## Facts

- A landlord rented a residence to a father, who lived there with his 10-year-old son.
- The father gave the son a chemistry set, and the son conducted experiments for about a year without incident.
- The son used an electric popcorn popper in his bedroom to heat chemicals; a flame flared, igniting curtains and causing fire damage to the house.
- The landlord’s fire insurer paid the loss and, as subrogee, sued the father and son alleging negligence, including the father’s failure to prevent unsupervised chemical experiments.
- After the insurer paid the full loss, it was substituted as plaintiff as the real party in interest.
- A jury returned a verdict for the insurer against the father only, and judgment was entered on that verdict.

## Issues

1. Whether a jury instruction improperly shifted the burden of proof by requiring defendants to prove they were not negligent in a negligence action.
2. Whether, under a standard residential lease absent an express allocation of fire-loss liability, a landlord’s fire insurer may pursue subrogation against a tenant for fire damage allegedly caused by the tenant’s negligence.

## Decision

- The court reversed the judgment and remanded for a new trial.
- The trial court committed fundamental instructional error by effectively requiring the defendants to prove lack of negligence and by not properly instructing that the plaintiff bore the burden to prove negligence.
- The court adopted the rule that, absent an express agreement to the contrary, a residential tenant is treated as an implied co-insured under the landlord’s fire policy for purposes of fire loss to the leased premises.
- Because an insurer generally cannot subrogate against its own insured, the insurer had no right of subrogation against the tenant on these facts.

## Legal Principles

- In negligence actions, the plaintiff bears the burden of proving negligence by a preponderance of the evidence; jury instructions may not shift that burden to the defendant to prove non-negligence.
- Subrogation is unavailable against a person who is, as a matter of law, treated as an insured under the policy covering the loss.
- In a standard residential landlord-tenant relationship, rent is commonly understood to include the cost of the landlord’s fire insurance; absent an express agreement placing fire-loss responsibility on the tenant, the tenant is treated as an implied co-insured for fire damage to the premises, barring the landlord’s insurer from subrogation against the tenant.

## Conclusion

The court ordered a new trial because the jury was incorrectly instructed on burden of proof and held that, absent an express agreement making the tenant responsible for fire loss, the landlord’s fire insurer may not recover by subrogation from a residential tenant for negligently caused fire damage to the leased premises.


Sutton v. Jondahl, 532 P.2d 478 (Okla. Civ. App. 1975)