WEST VIRGINIA RECORD

CHARLESTON – Electrician David Kyle does not know why a fireball burned his face at Dana Transport in Nitro, but he wants to proceed with a lawsuit against the company anyway.

Kyle wants the West Virginia Supreme Court of Appeals to grant him a jury trial on a theory of "res ipsa loquitur," a Latin phrase that means, "The thing speaks for itself."

The theory allows jurors to infer negligence if an event would not have occurred in the absence of negligence. The theory applies only if evidence eliminates other causes.

Putnam Circuit Judge Ed Eagloski rejected the theory last year. He granted summary judgment to Dana Transport. He wrote that Kyle's carelessness may have contributed to the explosion.

Heather Langeland, of the Charleston firm of DiTrapano, Barrett and DiPiero, filed an appeal brief in October.

The Supreme Court of Appeals has set oral argument Tuesday, April 3.

Kyle worked as master electrician with Al Marino Inc. On Feb. 3, 2000, he traveled to Dana Transport to fix a breaker.

Kyle had 40 years of experience in electricity, but he had never taken a call to Dana Transport.

When he got to the breaker box, he found that someone had removed the cover and tampered with the breaker.

He found a loose screw on a mounting finger. With one hand he pointed a screwdriver. His free hand held needle nose pliers.

When the screwdriver touched the screw, fire shot from the box.

It burned his face to the corneas of his eyes. It charred his hands.

When Kyle sued Dana Transport, he did not plan to let the thing speak for itself. He planned to call an expert witness.

Dana Transport challenged the expert. Kyle withdrew him in 2003 and asked Eagloski to proceed on a theory of res ipsa loquitur.

Eagloski rejected the theory last year, ruling that evidence did not eliminate causes other than Dana Transport's negligence.

Langeland argued in Kyle's appeal brief that Eagloski intruded on the jury's domain.

"Appellant did not ask does res ipsa loquitur apply, but rather can it apply," she wrote. "The fact that appellant cannot point to a specific instance of negligence on the part of the appellees is the purpose of having the doctrine. Appellant is not required to prove what specific negligent act or ommission caused his injuries."

She quoted a 1997 decision, Foster v. City of Keyser, in which Justices held that, "... shocks, electrocutions and other events of that nature simply do not occur absent some negligence."

For Dana Transport, Nitro attorney Thomas H. Peyton argued in a November brief that Kyle acknowledged the dangerous nature of the work.

"The only reasonable explanation as to why the appellant was electrocuted was his own negligent conduct working on a charged breaker box with a screwdriver and needle nose pliers," he wrote.