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Randy Lee Silliman v. Lee Dirkzwager

March 22, 2011

RANDY LEE SILLIMAN, PLAINTIFF AND APPELLEE
v.
LEE DIRKZWAGER, AS AN INDIVIDUAL, AND ALL AMERICAN BIODIESEL, INC., A NORTH DAKOTA CORPORATION,
DEFENDANTS ALL AMERICAN BIODIESEL, INC., A NORTH DAKOTA CORPORATION, APPELLANT



Appeal from the District Court of Benson County, Northeast Judicial District, the Honorable Donovan John Foughty, Judge. REVERSED.

The opinion of the court was delivered by: Sandstrom, Justice.

N.D. Supreme Court

Silliman v. All American Biodiesel, Inc.,

2011 ND 54

This opinion is subject to petition for rehearing. [Go to Documents]

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Opinion of the Court by Sandstrom, Justice.

Silliman v. All American Biodiesel, Inc.

No.20100257

[¶1] All American Biodiesel appeals from the district court's judgment*fn1 awarding Randy Silliman damages and attorney's fees following a fire that occurred on All American's property. The district court ruled that All American was liable for damages that occurred to Silliman's house under the theory of res ipsa loquitur. We reverse, concluding the facts in the record are insufficient to satisfy the elements of res ipsa loquitur.

I [¶2] Randy Silliman brought suit against All American in small claims court, alleging that a fire on All American's property caused smoke damage to his house. All American removed the matter to the district court. A bench trial was held during which the following facts were introduced through testimony.

[¶3] Silliman testified that his house is approximately 200 feet from a biodiesel plant owned by All American. The plant was established and run by Lee Dirkzwager, who was initially a defendant in this matter. A fire occurred in one of the buildings at the plant early one morning in August 2008. Silliman testified he was awakened by a neighbor who called to tell him that a building at the plant was on fire. The windows were closed on his house, but the central air conditioning unit was on, which drew smoke into the house. Silliman stated he took precautions, such as bringing in his dog and alerting other neighbors, but did not leave the residence with his family, because an officer on the scene told him the fire was "just a little vegetable oil."

[¶4] According to Silliman, there was a noticeable smell of "burnt plastic" in his house following the fire. He testified that an air quality inspector with the State Health Department found hazardous chemicals had burned in the fire, leading Silliman to get the house professionally cleaned. Before this cleaning occurred, Silliman and his wife washed their bedding, moved all of their furniture, cleaned their drapes, and disposed of their blinds. The cleaning service then employed odor-removing machines, extensive use of disinfectants, and other cleaning techniques within the house.

[ΒΆ5] A deputy state fire marshal conducted an investigation of the fire. In his report, the deputy fire marshal was able to pinpoint the general area of the building where the fire started, but he noted that two machines in that area did not show signs of having started the blaze. His report concluded that ...


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