CHARLESTON – Electrician David Kyle cannot proceed with a lawsuit over a fireball that burned his face, the West Virginia Supreme Court of Appeals decided May 15.

All five Justices agreed Putnam Circuit Judge Edward Eagloski correctly threw out Kyle's claim against Dana Transport, of Nitro.

Kyle could not prove what caused the fireball, so he sued Dana Transport under a theory of "res ipsa loquitur."

The Latin phrase 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. It applies only if evidence eliminates other causes.

When Eagloski rejected the theory, he wrote that Kyle's carelessness may have contributed to the explosion.

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.

Kyle sued Dana Transport in 2001.

In 2003, Kyle's attorneys told Eagloski they could not determine a cause for the accident. They invoked res ipsa loquitur.

To use the theory, Kyle had to pass three tests.

He had to show that this kind of event would not ordinarily occur in the absence of negligence.

He had to eliminate other causes including his own conduct.

He had to show that the indicated negligence was within the scope of the defendant's duty to him.

Dana Transport moved for summary judgment in its favor, arguing that Kyle failed the first two tests.

Eagloski did not rule until 2006. Then he granted summary judgment.

He wrote that Kyle offered no evidence that the missing cover or the loose screw contributed to the accident.

"There is a substantial possibility that the plaintiff's carelessness in performing work on the electrical panel may have been, at the very least, a contributing factor to the accident," Eagloski wrote. "The records show that it is not clear how the electrical panel was maintained nor whom had previously performed work on the panel, suggesting that the conduct of unknown third persons or the plaintiff himself could have caused the accident."

Kyle appealed. Rudolph DiTrapano, Lonnie Simmons and Heather Langeland of Charleston represented him.

Harvey Peyton and Thomas Peyton of Nitro represented Dana Transport.

The Supreme Court of Appeals heard oral arguments April 3.

Justice Joseph Albright wrote the decision.

He wrote that the only evidence for the cause of the fire was Kyle's contact with the breaker box.

"Critically, without the theory of an expert or even a plausible explanation by the plaintiff as an experienced electrician of what may have happened, the jury would have had to resort to conjecture to identify the cause of this accident," Albright wrote.

He wrote that Kyle failed to submit circumstantial evidence of negligent conduct and failed to rule out other causes including his own conduct.

Justices Brent Benjamin and Spike Maynard concurred.

Chief Justice Robin Davis and Justice Larry Starcher concurred and reserved the right to file concurring opinions.

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