## Facts

- Sellers agreed to sell buyers land and a mobile home under a purchase and sale agreement with closing set for August 15, 1987.
- The agreement provided that buyers were entitled to possession at closing, risk of loss remained on sellers until closing, and buyers could terminate if the property was destroyed by fire before closing.
- Closing was delayed due to sellers’ difficulty clearing title.
- Before closing, buyers took possession, moved employees into the mobile home, and restored electrical service.
- The mobile home was destroyed by fire shortly after buyers’ occupancy began; an investigator attributed the fire generally to an electrical device overheating or shorting.
- Buyers notified sellers that they were terminating the contract under the fire-loss termination clause.
- Sellers sued buyers for breach of contract, negligence, and trespass.
- The trial court granted summary judgment for buyers on breach of contract and negligence; the trespass claim was not resolved by that ruling, and sellers appealed.

## Issues

1. Whether buyers’ early possession shifted risk of loss to buyers despite an express contract term placing risk of loss on sellers until closing and allowing buyers to terminate upon pre-closing fire loss.
2. Whether the sellers produced sufficient evidence of negligence, including under res ipsa loquitur, to avoid summary judgment when the specific cause of the fire could not be established.
3. Whether circumstantial evidence permitted a reasonable inference that buyers’ alleged trespass proximately caused the fire, precluding summary judgment on trespass.

## Decision

- The court affirmed summary judgment for buyers on the breach of contract claim.
- The court affirmed summary judgment for buyers on the negligence claim, rejecting res ipsa loquitur on the record presented.
- The court reversed to the extent the ruling would foreclose the trespass theory, holding there was a jury question on proximate cause for trespass based on circumstantial evidence.
- The case was remanded for further proceedings on the trespass claim.

## Legal Principles

- Express risk-of-loss provisions in a real-estate purchase agreement control; early possession by the buyer does not alter the contract’s allocation of risk of loss, even if the early occupancy is assumed nonpermissive.
- Res ipsa loquitur does not apply where a fire does not, by its nature, support an inference of negligence and the evidence does not show the defendant’s negligence was the more probable cause.
- Proximate cause for trespass-related property damage may be shown through circumstantial evidence sufficient to permit a reasonable inference linking the trespass to the loss, even where negligence proof is inadequate.

## Conclusion

The court enforced the contract’s allocation of risk of loss to the sellers until closing and upheld dismissal of the sellers’ negligence claim, but held that the sellers presented enough circumstantial evidence to send the trespass causation question to a jury.


Voorde Poorte v. Evans, 832 P.2d 105 (Wash. Ct. App. 1992)