burkus’s Letter Concerning Anticipated Costs for Plaintiff’s Surgery

The jury returned a verdict for Plaintiff in the amount of $500,000. One item of compensatory damages that had been requested by Plaintiff [*5]  was future medical expenses, which included the anticipated costs of a three-level spinal fusion surgery made necessary as a result of the injuries he suffered during the automobile accident. At trial, Plaintiff’s counsel indicated to the jury that the total future and past medical damages were $152,000, with between $114-115,0002 of those damages attributable to his orthopedic surgeon’s stated charge for this surgical procedure.

 

2   As discussed infra, the actual amount of the surgery was $114,453.00.

Defendants argue that Plaintiff failed to provide any non-hearsay evidence to support his assertion that the anticipated surgery would cost $114,453.00. Moreover, Defendants contend that the district court erred by permitting Plaintiff’s counsel to read to the jury the letter from Plaintiff’s orthopedic surgeon setting out the charge for the procedure. Given these alleged evidentiary deficiencies underlying the jury’s determination of damages, Defendants argue that they are entitled to a new trial. We disagree.

Shortly before trial, Plaintiff’s orthopedic surgeon, Dr. John Burkus, submitted to a videotaped deposition to be used at the trial of the case. During that deposition, Dr. Butkus testified [*6]  about Plaintiff’s injuries, his past medical treatment, and his anticipated future medical treatment. Defense counsel cross-examined him about the estimated costs for the surgical fusion procedure, which costs the doctor confirmed were laid out in the letter to which both the doctor and both counsel referred during the video deposition. It is this letter that set out the specific amount that the doctor would charge Plaintiff for the surgical procedure.

Prior to trial, but after the deposition, Defendants filed objections to various items on Plaintiff’s exhibit list, one of which was the above letter from Dr. Burkus concerning the cost for the surgical procedure. Defendants based their objection on Federal Rule of Evidence 802 and 901, stating that this “record” was not related to the accident. In its summary order ruling on these objections to the exhibit list, the district court sustained the objection to admission of the letter on hearsay grounds, but indicated that Dr. Burkus could testify as to his findings. The letter read as follows:

 

To Whom It May Concern:

[Plaintiff] has been under my care since his motor vehicle collision on September 12, 2012.

As a result of the September 12, 2012 collision, [Plaintiff] suffered [*7]  a traumatic cervical injury at the C3-4, C4-5 and CS-6 levels of his cervical spine. I relate all of his problems in this regard to the accident of September 12, 2012.

[Plaintiff] is a candidate for an Anterior Cervical Decompression, Fusion with Instrumentation, Iliac Crest Bone Graft and Allograft at C3-4 thru C5-6. This surgery entails hospitalization for 1-2 days. The surgeon’s fees for this procedure are approximately $34,975.00. The hospitalization fees are approximately $78,478.00. The total cost for this surgery would be approximately $114,453.00.

I have advised [Plaintiff] that even if he has this surgery, he will still more than likely suffer from some permanent disability in the form of pain, decreased mobility and strength.

If you have any questions or concerns, please do not hesitate to contact my office . . . .

 

 

When Dr. Burkus’s testimony via video deposition was presented at trial, defense counsel interrupted the video to protest what he knew was about to be Dr. Burkus’s impending discussion of this letter. During the sidebar discussion, the district judge indicated that the doctor could testify about what he wrote, stating, “I sustained the objection to the letter as such. [*8]  [Dr. Burkus] can testify to what he — to what he wrote and what he said and all. That was the point of all of this.”

The video deposition proceeded. In that deposition, Dr. Burkus noted that he would be using electronic records to refer to Plaintiff’s condition and treatment. He discussed the injuries Plaintiff suffered as a result of the accident, including the need for the surgical fusion. He was subject to cross-examination by Defendants’ counsel. Of pertinence to the present issue, the doctor testified specifically about the charge for performing fusion surgery on Plaintiff. Specifically, defense counsel3 referred the doctor to the letter in question (marked as an exhibit for the deposition) and Doctor Burkus confirmed that this letter, which he wrote and signed, concerned “the surgeries that [Plaintiff] would need and the anticipated costs for these services.” Doctor Burkus indicated that he writes such letters to patients considering surgery to alert them both to the total cost of the procedure and to their own co-pay responsibility. Further, he testified that the costs cited in the letter are the usual and customary charges for the procedure. Moreover, counsel questioned the [*9]  doctor as to the possibility of a lower cost should only a one or two-level fusion be performed, instead of a three-level.

 

3   Because the transcripts of the deposition found in the record are partial transcripts and skip many pages in the complete transcript, it is not altogether clear which attorney is asking which questions. As best we can determine, it looks as if defense counsel is asking the above questions. Indeed, the district court indicated that defense counsel cross-examined on this matter. But our analysis is unchanged even if it were Plaintiff’s counsel who was the questioner. The topic was covered during the deposition and defense counsel had an opportunity to ask any questions it chose to impeach Dr. Burkus’s determination of the reasonable cost of the procedure.

Dr. Burkus, however, never repeated during his testimony the precise number that he had set out in the letter as being the reasonable and anticipated charge for the surgical fusion. Instead, with both him and counsel well aware of the amount of the costs set out in the letter, everyone during the deposition simply referred to the letter during the discussion of that matter. Presumably, Plaintiff’s counsel never envisioned [*10]  that the letter, marked as an exhibit to the deposition, would not be admitted along with the deposition at trial.

At the conclusion of the playing of the video, the district judge noted that his assumption had been that the doctor would actually state during his testimony the amount of the costs of the surgery that the doctor had calculated. The judge initially stated:

 

I was expecting Burkus to testify on there as to what he was — he had said that the reasonable and necessary charges for that surgery would be, and he didn’t go into that. My ruling on sustaining the exhibit was that I didn’t want the exhibit to be a document that would go back to the jury since the doctor could testify to it. I’m not inclined at this time to let the letter that he referred to in the deposition be read without it coming in as an exhibit.

 

 

In response, Plaintiff’s counsel argued, “Dr. Burkus testified that all his charges related to past and future would be reasonable and necessary. . . . I think I’ve laid the predicate for that to come in.” Having heard from both counsel, the district judge announced, “I’m going to allow the plaintiff’s counsel to read Dr. Burkus’s letter, but it won’t come in as an exhibit.” [*11]  Accordingly, trial resumed and Plaintiff’s counsel read the letter to the jury in order to establish that $114,453.00 was what Dr. Burkus would charge for the surgery.

Defendants objected and, after trial, they moved for a new trial arguing that the letter constituted inadmissible hearsay and should therefore not have been read to the jury. Further, because damages are an essential element of a negligence claim, they argued that Plaintiff had failed to prove this element of his claim. The district judge denied the motion for a new trial and reasoned as follows:

 

[T]he court’s [decision to allow Plaintiff’s counsel to read the letter] was not erroneous and was consistent with its earlier order. The letter did not come in as an exhibit, as the order provided. Additionally, in the video deposition Dr. Burkus authenticated the letter, stating that it was “a letter I wrote and signed regarding the surgeries that [Plaintiff] would need and the anticipated costs for these services.” Defense counsel also cross-examined Dr. Burkus on the letter. During cross-examination, Dr. Burkus confirmed it was a letter he wrote, dated July 25, 2013, and he discussed how the letter was written and the method he [*12]  used to determine the costs of the past and future medical procedures.

Thus, defense counsel had an adequate opportunity to cross-examine Dr. Burkus about the letter, and did so in the video deposition. Further, the court’s ruling at trial was consistent with its pretrial order regarding the letter. For these reasons, the court finds that this ruling did not affect the Defendants’ “substantial rights” and that the reading of the letter is not an adequate ground to justify a new trial under Fed. R. Civ. P. 59.

 

 

In this appeal, Defendants raise essentially the same argument: the letter constitutes hearsay and admitting the letter prejudiced Defendants because Plaintiff otherwise failed to establish the cost of the anticipated surgery. As discussed above, we review the district judge’s decision for abuse of discretion and, if an error occurred, we reverse only if the error substantially influenced the outcome of the action.

Given the circumstances described above, we find no abuse of discretion in how the district court handled this matter. Clearly, during his deposition, Dr. Burkus adopted the number stated in the letter as the reasonable costs of the surgical fusion. Both Plaintiff’s and defense counsel [*13]  questioned him about this matter, and both knew full well what the number was. Albeit Plaintiff’s counsel could have avoided any question about this issue had he simply asked the doctor to state for the record the number that both defense and Plaintiff’s counsel, as well as the doctor, were referring to during the testimony,4 there was no doubt about what that number was nor that Dr. Burkus adopted the number in his testimony setting out the reasonable costs of the surgery.

 

4   Given our determination that the district court did not abuse its discretion in its handling of this issue, we do not need to decide whether the district court was wrong in its initial conclusion that the doctor’s letter setting out the fees for the surgical procedure was hearsay.

In sum, we find that the district judge did not abuse his discretion in allowing Plaintiff’s counsel to read Dr. Burkus’s letter to the jury.

 

III. Admission of South Star’s “Following” Policy

At trial, Plaintiff’s counsel solicited testimony from South Star’s corporate representative that a company policy “required [South Star] drivers to stay a minimum of seven seconds behind any vehicles that they’re following down the road.” Counsel further [*14]  alluded to the policy during a subsequent cross-examination of Defendants’ expert witness.

Defendants argue that the district judge erred in admitting evidence of South Star’s “following” policy because the case did not involve a situation in which Defendants’ truck driver was arguably driving too close, meaning the policy was irrelevant. We find no abuse of discretion. The district court noted that there was evidence that would have supported a theory that the truck driver hit Plaintiff’s vehicle because the driver failed to keep enough distance between his vehicle and traffic ahead of him. In addition, Defendants had the opportunity to adduce evidence and argue that non-adherence to the above policy was irrelevant to the cause of the accident.

In addition, substantial evidence of negligence existed otherwise. See Brown v. Cedar Rapids & Iowa City Ry. Co., 650 F.2d 159, 163 (8th Cir. 1981) (“[I]f the court had erred in admitting [an inapplicable safety] standard, there was such strong other evidence of negligence . . . that the . . . standard was merely cumulative evidence. Erroneous admission of cumulative evidence is harmless error.”). [HN3] In Alabama, “[w]hether a person involved in an accident acted reasonably in operating his motor vehicle depends on all of the circumstances [*15]  surrounding the accident.” Senn v. Ala. Gas Corp., 619 So.2d 1320, 1322 (Ala. 1993).

Specifically, there was evidence (1) that Plaintiff and his cousin each used their turn signals, (2) that Gill admitted seeing the two vehicles’ signals, (3) that other vehicles behind Plaintiff shifted from the right lane to the left lane to avoid crashing into Plaintiff, (4) that soon after the crash, Gill failed to offer an explanation to the investigating officer for not shifting to the left lane, (5) that neither Plaintiff nor his cousin heard Gill brake, (6) that Gill’s elevated position in the tractor-trailer allowed him to view the road better than an ordinary driver, and (7) that Gill could have seen Plaintiff from a quarter to a half mile away and could have stopped his tractor-trailer within that distance.

Accordingly, even had there been any error in admission of South Star’s policy, the error was harmless. In short, we find no reversible error based on the district court’s admission of evidence of this policy.

 

1. Blood Pressure Testimony

Finally, Defendants argue that the district court should have granted their motion for a new trial based on Plaintiff’s testimony and argument that he had failed to have the surgical fusion procedure done in the [*16]  period of time since the accident because his doctor had refused to perform the procedure until Plaintiff’s blood pressure could be lowered. Defendants argue that Plaintiff’s response constituted hearsay as it was Plaintiff’s doctor who made the diagnosis of high blood pressure, not Plaintiff. We find no abuse of discretion by the district court in permitting Plaintiff to so testify.

In arguing that Plaintiff’s injuries were not as serious as he alleged, Defendants had focused on the fact that Plaintiff had failed to have the surgery performed, even after he had obtained “Obamacare” insurance. In particular, defense counsel pushed Plaintiff on this point during cross-examination. In response, as set out above, Plaintiff explained that it was his doctor’s decision not to perform the surgery–based on Plaintiff’s high blood pressure–that had prompted Plaintiff’s delay in getting the surgery.

The district court found no ground for a new trial based on the above because defense counsel had invited the response through his questioning of Plaintiff.5 We agree. See United States v. Parikh, 858 F.2d 688, 695 (11th Cir. 1988) (upholding admission of out-of-court statements by a government witness, when responding to an inquiry by defense counsel, on ground [*17]  that counsel “invited” the error). Accord United States v. Sarras, 575 F.3d 1191, 1216 (11th Cir. 2009) (“Because [the defendant]’s question elicited the very testimony about which he now complains, he is entitled to no relief.”); United States v. Driver, 242 F.3d 767, 770 (7th Cir. 2001) (Easterbrook, J.) [HN4] (“If . . . defense counsel elicits testimony at trial, the defendant can’t argue on appeal that the evidence was hearsay and should have been excluded.”).

 

5   Both parties assume that Plaintiff’s testimony constituted hearsay. We note, however, that [HN5] a witness may explain why he has or has not taken a particular action without necessarily running afoul of the rule against admission of hearsay evidence, which is evidence offered to prove the truth of the matter asserted. See United States v. Sanchez, 32 F.3d 1002, 1005 (7th Cir. 1994) (“The testimony at issue here was not offered to prove the truth of the matter asserted, but only to prove why [the listener] acted as he did. It was not hearsay, and it was not error for the district court to admit it.”); see also United States v. Rivera, 780 F.3d 1084, 1092 (11th Cir. 2015) (explaining that statements “offered only to show their effect on the listener” are not hearsay because the statements are offered not for the truth of the matter asserted but to “provide[] a context to assess [listener]’s response”). Nevertheless, even assuming that the statement was hearsay, Defendants [*18]  invited the response.

In sum, Defendants invited Plaintiff’s testimony. Moreover, even had jurors considered Plaintiff’s testimony as establishing the truth of the matter asserted–that Plaintiff actually has high blood pressure–Defendants would not have been unfairly prejudiced by that inference. Plaintiff based his claim of damages on past medical bills and the existence of serious spinal injuries that he sustained as a result of the collision. High blood pressure was neither a result of the collision nor a ground for damages. Hence, whether or not Plaintiff had high blood pressure, this matter did not factor into the calculation of damages. Plaintiff’s testimony that his doctors had used his high blood pressure as their explanation for not performing the surgery prior to trial was, however, relevant to negating Defendant’s argument that the delay in the surgery demonstrated that Plaintiff had not, in fact, suffered the injuries he alleged. Thus, we find no abuse of discretion by the district court on this ruling.

 

CONCLUSION

We find either no reversible error in any of the challenged evidentiary rulings. Accordingly, we AFFIRM

United States Court of Appeals,

Seventh Circuit.

James Blasius, Plaintiff–Appellant,

v.

Angel Automotive, Inc., Defendant–Appellee.

No. 15–2994

|

Argued February 19, 2016

|

Decided October 12, 2016

 

 

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 13–CV–00046–JVB–CAN—Joseph S. Van Bokkelen, Judge.

Attorneys and Law Firms

Brandon J. Wilson, Attorney, Howard & Howard Attorneys PLLC, Royal Oak, MI, for Plaintiff–Appellant.

Linda A. Polley, Andrew S. Williams, Attorneys, Hunt Suedhoff Kalamoros LLP, Fort Wayne, IN, for Defendant–Appellee.

Before Manion and Rovner, Circuit Judges, and Blakey, District Judge.*

Opinion

Blakey, District Judge.

 

*1 In July 2009, Appellant James Blasius purchased a used 2005 Ford Excursion. In June 2012, Blasius entrusted Appellee Angel Automotive, Inc. (“AAI”) with upgrading the vehicle to make it “safe” and “reliable.” Blasius alleges that AAI negligently betrayed that trust when, one day and about 200 miles after pick up, the vehicle caught fire and was destroyed. The district court granted summary judgment for AAI after concluding that: (1) Blasius failed to present evidence that AAI’s work proximately caused the fire; and (2) the doctrine of res ipsa loquitur did not apply. Blasius appealed. For the reasons explained below, the decision of the district court is REVERSED.

 

 

Background & Procedural History

In July 2009, Blasius, a resident of Michigan, purchased a used 2005 Ford Excursion for towing his motorcycle racing trailer. Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 1; Blasius Dep. 19:1–7. Over the next three years, Blasius invested in approximately $70,000 worth of parts, accessories, and modifications to the vehicle.1 Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 4.

 

In the summer of 2012, Blasius next contacted AAI, an automotive repair shop located in Elkhart, Indiana, to further improve the Excursion’s performance. Blasius outlined several components he wanted inspected and improved and gave AAI an “open checkbook” for the repairs. Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 8; Blasius Dep. 37:19–22. These components included, among others, the vehicle’s engine, suspension, turbocharger, intake and exhaust manifolds, exhaust, transmission, brakes, spark plugs, and oil pump. Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 8. AAI not only agreed to Blasius’ requests, but also “gave the truck a complete once-over” and recommended additional modifications, which Blasius approved. Angel Dep. 14:2–3, 44:11–15.

 

In June 2012, AAI mechanics Thomas Angel and Daniel Fine performed the desired work. Id. at 11:10–13; Fine Dep. 62:20–22. Due to the extent of Blasius’ requested modifications, AAI first removed the Excursion’s body from its chassis. Angel Dep. 14:2–22; Fine Dep. 43:14–15. This process involved disconnecting (and eventually reconnecting) the vehicle’s various fluid transfer lines, including coolant lines, brake lines, and power steering hoses. Angel Dep. 15:11–15.

 

After removing the vehicle body, AAI’s overhaul included replacing the Excursion’s fuel pump, auxiliary fuel filter, and fuel lines. Id. at 19:6–9, 19:23–20:3, 27:2–4, 43:11–20; Fine Dep. 23:18–20, 29:6–11, 36:22–37:2, 39:20–40:5. The new fuel lines ran from the fuel tank at the rear of the vehicle to the newly installed fuel pump, to an auxiliary fuel filter, and then finally to the topside of the driver’s side of the engine. Angel Dep. 22:9–23:20. A return line was run out of the engine back to the fuel tank. Id. at 24:1–6.

 

*2 AAI originally promised to complete work by Thursday, June 21, 2012. Id. at 44:20–46:2; Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 12. On June 20, 2012, however, AAI informed Blasius that the Excursion was not ready for pick up. Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 12. Aware that Blasius desired to take the truck on an upcoming trip to northern Michigan, Angel promised Blasius that the vehicle would be available the following Thursday, June 28, 2012. Angel Dep. 45:1–3, 47:3–10. At his deposition, Angel testified that these circumstances created a “heightened sense of urgency” within AAI to complete the repairs. Id. at 48:9–16. Angel testified that, by the time AAI finished working on the Excursion, there was little additional work that could have been done to the vehicle. Id. at 46:24–47:2.

 

On June 28, 2012, Blasius picked up his Excursion and drove approximately 200 miles back to his Michigan home.2 Id. at 48:17–19; Blasius Dep. 44:17–19. Upon arrival, Blasius emailed AAI and complained of new or persisting issues with the vehicle’s performance. Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 13. Blasius described “limited pull off the line,” heavy exhaust smoke, and a “rattling or pinging or knocking” at low rpm’s. Angel responded on the morning of June 29, 2012 and promised to resolve the issues, but did not discourage Blasius from driving the truck in the interim. Id.; Angel Dep. 51:12–18.

 

Later on June 29, 2012, Blasius left his home in the Excursion with his motorcycle trailer in tow. Blasius Dep. 46:12–21. Blasius’ adult son and his son’s friend were passengers. Id. at 5:13–17. At his deposition, Blasius testified that, after traveling approximately 12 miles, Blasius’ son observed smoke emanating from the vehicle’s interior vents. Id. at 47:1–7. As a result, after approximately 30 seconds, Blasius began to pull over to the shoulder. Id. at 47:15–17. As Blasius looked in his review mirror, he observed additional smoke behind the vehicle. Id. at 47:18–23. Blasius also discovered that his parking, emergency, and trailer brakes were non-responsive. Id. at 48:6–49:15. Smoke billowed into the vehicle cabin as Blasius swerved on and off the shoulder in an attempt to slow the vehicle. Id. at 49:16–23.

 

The Excursion eventually came to a stop after approximately three-quarters of a mile. Id. at 50:1–3. After escaping the vehicle, Blasius specifically observed burning diesel fuel running along the bottom and sides of the vehicle. Id. at 50:14–52:1. Blasius unsuccessfully attempted to subdue the fire with multiple fire extinguishers. Id. at 52:23–55:14. Sadly, by the time firefighters arrived, the vehicle was destroyed and the motorcycle trailer was damaged. Id. at 68:13–14; Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 14.

 

After the fire was finally extinguished, the Excursion was loaded onto a flatbed wrecker and taken to a nearby storage facility. Blasius Dep. 66:3–6. When Blasius notified Angel of the situation, Angel admitted to Blasius that he believed a fuel leak may have caused the fire. Id. at 55:1–5.

 

Shortly thereafter, James Raad, a certified vehicle fire investigator, conducted an inspection of the vehicle remnants. Raad Aff. 1. Raad determined that the fire originated under the vehicle, but could not ascertain conclusive evidence of its exact cause. Id.

 

On January 22, 2013, Blasius filed suit against AAI in the Northern District of Indiana for negligence and breach of contract. Compl., ECF No. 1. In July 2013, Blasius’ own expert, Adam Hooker, inspected the disassembled remains of the vehicle, and rendered various conclusions about the cause of the fire. Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 11 at 1. Among the conclusions in his report, Hooker found that the diesel and brake fluid systems (worked on during AAI’s overhaul) were “more likely related to the cause of the fire” and the “diesel fuel or brake fluid” was the “first fuel(s) ignited during the progression of the fire.” Id.

 

*3 On March 4, 2015, the district court granted AAI’s motion for summary judgment. Op. and Order, ECF No. 68. In its ruling, the court found that Blasius “failed to present evidence showing that [AAI’s] modification to the [Excursion] caused the fire.” Id. at 5. Additionally, the court held that the doctrine of res ipsa loquitur did not apply. Id. at 6–7. Blasius challenges both aspects of the district court’s ruling.

 

 

Discussion

[1] [2]We review the district court’s grant of summary judgment de novo. Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund, 778 F.3d 593, 601 (7th Cir. 2015). Summary judgment is appropriate only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In making this determination, we view all evidence in the light most favorable to, and derive all reasonable inferences in favor of, the nonmoving party. Cairel v. Alderden, 821 F.3d 823, 830 (7th Cir. 2016). Summary judgment is warranted only if, after doing so, we determine that no jury could reasonably find in the nonmoving party’s favor. McDonald v. Hardy, 821 F.3d 882, 888 (7th Cir. 2016).

 

 

1. Proximate Cause

[3] [4] [5] [6]Under Indiana law, proximate cause “is an essential element of a negligence action.” Carson v. ALL Erection & Crane Rental Corp., 811 F.3d 993, 998 (7th Cir. 2016) (quoting Hassan v. Begley, 836 N.E.2d 303, 307 (Ind. Ct. App. 2005)).

Proximate cause in Indiana negligence law has two aspects. The first—causation in fact—is a factual inquiry for the jury. If the injury would not have occurred without the defendant’s negligent act or omission, there is causation in fact. A second component of proximate cause is the scope of liability. That issue, which is also for the trier of fact, turns largely on whether the injury is a natural and probable consequence, which in the light of the circumstances, should have been foreseen or anticipated. Under this doctrine, liability may not be imposed on an original negligent actor who sets into motion a chain of events if the ultimate injury was not reasonably foreseeable as the natural and probable consequence of the act or omission.

 

[7]City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1243–44 (Ind. 2003) (internal citations and quotations omitted). Proximate cause “must be based upon provable facts and cannot be based upon mere guess, conjecture, surmise, possibility or speculation.” Collins v. Am. Optometric Ass’n, 693 F.2d 636, 640 (7th Cir. 1982). In other words, the factual evidence supplied must reflect some “reasonable certainty or probability.” Mr. Bults, Inc. v. Orlando, 990 N.E.2d 1, 5 (Ind. Ct. App. 2013).

 

[8]In support of its summary judgment ruling, the district court cited the “dearth of evidence” connecting Blasius’ vehicle fire with AAI’s repair work, and stated that “[h]ypothesis alone is not enough to subject [AAI] to liability.” Op. and Order 5, ECF No. 68. Our review of the record, however, demands a different conclusion.

 

Hooker’s written report—which accompanied Blasius’ response to AAI’s summary judgment motion—noted the “extent of the disassembly work that Angel Automotive had to perform in order to install various upgraded components and to replace the fuel lines.” Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 11 at 1. According to Hooker, to achieve this requisite level of disassembly, numerous connections “had to be disconnected and reconnected.” Id. Hooker’s observations were confirmed by both Angel and Fine. Angel Dep. 14:2–22, 15:11–15; Fine Dep. 43:14–15. Hooker further noted that these connections “were located within numerous fluid moving systems within the vehicle” and that the fluids contained therein—diesel fuel, power steering fluid, brake fluid, motor oil, window washer fluid, and anti-freeze—“can all be ignited via hot engine and exhaust components.” Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 11 at 1.

 

*4 Hooker opined that these fluid systems “were all interacted with during the process of Angel Automotive completing their work,” and that the misalignment, forcing, cross-threading, over torqueing, or under torqueing of any fluid system connections “could lead to a leak that under the proper conditions … would produce a fire.” Id. Hooker concluded that, absent “documentation that the proper torque values were applied to all connections within the vehicle, the potential of a leak in one of these systems cannot be eliminated as a possible cause of this fire.” Id. at 2.

 

Hooker’s report further concluded that the fire originated “in an area that encompasses the left rear portion of the engine compartment, the bulkhead area, and the area in between the transmission and the left side body and door panels.” Id. at 2. The report highlighted that “the fuel lines leading from the fuel tank to the fuel injection pump are located in this area,” as are the “brake system master cylinder and reservoir”—all of which were “manipulated and/or removed and reinstalled” during AAI’s work on the vehicle. Id. According to Hooker, as noted above, these systems were “more likely related to the cause of the fire” and “diesel fuel or brake fluid” was the “first fuel(s) ignited during the progression of the fire.” Id.

 

The district court’s ruling failed to address any portion of this written report. Instead, the court highlighted a selective, two-page portion of Hooker’s 59-page deposition transcript in which Hooker did not pronounce, in response to certain questions, that the fire was “more likely than not” caused by AAI’s repair work. Op. and Order 5, ECF No. 68. This under-inclusive analysis misconstrues Hooker’s overall assessment.

 

A comprehensive reading of Hooker’s deposition, on the other hand, confirms that, time and again, his testimony reinforced the expert opinions set forth in his written report. During questioning, Hooker maintained that a fluid system leak constituted the “most likely scenario” for the June 29, 2012 fire. Hooker Dep. 45:13–46:1. He further agreed that “[b]ut for the removal and the manipulation and disassembly” of fluid transfer lines by AAI, the fire would not have occurred. Id. at 53:24–54:3.

 

Admittedly, Hooker also noted some limits to his overall assessment. Hooker acknowledged, for example, that due to the delayed nature of his examination, he did not possess definitive proof of causation:

1. In your expert opinion, what caused this fire?
2. I feel that this fire was caused by a possible leak in the fluid system that came in contact with a heated portion of the exhaust system.
3. So is it your testimony that you were able to determine a cause of this fire?
4. No, I was not. I have no proof of that and that’s why I did not.
5. So it is not your expert opinion that the fire was caused by a leak in the fluid system?
6. I feel it’s potentially caused by that, but I don’t know that because I didn’t see any of this for myself.

…

1. I’m just trying to determine whether or not your report is just listing a possible cause of the fire or it’s your expert opinion based on your experience that this is the cause of the fire in your opinion.
2. This is my opinion of what potentially may have taken place. I don’t know what took place and I don’t know what it looked like because there was nothing for me to really look at. Does that, does that help?
3. Yeah, I believe so. So just so we’re clear, you believe that it is possible that a fuel leak caused the fire but you were unable to determine whether or not that actually occurred in this case.

*5 A. I believe a fluid leak, not a fuel. A fluid leak. One of them.

1. Possibly caused the fire.
2. Correct.

Hooker Dep. 45:13–46:1, 46:14–47:4 (emphasis added). Upon further questioning, however, Hooker clarified both the scope and basis of his position:

1. Is it fair to say that something that Angel did was not done properly to cause this fire?
2. That’s my, that’s my thoughts on this, is that some of the work that Angel did led to this event taking place.
3. “This event” being the fire.
4. Yes.
5. But because you didn’t have an opportunity to actually inspect the vehicle intact, you can’t say 100 percent what it was.
6. No.
7. So what, what would you say your opinion is as to the cause of the fire in this case?
8. My, my opinion of what may have caused this is a leak in one of the fluid systems that were involved in Angel Automotive’s disassembly, replacement, and reassembly of those fluid moving systems causing a leak. Not causing a leak; having a leak. And finding an ignition source within that vehicle. My, my [sic] thought is is [sic] that there’s a portion of the exhaust that I saw in one of, those are Angel Automotive’s photos I think, of the work done that shows a portion of the exhaust that wasn’t insulated? So that, also coupled with what kind of damage I could see on some of Mr. Raad’s photos kind of, of [sic] gave me that very broad area where I felt the fire may have come from.
9. Is it true in speaking with Mr. Blasius that he told you he saw diesel fuel leaking from the engine?
10. Yes, and that also—I should have said that. And also that Mr. Blasius’ conversation with me, it also plays to leading me back into that area which helps me find kind of increased damage in that area, plus that one portion of exposed exhaust system in there.
11. So just to be clear, is it your opinion that if diesel fuel or one of the other liquids, whether it be coolant or brake fluid or oil, if one of those fluids leaked … that those fluids could be ignited by the exhaust, the exposed exhaust?
12. Yes, I think that is possible.
13. And is it your opinion that that is more than likely what occurred in this case?
14. Yes, that’s my most likely thought on what led this fire to happen.
15. If Angel had not done the work on this vehicle that it did, do you believe that this vehicle would have caught fire as it did where it did?

…

1. Yeah, I don’t know that but it, in the chain of events it, with all of that stuff being manipulated by them and then shortly after this fire taking place, when I look at that as a whole, yes. I think that if that work hadn’t had been done, this exact thing probably would not have happened.

Hooker Dep. 53:24–56:4 (emphasis added).

 

When Hooker’s deposition testimony is considered in its entirety, his reluctance to use the exact phrase “more likely than not” better reflects confusion regarding the adverse questioning (and the legal nuance of burdens of proof) rather than any meaningful hesitancy on the reasonable probability of causation:

1. So in your opinion is it more likely than not that Angel Automotive’s work caused the subject fire?

*6 A. I think it’s possible, yes.

1. So your testimony is it’s possible that they were the cause of the subject fire, not that it’s more likely than not. Is that correct?
2. I didn’t understand that question. Is it possible versus more likely than not? What’s the difference?
3. Possible means it’s a possibility.
4. It absolutely is a possibility.
5. And that’s your testimony. It’s a possibility. Or is it more likely than not the cause?

…

1. I, I don’t see—I’m struggling with the two. They kind of seem very close to me. “More likely than not” is a “possibility.” I don’t, I don’t understand the question, I guess. I absolutely think it’s possible, if that’s what you’re asking. I absolutely think it’s possible.
2. More likely than not simply means that it’s more than 50 percent likely that that occurred. Or is it still your testimony that—
3. Can I think it’s possible and more likely than not?

[Blasius’ attorney]: I don’t think he understands the question.

[Hooker]: I don’t. I do not understand that. I absolutely think it’s possible. Are we going to put a percentage on how [confident] I am in thinking it’s possible?

1. I’m just trying to determine whether or not you believe it’s a possibility that their work caused it.
2. I absolutely believe that.
3. Or that it’s your expert opinion that their work did cause it.
4. I don’t know if it caused it.
5. It’s just that it’s possible based on the timeline that it caused the fire?

…

1. More than just the timeline. The timeline and the extent of the work that’s been done, yes. I, yes. I absolutely think it’s possible.

Hooker Dep. 57:1–58:15. In assessing the above testimony, we must remember that Hooker’s expertise lies in the field of fire investigation, not law. As such, it is improper to reject the fair import of his testimony based upon an apparent inability to decipher legal intricacies with which trained attorneys so often struggle.

 

[9]Moreover, we must remain cognizant of the proper purpose for which Blasius offers Hooker’s expert opinions regarding causation. At the summary judgment phase, Hooker merely helps Blasius get to a fact finder; Hooker does not, however, serve as the fact finder. To achieve the former, a plaintiff need only produce evidence sufficient to potentially persuade any reasonable jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (“[S]ummary judgment will not lie … if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”) (emphasis added). In essence, Appellee asks us to raise this standard and require that a plaintiff, at the summary judgment stage, show actual persuasion of a particular person to a particular degree of certainty. Obviously, we decline that invitation here.

 

At summary judgment, Hooker’s expert opinions regarding causation remain sufficient, especially since they find further support in the record, including Angel’s own admission to Blasius that Angel thought a fuel leak may have caused the fire (a conclusion based upon Angel’s personal involvement in working on the vehicle). Angel Dep. 55:1–5. Such evidence, in conjunction with Hooker’s written report and Blasius’ personal observations of the fire on scene, goes well beyond the district court’s characterization of Blasius’ evidence of causation as only “speculation” or mere “hypothesis.” See Newell v. Westinghouse Elec. Corp., 36 F.3d 576, 579 (7th Cir. 1994) (“A probability of negligence may be supported by expert testimony or common sense inference.”). Construing all reasonable inferences in Blasius’ favor, as we must, such evidence furnishes a sufficient factual basis from which a reasonable jury could find in favor of Blasius on the causation element of his negligence action.

 

*7 Appellee’s contrary reliance on Kincade v. MAC Corp., 773 N.E.2d 909 (Ind. Ct. App. 2002) is misplaced. In Kincade, a store clerk sued the designers, manufacturers, and installers of a trash compactor system for injuries she received from a fall on a set of access stairs. Id. at 911. At the summary judgment stage, defects in the clerk’s case were two-fold. First, the clerk admitted that she did not know what caused her feet to slip out from under her, and even worse, presented conflicting testimony regarding possible culprits. Id. at 912. Second, the clerk’s theories narrowed responsibility to the platform and access stairs leading to the trash compactor, not the compactor itself. Id. The defendants at issue, however, only had personal involvement in the latter. Id. As a result, no question of material fact existed as to whether the clerk’s injuries were proximately caused “by any action or inaction on the part of any of the three defendants.” Id. at 913.

 

Here, unlike the store clerk, Blasius provided a specific, consistent theory—supported by expert testimony and other evidence—regarding the cause of his vehicle fire: a leak in the Excursion’s fluid systems that came in contact with a heated portion of the exhaust system. Hooker Dep. 45:14–16. Furthermore, Blasius tied the source of his injury directly to AAI. The record shows that, to complete the extensive upgrades to Blasius’ vehicle, AAI disconnected and reconnected the fluid moving systems. Angel Dep. 15:11–15. Although uncertainty remains as to which fluid first ignited, such ambiguity is immaterial since AAI interacted with all of them immediately preceding the fire.

 

Appellee’s reference to our decision in Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672 (7th Cir. 2008), is equally unavailing. In Trask–Morton, the plaintiff checked into an Indianapolis Motel 6 alone. Id. at 674. Once inside, she took a dose of muscle relaxant and fell asleep. Id. The plaintiff had no memory of what occurred between the time she fell asleep and when she regained consciousness the following evening. Id. Nevertheless, two days later, the plaintiff reported that she had been sexually assaulted. Id. at 676. The plaintiff filed suit against Motel 6, alleging that the hotel failed to provide adequate security. Id. Due to the plaintiff’s lack of direct memory and the absence of other circumstantial evidence, however, the district court found there was insufficient proof for a reasonable jury to conclude that a sex crime had actually been committed. According to the court, without “facts to support [the plaintiff’s] allegation that an assault occurred in the first place,” the plaintiff “could not connect the injuries she alleged occurred as the result of the assault to any breach of duty by Motel 6.” Id. Affirming the lower court’s decision, we held that “a jury could not find that Morton was sexually assaulted … without resorting to impermissible speculation.” Id. at 679.

 

This case is not Trask–Morton. There, plaintiff was unable to prove that an injury actually occurred, and, without a predicate injury, there can be no proximate cause. Here, AAI does not contest that Blasius’ Excursion was destroyed by fire. Thus, while a genuine issue of material fact remains concerning causation, the undisputed presence of an actual injury places the current controversy beyond the import of Trask–Morton.

 

 

1. Res Ipsa Loquitur

[10] [11]Cases such as Kincade highlight that “negligence may not be inferred from the mere fact that an injury occurred.” Maroules v. Jumbo, Inc., 452 F.3d 639, 642 (7th Cir. 2006). Nevertheless, under certain circumstances, negligence “may be inferred from the circumstances surrounding the injury.” Id. (emphasis added). The doctrine of res ipsa loquitur—translated, “the thing speaks for itself”—recognizes that “certain accidents are so unusual that the party shown to be in exclusive control of the injuring object ought to be held responsible unless that party can offer a reasonable explanation.” Newell v. Westinghouse Elec. Corp., 36 F.3d 576, 579 (7th Cir. 1994).

 

*8 [12] [13] [14] [15]In other words, res ipsa loquitur “is a shortcut to a negligence claim.” Maroules, 452 F.3d at 642. It “does not require a plaintiff to submit evidence of causation” because it is “a doctrine of common sense. It allows a trier of fact to draw an inference of negligence when evidence of causation is lacking.” Id. at 644. As we said in Maroules,

[t]o establish this inference of negligence, the plaintiff must demonstrate: (1) that the injuring instrumentality was within the exclusive management and control of the defendant, and (2) that the accident is of the type that does not ordinarily happen if those who have the management and control exercise proper care … Once the plaintiff has met the burden of demonstrating the control and due care prongs of res ipsa loquitur, the doctrine operates to permit an inference of negligence based upon the circumstantial evidence.

Id. at 642. Satisfying the prima facie elements, however, does not automatically “hand victory” to the plaintiff. Id. at 643.

The inference … is just that—a plaintiff does not win [his] case merely because [he] has met the res ipsa loquitur requirements. A successful res ipsa loquitur showing simply creates an inference which the trier of fact may choose to accept or not.

Id. at 642–43 (internal citations omitted); Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815 (1913) (“In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.”).

 

[16]In the end, whether the doctrine of res ipsa loquitur applies is a mixed question of law and fact. Maroules, 452 F.3d at 643. The question of law is whether the plaintiff’s evidence includes all of the underlying elements of res ipsa loquitur; the ultimate determination for the trier of fact at trial “is whether the permissible inference is to be drawn.” Id.

 

 

1. Exclusive Management and Control

[17]Here, the district court held that res ipsa loquitur did not apply because the Excursion was in Blasius’ possession on June 29, 2012 and thus not “under the exclusive control of [AAI] at the time of the fire[.]” Op. and Order 7, ECF No. 68. Such a holding misinterprets the first prong of the res ipsa loquitur test.

 

[18]The “concept of control under Indiana’s res ipsa loquitur case law is expansive.” Maroules, 452 F.3d at 643. To prove “exclusive control,” a plaintiff “simply is required to show either that a specific instrument caused the injury and that the defendant had control over that instrument or that any reasonably probable causes for the injury were under the control of the defendant.” Id. (emphasis added).

 

[19] [20]Notably, when “used in the res ipsa loquitur context, the term ‘control’ does not require actual physical dominion over an object.” Newell, 36 F.3d at 580. Thus, “a defendant need not be in control of the causative instrumentality at the exact moment of injury, provided the defendant was the last person in control.” Maroules, 452 F.3d at 643 (emphasis added). A “product which explodes long after its shipment from the manufacturer may still be, for purposes of res ipsa loquitur, in the control of the manufacturer if the probability of other causes is small.” Newell, 36 F.3d at 580.

 

*9 In Newell, the plaintiff filed suit against Westinghouse Electric Corporation, an elevator maintenance company, after a malfunctioning elevator in the Indiana Bell Telephone Building slammed shut on her. Id. at 577. Westinghouse argued that, because several Indiana Bell employees maintained access to the elevator control room between the defendant’s maintenance calls, the plaintiff could not establish that Westinghouse “was in sole control of the elevators” at the time of her accident. Id. at 580. According to Westinghouse, such joint control raised “the possibility of negligence by another party,” and thereby barred an inference of negligence on the part of the defendant. Id.

 

Rejecting this argument, we held that Westinghouse’s negligence constituted the “most probable cause” of the plaintiff’s injuries. Id. Although Indiana Bell employees possessed access to the elevator control room, only Westinghouse conducted service and maintenance on the elevator. Id. Because the accident derived from a mechanical failure, access alone was “of little significance” absent evidence that that the employees “in fact engaged in any repair or maintenance themselves.” Id.

 

Here, as in Newell, AAI was the sole provider of service and maintenance of the Excursion within the relevant time frame. Although Blasius held possession of (and thus access to) the vehicle at the time it ignited, the record is devoid of any evidence that anyone other than AAI performed any material repair or maintenance work of their own between the time Blasius picked up the Excursion on June 28, 2012 and the moment it burst into flames. Moreover, while the parties dispute the precise cause of the ignition, there is no evidence indicating that the failure, and resulting fire, were anything but mechanical in nature.

 

[21]Regardless, “the possibility of multiple causes or multiple defendants does not automatically defeat the application of res ipsa loquitur.” Maroules, 452 F.3d at 643 (emphasis added). In Maroules, a motorist brought suit against the owner of a trucking company and its driver after a wheel broke free from a truck trailer and crashed through the front passenger side of the plaintiff’s car. Id. at 641. The defendants denied that they possessed exclusive control of the injuring instrumentality and contended that they “had no role in manufacturing the trailer or its wheel studs”; “had no control over the inspection and maintenance of the trailer or its wheel studs prior to the time that [the defendants] purchased the trailer”; and “did not maintain, service, or repair its trailers and their parts, but instead relinquishe[d] control every time it sen[t] its trailers to an outside third party maintenance company to do this work.” Id.

 

[22]We conceded that these facts presented “any number of alternative theories for the accident: the stud manufacturer could have negligently or knowingly manufactured defective studs, the maintenance business could have used a faulty power tool to tighten the bolts, or a vandal could have sabotaged the truck wheels.” Id. Nonetheless, we held that “the possibility that a third party may have negligently manufactured, installed, or maintained the studs does not preclude a finding that [the defendant] had control over the injuring instrumentality.” Id. at 644. We stated that res ipsa loquitur does not demand that the plaintiff “exclude every other possibility other than the defendant’s negligence as a cause of the injury.” Id. Instead, “a plaintiff may point to several alternative causes of injury and allow the jury to determine which, if any, instrumentality caused the injury.” Id.

 

[23]Ultimately, at trial, a plaintiff “must show only that the likelihood of other causes is so reduced ‘that the greater probability lies at the defendant’s door.’ ” Newell, 36 F.3d at 580 (quoting Fowler V. Harper, The Law of Torts § 19.7, at 46 (2d ed. 1986)). Indeed, to hold otherwise “would emasculate” the res ipsa loquitur doctrine. Id. at 581 (quotations omitted). It is only when a plaintiff cannot “identify any potential causes and show that they were in the exclusive control of the defendant” that res ipsa loquitur fails to apply. Maroules, 452 F.3d at 644 (emphasis added).

 

*10 In this case, Hooker stated in his written report that the Excursion’s fuel and brake systems were “more likely” the cause of the fire. Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 11 at 2. During his deposition, Hooker reiterated that a fluid system leak constituted the “most likely scenario” for the June 29, 2012 blaze, and agreed that “[b]ut for the removal and the manipulation and disassembly” of fluid transfer lines by AAI, the fire would not have occurred. Hooker Dep. 45:13–46:1, 53:24–54:3. Hooker deemed this the “most likely” cause of the fire and opined that, had AAI’s repair work not been done, the accident “probably would not have happened.” 55:17–56:4. For the purposes of summary judgment, the record in this case clearly satisfies the requirements outlined in Maroules and Newell.

 

Appellee’s reliance upon Slease v. Hughbanks, 684 N.E.2d 496 (Ind. Ct. App. 1997), is also misplaced. In Slease, the plaintiff, a steelworker, underwent ankle surgery after a workplace fall. Id. at 498. The next evening, the plaintiff noticed a burn on his left thigh. Id. Believing that the burn occurred during the surgery, the plaintiff filed a suit against the hospital for medical malpractice. Id. The Court of Appeals of Indiana granted summary judgment to the hospital because the plaintiff failed to “point to an instrument in the control of the defendant which was a probable cause of his burn.” Id. at 500. Although the plaintiff pointed to a “bovie pad” as a potential culprit, the court found that “there [was] nothing in the designated evidence to show that this instrument [had] the potential to cause a burn such as [the plaintiff] received.” Id.

 

The record before this Court succeeds where the record in Slease failed. Here, unlike in Slease, Blasius offered several sources of evidence indicating that a “leak in the [Excursion’s] fluid system that came in contact with a heated portion of the exhaust system” was the cause of the vehicle fire. Hooker Dep. 45:14–16. For example, Hooker’s report stated that fluids within the Excursion’s fluid system could “all be ignited via hot engine and exhaust components.” Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 11 at 1. Moreover, Hooker concluded that the fire originated in the area of the engine compartment where “the fuel lines leading from the fuel tank to the fuel injection pump” as well as the “brake system master cylinder and reservoir” were located—all of which were “manipulated and/or removed and reinstalled” during AAI’s work on the vehicle. Id. at 2. Hooker also pointed to photographs of the vehicle’s exhaust “that show[ed] a portion of the exhaust that wasn’t insulated” in that area. Hooker Dep. 54:23–24. In light of the record here, Slease is irrelevant.

 

 

2. Nature of Accident

[24]Because the district court held that Blasius failed to meet the first prong of the res ipsa loquitur inquiry, it did not address whether the fire at issue ordinarily occurs absent the exercise of proper care. Based upon the record, we find this prong satisfied as well.

 

It should go without saying that vehicle fires of the kind seen here do not occur as a matter of course.3 We are unconvinced by Appellee’s arguments to the contrary. Appellee claims that “[p]arts wear down. Road hazards loosen connections, bend parts and can create leaks and openings. The outdoor elements also affect the operation of the vehicle.” Appellee’s Br. 15. Appellee ignores that, in this case, the parts were new, and the record presents no evidence of road hazards or inclement weather.

 

*11 Rather, the record indicates that Blasius drove little more than 200 miles before his newly overhauled Excursion burst into flames. It cannot be reasonably said that such an event constitutes an ordinary occurrence of automotive self-combustion. If such were the case, the automobile would cease to serve as society’s fundamental mode of transportation. The Government has a significant interest “in protecting the health, safety, and welfare of its citizens.” Rubin v. Coors Brewing Co., 514 U.S. 476, 485, 115 S.Ct. 1585, 1591, 131 L.Ed.2d 532 (1995). As a result, the design, manufacture, production, use, and maintenance of vehicles are among America’s most heavily regulated industries. See, e.g., National Traffic and Motor Vehicle Safety Act of 1966, as amended, 49 U.S.C. § 30101, et seq.; Federal Motor Vehicle Safety Standards, 49 C.F.R. § 571, et seq. Government agencies at the federal, state, and local level sponsor and secure automobile safety. Given this pervasive level of public use and attention, we reject AAI’s suggestion that the accident in this case is a mere fact of everyday life.

 

 

Conclusion

Our ruling, of course, takes no position regarding Appellant’s ability to link his vehicle fire to AAI’s conduct by a preponderance of the evidence at trial, nor do we opine upon the strength of Appellant’s negligence claim as a whole. Such a determination rightfully belongs in the hands of the fact finder at trial. At present, it is enough to say that a genuine issue of material fact exists as to the proximate cause of the fire that consumed Blasius’ vehicle, and that, for the purpose of settling that dispute, Appellant is entitled to rely on the doctrine of res ipsa loquitur.

 

For these reasons, the judgment of the district court is REVERSED and REMANDED for further proceedings consistent with this opinion.

 

All Citations

— F.3d —-, 2016 WL 5929824

 

 

Footnotes

*

Of the Northern District of Illinois, sitting by designation.

1

These improvements included, among others, a new sound system, tires, suspension, fuel system, batteries, transmission, and turbocharger. Blasius Dep. 15:1–36:25. These initial modifications were completed by the end of May 2012. Pl.’s Resp. Def.’s Mot. Summ. J., ECF No. 53, Ex. 8.

2

Angel testified that, prior to transferring the Excursion back to Blasius, he and Fine also test drove the vehicle. Angel Dep. 47:15–25.

3

See, e.g. Alfa Romeo, Inc. v. S.S. Torinita, 499 F.Supp. 1272, 1279 (S.D.N.Y. 1980) (“A car spontaneously starting to burn may give rise to a permissible inference that it was defective, and that a defect existed when it left the hands of the defendant.”); Eversole v. Woods Acquisition, Inc., 135 S.W.3d 425, 429 (Mo. Ct. App. 2004) (“Common life experience … suggests it would be extraordinary for fuel lines to leak and cause a major fire in a three-year old vehicle, even with 52,000 miles of use, without an intervening act of manipulation.”); Lee v. Hollywood Car & Truck Rental, Inc., 485 So.2d 843, 843 (Fla. Dist. Ct. App. 1986); Hinckley v. La Mesa R.V. Ctr., Inc., 158 Cal.App.3d 630, 205 Cal.Rptr. 22, 27 (1984) (“[R]elatively new motor vehicles are usually not destroyed by fire in the absence of negligence.”); Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 55 Cal.Rptr. 94, 99 (1966) (“We think it is a matter of common knowledge that new automobiles which have been properly driven for only about 1,600 miles do not suddenly develop a fire in the engine compartment without someone’s negligence.”); Seneca Ins. Co. v. Vogt Auto Serv., 61 Ohio Misc.2d 36, 573 N.E.2d 223, 225 (Ohio Mun. Ct. 1991); cf. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 604 (Tex. 2004).