B-146190, SEP. 7, 1961

B-146190, SEP. 7, 1961

TO MILLERS NATIONAL INSURANCE COMPANY:

REFERENCE IS MADE TO LETTER OF JUNE 12, 1961, REQUESTING REVIEW OF OUR SETTLEMENT DATED MARCH 10, 1961, WHICH DISALLOWED YOUR CLAIM FOR $704.12 FIRE DAMAGE TO A HOUSE AT 314 EAST UNION STREET, LIBERTY, INDIANA, WHICH WAS RENTED TO THE DEPARTMENT OF THE ARMY BY JAMES S. AND BERNICE C. SHEPARD UNDER LEASE NO. DA-46-022-ENG-2665, DATED DECEMBER 3, 1959.

THE ABOVE RESIDENCE WAS OCCUPIED BY SERGEANT ROBERT E. TRUEBLOOD AND HIS FAMILY AND ON MARCH 20, 1960, WAS DAMAGED BY A FIRE WHICH IS REPORTED TO HAVE BEEN STARTED BY SERGEANT TRUEBLOOD'S FIVE-YEAR-OLD CHILD WHO WAS PLAYING WITH A CIGARETTE LIGHTER. YOUR CLAIM REPRESENTS THE AMOUNT PAID BY YOU AS INSURER TO BERNICE C. SHEPARD, OWNER AND JOINT LESSOR OF THE PROPERTY, AND YOU CONTEND THAT PERMITTING THE CHILD TO HAVE ACCESS TO THE LIGHTER WAS ACTIONABLE NEGLIGENCE.

PARAGRAPH 9 OF THE LEASE PROVIDES THAT THE LESSOR SHALL MAINTAIN THE PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION EXCEPT IN CASE OF DAMAGE ARISING FROM THE ACT OR NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES. PARAGRAPH 7 PROVIDES THAT THE GOVERNMENT SHALL, IF REQUIRED BY THE LESSOR, RETURN THE PREMISES IN AS GOOD CONDITION AS THAT EXISTING AT THE TIME OF ENTERING UPON THE SAME UNDER THE LEASE, REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGES BY THE ELEMENTS OR BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAS NO CONTROL, EXCEPTED.

THE ABOVE PROVISIONS ARE MERELY AN INCORPORATION IN THE LEASE OF THE BASIC LEGAL PRINCIPLE THAT THERE IS AN OBLIGATION ON A TENANT TO TREAT PREMISES IN SUCH MANNER THAT NO SUBSTANTIAL INJURY SHALL BE DONE TO THEM THROUGH HIS NEGLIGENCE OR WILLFUL MISCONDUCT. 32 AM.JUR. 779. IN ADDITION TO ESTABLISHING NEGLIGENCE, IT MUST BE SHOWN THAT THE DAMAGE WAS PROXIMATELY CAUSED BY SAID NEGLIGENCE (32 AM.JUR. 783), PROXIMATE CAUSE BEING THAT CAUSE, WHICH, IN NATURAL AND CONTINUOUS SEQUENCE, UNBROKEN BY ANY EFFICIENT INTERVENING CAUSE, PRODUCES THE INJURY, AND THE INJURY MUST BE ONE WHICH MIGHT REASONABLY BE EXPECTED TO RESULT FROM THE ACT OR OMISSION COMPLAINED OF. 38 AM.JUR. 50.

NEGLIGENCE IS A LACK OF THAT DEGREE OF CARE WHICH A REASONABLY PRUDENT PERSON WOULD HAVE EXERCISED UNDER SIMILAR CIRCUMSTANCES. SMOKING IS AN ALMOST UNIVERSAL HABIT AND BOTH SERGEANT AND MRS. TRUEBLOOD SMOKED. HAVING A TABLE LIGHTER ON THE TABLE WAS THEREFORE TO BE EXPECTED. ALSO, THE FILE CONTAINS A SWORN STATEMENT BY SERGEANT TRUEBLOOD THAT THE CHILDREN HAD BEEN THOROUGHLY INSTRUCTED AND CAUTIONED ABOUT PLAYING WITH FIRE, MATCHES AND LIGHTERS; THAT TO HIS KNOWLEDGE THEY HAD NEVER HAD ANY CONTACT WITH THE LIGHTER OTHER THAN TO CARRY IT TO ONE OF THEIR PARENTS; AND THAT THERE WAS NO PLACE IN THE LIVING ROOM THAT THE LIGHTER COULD HAVE BEEN PLACED WITHOUT BEING IN SIGHT AND REACH OF THE CHILDREN.

THE ACTION OF THE CHILD IN PLAYING WITH THE LIGHTER AND ACTUALLY STARTING THE FIRE WAS DEFINITELY AN EFFICIENT INTERVENING CAUSE AND THE FIRE CLEARLY WAS NOT A CONSEQUENCE WHICH OUGHT REASONABLY TO HAVE BEEN FORESEEN AS LIKELY TO FLOW FROM THE PRESENCE OF THE LIGHTER ON THE TABLE. IT COULD AS WELL BE ARGUED THAT LEAVING ANY OBJECT WITH WHICH DAMAGE COULD BE INFLICTED IN REACH OF A SMALL CHILD WAS THE PROXIMATE CAUSE OF THE DAMAGE DONE WITH THE OBJECT BY THE CHILD. THIS POSITION IS HARDLY TENABLE. ESTABLISHING LIABILITY REQUIRES THAT THE RESULT NOT BE MERELY POSSIBLE OF OCCURRENCE, BUT PROBABLE.

FOR THE REASONS STATED WE MUST CONCLUDE THAT THE DAMAGE WAS PERMISSIVE WASTE AND THAT THERE HAS BEEN ESTABLISHED NO ACTIONABLE NEGLIGENCE ON THE PART OF THE TRUEBLOODS. THE DISALLOWANCE OF YOUR CLAIM IS THEREFORE SUSTAINED.