dissenting.
I dissent. There is no explanation for the fire that does not involve the defendant’s negligence.
Factual Sufficiency
In its factual sufficiency analysis, the majority seems to look at each piece of evidence in detail but, wearing blinders, ignores other evidence that is part of the picture. For example, the majority finds “some testimony tended to undercut the allegation that [defendant] acted negligently.” The majority then discusses the testimony of Judd Clayton, one of plaintiffs’ experts, that “perhaps the number of lights and the length of time they were left on” did not cause or contribute to the fire. What the majority ignores here is that no one can say for certain what caused the fire, only that the fire began either in the Christmas tree room or the adjacent narrow room. As happens in fires, the fire destroyed most of the evidence.
What is astounding in the majority’s opinion is its discussion under the heading of “Conflicting theories of causation.” The majority seems to be under the impression that more than one theory of causation in this kind of case weakens the plaintiffs’ case.
I believe the finding of no negligence is against the great weight and preponderance of the evidence. The plaintiffs introduced extensive evidence that the defendant’s negligence proximately caused the fire. For example, the evidence shows the defendant left the Christmas tree lights on while the store was unattended even though (1) there were loose connections with the Silvestri ornaments, (2) the Sil-vestri ornaments were not approved for use on the light strings, (3) there were more lights on the tree than the manufacturer or the defendant recommended, (4) one of the defendant’s employees was burned by heat generated by one of the fight strings, and (5) there were known combustibles on and under the tree. The plaintiffs presented two highly qualified experts who testified that the most likely cause of the fire was an excessive buildup of heat resulting from the loose connections with the Silvestri ornaments. In contrast, the defendant presented no expert testimony explaining the cause of the fire.
I would reverse and remand for a new trial.