Johnson v. Hovland, 2011 ND 64

Silliman sued All American Biodiesel for smoke damage to his house from a fire at All American's plant; the case was tried in district court after removal from small claims court.
The district court held that res ipsa loquitur applied and awarded damages of $1,905.50 and attorney’s fees of $3,438.60 to Silliman; Dirkzwager was dismissed with prejudice.
The deputy fire marshal could not determine the exact origin or cause of the fire, only locating the area of origin in the southeast portion of a building and noting two machines there did not start the blaze.
Trial testimony offered little specificity on the fire’s origin or cause, and no credible evidence established a specific instrumentality under All American’s exclusive control.
On appeal, All American challenged the res ipsa ruling and the exclusive-control requirement; the court agreed to reverse the judgment.
The court also concluded that no credible evidence supported a heightened standard of care for biodiesel production.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether res ipsa loquitur applies	Silliman argues the fire’s origin and instrumentality were under All American’s exclusive control and the absence of negligence is shown.	All American contends the fire’s origin is undetermined and exclusive control over the instrumentality is not established.	Res ipsa loquitur not met; cannot prove exclusive control or absence of non-negligent origin.
Whether All American had exclusive control over the instrumentality	Silliman asserts All American controlled the instrumentality causing the fire.	All American did not present evidence showing exclusive control of the instrumentality.	Exclusive control not proven; control of the building alone is insufficient.
Whether the fire’s origin being undetermined defeats res ipsa loquitur	Silliman relies on the general uncertainty to imply negligence through res ipsa.	Lack of precise origin prevents inference of negligence via res ipsa.	Res ipsa loquitur requires more precise origin or instrumentality; not satisfied here.
Whether biodiesel production constitutes an abnormally dangerous activity warranting higher care	Silliman claims biodiesel production is abnormally dangerous, meriting heightened care.	No credible evidence of abnormally dangerous conditions; no heightened duty established.	No heightened standard of care proven; no breach shown.

Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155 (N.D. 1985) (three-part res ipsa test; exclusive control required)
Foerster v. Fischbach-Moore, Inc., 178 N.W.2d 258 (N.D. 1970) (fires can start without negligence; clarified control standard)
Investors Real Estate Trust Properties, Inc. v. Terra Pacific Midwest, Inc., 2004 ND 167 (N.D. 2004) (res ipsa requires evidentiary support; speculative causation improper)
Brauer v. James J. Igoe & Sons Constr., Inc., 186 N.W.2d 459 (N.D. 1971) (abnormally dangerous activity standards discussed)