## Facts

- Verdell and Priscilla Koch owned a farm near DeWitt, Nebraska.
- On October 26, 1996, a high-voltage overhead distribution line maintained by Norris Public Power District fell into the Koches’ field and ignited a fire.
- Norris stipulated that the fire burned 86.6 acres and caused at least $41,243.25 in damages to crops and other property.
- The failed line was a two-wire line on wooden poles; the wire consisted of aluminum strands around a steel core, and the broken span was approximately 325 feet.
- Weather conditions were described as sunny and windy, without evidence of extraordinary storms or other extreme external forces.
- Norris personnel recovered the fallen wire segment but did not preserve it for inspection by the Koches; it was discarded and later unavailable after testing.
- Norris suggested the line might have been shot by hunters or vandals based on general reports of such activity in the area, but offered no direct evidence tying that theory to this line.

## Issues

1. Whether res ipsa loquitur permitted an inference of negligence against a public power district when a high-voltage line fell during non-extreme conditions and caused a fire.
2. Whether, to reach the jury under res ipsa loquitur, the plaintiffs had to negate speculative third-party causes such as vandalism or hunters shooting the line.
3. Whether the trial court properly granted a directed verdict for the defendant on the ground that negligence was not proven.

## Decision

- The Nebraska Court of Appeals reversed the directed verdict for Norris and remanded for a new trial.
- The court held the Koches presented a prima facie case under res ipsa loquitur sufficient to submit negligence to the jury.
- The court rejected the trial court’s requirement that the Koches disprove speculative third-party causes as a precondition to applying res ipsa loquitur.
- The court treated the hunters/vandals theory, on this record, as creating at most a jury question rather than defeating res ipsa as a matter of law.

## Legal Principles

- Res ipsa loquitur applies when (1) the occurrence is of a type that ordinarily does not happen without negligence, (2) the instrumentality was under the defendant’s control for purposes of responsibility for its condition, and (3) the plaintiff did not contribute to the occurrence.
- The doctrine permits a permissible inference of negligence from circumstantial evidence; it does not require proof of a specific negligent act to survive a directed verdict.
- “Exclusive control” for res ipsa purposes does not require absolute physical exclusivity; it is satisfied where the defendant is the party primarily responsible for construction, inspection, and maintenance of the instrumentality.
- A plaintiff invoking res ipsa loquitur need not eliminate every conceivable alternative cause; speculative third-party explanations, unsupported by evidence tied to the specific event, do not defeat the inference as a matter of law at the directed-verdict stage.
- Where key physical evidence about the failure is unavailable to the plaintiff and the defendant had superior access to it, res ipsa loquitur may be an appropriate means of proving negligence circumstantially.

## Conclusion

The court held that a power line’s unexplained fall under ordinary conditions, combined with the utility’s responsibility for the line and the absence of plaintiff contribution, supported res ipsa loquitur and required submission of negligence to the jury, making a directed verdict improper.


Koch v. Norris Pub. Power Dist., 10 Neb. App. 521, 632 N.W.2d 391 (Neb. Ct. App. 2001)