Wong v. Mislang

2007 BCSC 1835 Wong v. Mislang

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wong v. Mislang, 2007 BCSC 1835 Date: 20071218 Docket: S053422 Registry: Vancouver Between: William Tat Fong Wong and Shui Fan Wong Plaintiffs And Bellaflor Llanillo Mislang and Alejandro Apostol Mislang Defendants Before: The Honourable Madam Justice Russell Reasons for Judgment Counsel for Plaintiffs J.J. Kim Counsel for Defendants B. De Vita Date and Place of Trial: November 26-29, 2007 Vancouver, B.C. INTRODUCTION: [1] On the morning of June 27, 2003, Mr. Alejandro Mislang responded to his wife's complaint, of a smell of burning plastic, by going out the front door of their home and proceeding down the passageway beside their house to the carport behind their house at 2861 East 25th Avenue, Vancouver. There he saw flames leaping from the west wall of the carport. [2] The fire was reported to the Vancouver Fire Department by neighbours since the fire had knocked out the Mislangs' telephone. Ultimately, the fire spread through the carport and caused substantial damage to their house and to the home belonging to their neighbours, the Wongs, on the west. [3] The issue to be determined is the liability of the Mislangs for the cause of the fire. The Wongs allege that the fire was caused by the negligence of the Mislangs through the careless smoking of a member or members of their household by leaving a lit cigarette on the sofa in the carport. Quantum of damages is agreed at $311,535.75.

LAY EVIDENCE OF THE PLAINTIFFS Lieutenant James Inksater [4] Lieutenant Inksater has been a firefighter for 23 years and spent 4 years as an officer with the Vancouver Fire Department. He was called to give factual evidence of his investigational observations made shortly after the fire. In the course of his investigation as to the cause and origin of the fire, he prepared a routine report entitled "Incident Detail". This report is Exhibit 2. [5] Exhibit 2 contains a "Narrative" on page 2. It reads as follows: Fire in a single family detached home with a basement and one level. The cause of the fire is undetermined at this time but originated at the rear of the house in the open carport or in the adjoining locked garage. The carport contained a washer and dryer as well as a couch and a couple of chairs where the owners [sic] family would relax. Fire damage strongly suggests that the area where the couch was positioned in the carport could be the area of origin. There is enough damage to the garage and contents that it could also be a possible area of origin. The flames then spread out of the carport between the house and 2857 East 25th to the immediate west. The fire gained access to the main floor of the house via the main floor windows above and into the roof by way of the soffit. Extensive fire, smoke, heat and water damage to the main floor, roof and contents. Water damage

to the basement. [6] Lieutenant Inksater's evidence was consistent with the Narrative. He agreed that the sofa in the carport was a possible source, but he could not rule out the garage or an electrical fire in the carport, as possible points of origin. He agreed the fire in the sofa could have been caused by a smouldering cigarette, but was unable to say that this was more than one of many possibilities, although he "had a feeling". He also stated that, due to the substantial degree of destruction caused by this fire, his investigation was more difficult. His report indicates that the igniting object is unknown as is the material first ignited. [7] Lieutenant Inksater could not recall the source of the information about the use of the carport by the Mislang family, noted in the Narrative. He did not have much specific recollection of the fire and relied on the information in his report for his evidence. Mrs. Wong [8] Mr. and Mrs. Wong and their daughter, Jenny, were all residing in their home at 2857 East 25th on June 26-27, 2003. Mrs. Wong testified that she awoke at 2:00 a.m. on June 27, 2003 due to worries about her daughter embarking on a trip to Japan. She was unable to go to sleep again and at 3:00 a.m. she got up and commenced to quilt until the early morning hours when her daughter and husband got up. She smelled smoke with the odour of burning garbage at 3:00 a.m.,

checked around her house and was unable to see anything. She was not particularly concerned since, on other occasions, she had noticed similar smells resulting from the Burns Bog fire and from Annacis Island. [9] The weather was warm, so there were windows open on the second floor of the Wongs' self-described "Vancouver Special". This term describes a house with the entrance on the ground floor and the living area upstairs. [10] Mrs. Wong's daughter, Jenny, got up at around 6:00 a.m. In Mrs. Wong's recollection, she complained of smoke to her mother and advised her to turn on the fan to suck out the smoke. Jenny's bedroom window faces the Mislangs' house. Mrs. Wong declined to follow her advice. Jenny left for her job and was out the front door of the house between 7:00 a.m. and 7:10 a.m. [11] Mr. Wong got up at 7:00 a.m. and left the house at 7:30 a.m. to walk to work at Telus on Kingsway and Boundary. Mrs. Wong said goodbye to him at the front door and went to cut flowers in her front garden, which faces south. The Mislang house is east of the Wong house. The flowers were between her house and the Mislangs' house, on one side of her yard, and between her and her other neighbour on the west side of her house. [12] She returned to her house, still smelling smoke, but could see nothing. She made two flower arrangements and began to do her exercises in the living room at 8:00

a.m. The living room is at the front of the house. She had wound down her exercises when, at 8:45 a.m., the smoke alarm went off in the kitchen which is on the west side of their house, the opposite side to the Mislangs' house. She went down to the kitchen to check the stove and noticed smoke there. As she passed Jenny's room and looked out, she saw the Mislang house on fire. [13] A neighbour knocked on her front door, which is on the main floor, to tell her the Mislangs' house was burning and to get out of her house. She went upstairs to the living level, called 911, and gathered some valuables in a pillow case. She left the house just as the firefighters arrived to get her out. [14] Mrs. Wong was aware there were two smokers in the Mislang household. She had seen Alejandro Mislang and his son, Brian, smoking on the front steps of the house several times since the Mislangs moved into the house next door in 2001. In answer to questions about whether she had observed the Mislangs smoking in the carport, she stated she did not go on to the back deck often and did not pay attention to their patterns of smoking. I infer from her answers that she did not see the Mislang father and son smoking in the carport. Mr. Wong [15] Mr. Wong smelled smoke when he got up at 7:00 a.m. but, like his wife, attributed it to smoke from Burns Bog or similar to smoke he smelled as a result of a tire

fire on Annacis Island. He left for work at 7:30 a.m. still smelling smoke and without feeling unduly concerned. [16] He did not wake up during the night. [17] He learned of the fire at 9:00 a.m. when he received a call from Mrs. Wong. [18] He was aware the Mislang father and son smoked, but could not see them smoking in the carport. He had previously heard them talking in the carport, but could not say how often. Mr. Wong only ever saw the Mislangs smoking at the front of their house. In cross-examination, he agreed he had no evidence to support an allegation that the Mislangs' smoking caused the fire. Jenny Wong [19] Ms. Wong did not wake up during the early hours of the morning of June 27, 2003. She recalls closing her window against the smoke when she got up at 6:00 a.m. The smell, she recalls, was like burning rubber. Her bedroom window is over the walkway between the Mislang and Wong houses. [20] Ms. Wong left for work by way of the front door at 7:00 a.m., to be at work at UBC at 8:00 a.m., and was frank that she was in a rush. She noted that the smell of smoke persisted outside and that it was stronger than in the house, but there was no smoke in the air. She was aware the Mislangs smoked because she could occasionally smell cigarette smoke in her room. However, she does not recall smelling cigarette smoke on the night of the fire.

LAY EVIDENCE OF THE DEFENDANTS [21] Mr. Mislang testified that, on the date of the fire, there were six adults residing in his household: Mr. and Mrs. Mislang, their two sons, Mark and Brian, a Japanese student and Mrs. Mislang's sister. Only he and Brian smoked and they did not smoke in the house. Their usual smoking spot was at the top of the front steps. [22] The Mislang house faces south and has an alley on its north side, which is the back of the house. There is a locked garage on the east side of the back of the house and an open carport on the west side, next to the Wong house, with a small unlocked laundry room containing a washer and dryer, close to the house, on the southwest end of the carport. Inside the carport are an old sofa, coffee table, chair and dartboard. The carport is open to the lane behind the house by way of a driveway. The back yard area is enclosed by a fence with an unlocked gate. Mr. Mislang parks his car in the driveway behind the closed garage door. [23] The laundry room is drywalled. The garage ceiling is partly drywalled up to the area where the garage door tracks end. The carport is unfinished on the inside. While Mr. Mislang indicated the ceiling of the carport was open between the joists, both the photographs taken by the plaintiffs' expert, Mr. Johnson, and those taken by the Vancouver Fire Department, show an area of the ceiling which is

much less burned than the rest of the ceiling in the carport. This indicates to me there was some protection between the joists, most likely some insulation, and that Mr. Mislang's recollection on this point is faulty. [24] The couch in the carport was given to the Mislangs by a client of Mrs. Mislang. It was old and dirty and, hence, it was placed in the carport. Mr. Mislang said he did not smoke in the carport unless he was outside cleaning up the backyard. Brian testified that he rarely used the carport. There was an ashtray in the carport and Brian said in a deposition that, if he smoked in the carport, he would use the ashtray. Brian said he had not been in the carport for about 2 weeks before the fire and Mr. Mislang said it had been a few weeks since he had been in the carport. [25] The garage was used as a storage room and was kept locked due to an earlier theft. It contained boxes of insulation, some plywood, a barbecue and some garden tools. There were no appliances in the carport or the garage. There was one light switch in the carport. [26] On the evening of the fire, Mr. Mislang recalls that he went to bed about 11:00 p.m. to 11:30 p.m. after having his last cigarette of the day on the front steps at about 10:30 p.m. His wife does not permit anyone to smoke inside the house. He slept through until 8:30 a.m. It was while in the process of investigating his wife's

complaint of a smell of plastic burning that he went outside and saw the fire burning out of the laundry room. He described the flames as taller than he was. [27] Mr. Mislang is clear that he did not smoke in the carport the evening before the fire. As far as he is able to say, no one else in the household smoked in the carport that evening. [28] The only area of Mr. Mislang's evidence which was mildly problematic was his insistence that the ceiling in the carport was completely open between the joists. If the ceiling near the sofa was open at the time of the fire, it would have suffered an amount of charring similar to what is observed from the photographs in Exhibit 1 in the remainder of the carport. It is clear the ceiling above the sofa is much less charred than the rest of the ceiling. As well, in photographs taken just after the fire by Vancouver Fire Department, Lieutenant Inksater, there is insulation on the carport floor which looks to be damaged by smoke and fire. This insulation would most likely have come from the ceiling overhead and the Defendants' own expert opined, in a question from the Court, that the reduction in charring was most likely related to the presence of thermal insulation between the joists. [29] The presence of insulation would probably have delayed the advance of the fire reaching the house and would also extend the time line for the appearance

of the fire somewhat. [30] Both Mr. and Mrs. Mislang were simply incorrect in their recollection on this point. [31] I note also that Mrs. Mislang said the floor of the master bedroom was not hot when she got up between 7:00 a.m. and 7:30 a.m. on June 27, 2003. Given the large size and rapid progress of the fire by the time it was discovered by Mr. Mislang at 8:30 a.m., it seems likely to me that the floor would have felt warm had it not been insulated. This is also consistent with the presence of thermal insulation somewhat retarding the progress of the fire up into the ceiling of the carport which forms the floor of their bedroom.

THE EXPERT EVIDENCE Expert called by the plaintiffs [32] Mr. Murray Johnson was called by the plaintiffs. Mr. Johnson is a registered Professional Engineer in British Columbia and Washington State and holds a Master of Science degree in Nuclear Physics. [33] Mr. Johnson has extensive experience in fire suppression systems' design and has more recently turned to the investigation of fires. His experience in the investigation of residential fires is not extensive, as he has done approximately 20 investigations in total with 3-4 investigations relating to smouldering fires. He has not qualified as an expert prior to this case. He has not undertaken independent studies on the combustibility of materials and smoulder-rate testing, but has done extensive reading. His technical skills relating to fire cause and origin investigation were gained in a 3-day course he took in 1996. [34] I accepted Mr. Johnson as an expert in the field of fire cause and origin since I accept that the field of fire suppression necessarily involves some cross-over of knowledge into the area of fire cause and origin. However, the concerns I have with the weight to be accorded to his report relates more to the way it was prepared, its lack of attribution of sources and the errors it contains. [35] I will deal first with Mr. Johnson's conclusions, which are found on page 6 of his report. It is his view that the

most probable cause of the fire was a smouldering cigarette in the sofa in the carport. He bases these conclusions on evidence of deep charring in remnants of the chesterfield stuffing material, consistent with slow, low temperature, flameless smouldering combustion, the presence of cigarette butt litter on the carport floor, the lack of apparent alternate sources of ignition, including no observed evidence of accelerant use, and slow fire development prior to the flames being observed. [36] Mr. Johnson stated that the seat of a fire shows the greatest charring because the fire has been burning for a longer period of time at the point of origin. The exception to this general proposition is that an area which contains a particularly flammable fuel supply could show greater charring than the point of origin. As well, he notes that if a protective "membrane", such as that created by drywall, covers a ceiling, it will retard fire spread somewhat. It is his view that the ceiling area above the sofa was drywalled. The Mislangs deny the presence of drywall in that area. I accept there was no drywall since there were no burned drywall shards on the floor of the carport post-fire, but there was insulation between these joists toward the south end of the carport which would explain the lack of charring in this area of the carport ceiling. I make this finding as a result of the

photographs taken by Lieutenant Inksater, showing drywall on the floor of the carport, which showed smoke and fire damage unlike the rolls of new insulation stored in the garage, which showed some damage on the outer edges only of the rolls. [37] Mr. Johnson found the greatest charring in the south end of the carport, including the area above the washer and dryer, which themselves were mostly smoke-damaged. The joists above the washer and dryer were extensively damaged and the wall separating the laundry room from the carport was substantially destroyed. [38] Mr. Johnson noted that the wall directly behind the sofa (the west wall) was almost completely destroyed and was the only wall to suffer complete stud loss, leading him to conclude that the sofa was the point of origin. However, since he did not attend the scene and he relied on photographs taken by two of his fellow employees who went to the fire scene some 10 days after the fire, when the fire scene as he termed it, had been "substantially disturbed", he was unable to determine that the south wall separating the laundry room from the carport was also completely destroyed and its studs reduced to almost nothing. This was an important omission since it could point to a different point of origin of the fire, if one accepts the proposition that the seat of the fire is located at the point of greatest charring. Mr. Johnson

did assert, as a possibility, that the interior wall could have been constructed without studs, but there is no evidence on this point. In addition, the parties are agreed that the wall between the laundry room and the carport was drywalled, which would give some minimal fire protection, as I note below. However, this wall was burned to almost nothing. [39] Mr. Johnson also agreed that if the fire started in the garage and moved east to west along the joists, it would move quickly to the carport and cause the substantial damage which occurred in the south end of the carport ceiling, since the ceiling in the garage was partly protected by drywall which would give 20 minutes' resistance in a standard fire situation. [40] The main weakness in Mr. Johnson's report stems from the fact that the pictures of the site were taken two weeks after the fire. He admitted the site had been disturbed. As a result, the finding about the "complete stud loss" he found in the west wall was incorrect. In addition, Mr. Johnson did not attend at the scene himself, but relied on photographs taken by other employees. While I have no doubt the examination of the site was undertaken conscientiously by these other two employees, Mr. Johnson was candid in admitting that his ability to prepare the report would have been improved had he been able himself to inspect the site of the fire. Expert called by the

defendants [41] The defendants called Dr. Vytenis Brabauskas. Dr. Brabauskas has a Bachelor's degree in physics, a Master's degree in Structural Engineering and a Ph.D. in fire protection engineering. [42] Dr. Babrauskas has extensive experience in fire safety science and the measurement of heat release from fires. In 1975, he developed and released a model which computed the behaviour of room fires. In 2001, Dr. Brabauskas published a textbook on fire behaviour and upholstery. In 2003, he published a handbook on the ignition of fires. Dr. Brabauskas has published over 250 papers and reports in this field, including extensive studies relating to smouldering fires. [43] Dr. Brabauskas' report concludes that it is very unlikely that a member of the Mislang family ignited the sofa through careless smoking habits. Dr. Brabauskas bases this conclusion on the length of time that elapsed between the time the members of the family retired and when the fire broke out. [44] Dr. Brabauskas has published a research paper examining how long it takes a smouldering cigarette to cause a fire when it is dropped onto upholstered furniture. The shortest time on record is 22 minutes, the longest is 5.1 hours, and the average is 1.47 hours. Dr. Brabauskas testified that if Mrs. Wong first witnessed the fire at 8:45 a.m., it is very likely that a cigarette would have had to have been placed onto the

sofa at 6:30 a.m. or later. The evidence establishes that members of the Mislang family were sleeping at 6:30 a.m. A finding that the fire was caused by negligent acts of the Mislang family is, thus, inconsistent with Dr. Brabauskas' research. [45] According to Dr. Brabauskas, not a single case has been found where a fire took longer than 5.1 hours to erupt after a cigarette was dropped onto upholstery. In this case, given that members of the Mislang family went to bed between 10:30 p.m. and 11:30 p.m., a cigarette would have had to smoulder for 9.5 hours before flames would begin to erupt. Dr. Brabauskas states that while this is not physically impossible, it is exceedingly rare. [46] Dr. Brabauskas also notes that there is no evidence in Mr. Johnson's report that he was able to exclude other sources for the fire, including cords, plugs or outlets, and other self-heating materials.

ANALYSIS [47] In Franks v. Sanderson (1988), 25 B.C.L.R. (2d) 248, 44 C.C.L.T. 208 (C.A.), the B.C. Court of Appeal considered whether a homeowner was liable for damage caused to neighbours after a fire escaped from his premises. The court held that a plaintiff must show negligence before a defendant will be held liable under this scenario. Having regard to all of the circumstances, there must be a reasonable basis for inferring that the fire was caused by the negligence of the defendant. See also Steer v. Hore (7 March 1990), Vancouver C894626 (B.C.S.C.). [48] In Franks, supra, careless smoking was suspected, but the exact cause of the fire was unknown. The plaintiff's hypothesis was that a cigarette was left smouldering at 6:20 PM, and that this led to the outbreak of flames at 8:45 PM. Evidence led at trial indicated that it would be unlikely for a cigarette to smoulder for two and-a-half hours. The court held that the time element was an "obvious weakness" in the plaintiff's case. Moreover, the court found that there was no clear evidence that anyone was in the building between 6:00 - 6:20 PM and there was no basis for inferring that a cigarette was carelessly dropped at that time. [49] Although each case must be decided on its own merits, Franks, supra, bears striking similarities to this case and is helpful in that regard. [50] In the case at bar, I am not persuaded that

the fire was caused by the negligent disposal of cigarettes in the carport. There is simply insufficient evidence to establish that the fire was caused by cigarettes smouldering on the sofa. According to Mr. Inksater, the fact that Mrs. Wong smelled smoke for an extended period of time is consistent with a fire in an enclosed area, such as a garage, an electrical fire, or a smouldering fire. Mr. Inksater agreed that each of these scenarios could have caused the fire in this case. Mr. Inksater also could not definitively state that the fire originated at the sofa in the carport. Similarly, Dr. Brabauskas, a credible and knowledgeable witness, finds it possible that the fire originated at another location. According to Dr. Brabauskas, the methodology adopted by those who attended at the scene of the fire was not thorough or precise enough to establish that the fire originated at the sofa. Although Mr. Johnson did believe that the fire originated in the vicinity of the sofa, the methods utilized by Mr. Johnson are questionable and his report contains errors. As a result, far less weight can be given to his opinion. [51] Even if it were to be shown that the fire had originated at the sofa due to a smouldering cigarette, there is no evidence establishing that the cigarette was negligently disposed of by the defendants. I accept the defendants' evidence that neither Alex Mislang nor

Brian Mislang smoked in the carport the night before the fire. I also accept that members of the Mislang family retired between 10:30 p.m. and 11:30 p.m. that night. Given this timeframe, it is highly unlikely that a blameworthy cigarette could have been disposed of by the Mislangs. Dr. Brabauskas testified that it would be extremely improbable for a cigarette to smoulder for nine and-a-half hours before igniting and causing a fire. Moreover, the carport was an unsecured area and a cigarette could have easily been lit by a stranger.

CONCLUSION [52] The plaintiffs' case is based upon mere suspicion. Given the paucity of evidence in this case, there is no reasonable basis for inferring that the fire was caused through the negligence of the defendants. [53] The plaintiffs' case is dismissed with costs to the defendants. ______ Madam Justice L.D. Russell