(dissenting).
I dissent.
The trial court found that the fire was not caused by an Act of God and (a) no evidence of a gas surge in the lines to the water heater, (b) no evidence that the water heater was defective, and (c) no evidence of defective construction in the water heater closet. In addition to these unchallenged findings, there is no evidence as to what caused the fire.
The trial court found that the fire began in the water heater closet, that this closet was under defendant’s exclusive control, and that in the ordinary course of events the fire would not have happened had defendant exercised reasonable care over the closet. This was the basis for applying res ipsa loquitur; this was an insufficient basis for applying the doctrine.
To have a fire of any kind there must be a source of ignition and combustibles; to say that, because there had to be a “fire cause”, the fire was of a kind that ordinarily did not occur in the absence of negligence, adds nothing in resolving the question of whether the doctrine of res ipsa loquitur was applicable.
The injury, in this case, was the fire. Clark v. Cassetty, 71 N.M. 89, 376 P.2d 37 (1962). The fire itself raises no inference of negligence. Gray v. E. J. Longyear Company, 78 N.M. 161, 429 P.2d 359 (1967). There must be some evidence as to the cause of the fire. Waterman v. Ciesielski, 87 N.M. 25, 528 P.2d 884 (1974); see Renfro v. J. D. Coggins Company, 71 N.M. 310, 378 P.2d 130 (1963). There being no evidence as to the cause of the fire, there was no factual basis for applying res ipsa loquitur.
Accordingly, I would reverse that part of the judgment which awards damages against Reco Corporation and direct that judgment be entered in favor of Reco Corporation.