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Kruger v. Newkirk

OPINION FILED JULY 23, 1976.

JOHNNIE KRUGER ET AL., PLAINTIFFS-APPELLANTS,

v.

BILL NEWKIRK, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Clinton County; the Hon. RAYMOND O. HORN, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from a judgment of the circuit court of Clinton County granting defendant's motion for judgment at the conclusion of the plaintiff's evidence and denying plaintiff's motion for a new trial.

Appellants contend that the trial court erred in granting judgment for defendant at the close of the plaintiffs' evidence, since the doctrine of res ipsa loquitur was applicable to raise an inference of defendant's negligence.

Appellee contends that the doctrine of res ipsa loquitur is inapplicable as it was not properly pleaded and because the instrumentality causing the damage was not within the exclusive control of the defendant.

The appellants purchased a new home from Joseph Corrigan, constructed according to Corrigan's specifications by the Bruemmer Construction Company. The appellee Newkirk, d/b/a Newkirk Plumbing and Heating, was the subcontractor of the Bruemmer Construction Company for plumbing of the residence. The appellants actually lived in the house for approximately 15 days between the time they began to move into the residence on May 26, 1973, and the time they left the home for summer school following the weekend of July 4, 1973.

On July 12, 1973, water damage was discovered by Joseph Corrigan, who had been given a key to the house by the plaintiffs. Corrigan found water flowing down into the basement through the recreation room and discovered a large accumulation of water in the cabinets under the sink. He concluded the leak originated in the pipes underneath the sink and called the appellee. The appellee repaired the leak in the copper tubing where a sweat fitting had come apart.

At the trial, the appellants testified that they had used the plumbing in the manner for which it was intended and had not experienced any difficulties prior to the water damage discovered on July 12, 1973. Corrigan testified that the roof was intact, the faucets were turned off, and the doors were locked. To Corrigan's knowledge, only the telephone servicemen entered the house between the time the appellants departed and he discovered the water damage. There were no signs of entry or vandalism. The appellee testified that the pipe was not bent, mutilated, or broken, but had been "pulled apart." The appellee also testified that when such sweat fittings are properly installed, they do not leak.

Appellants argue that the doctrine of res ipsa loquitur was applicable and the criteria for its application were met, and the trial court thus erred in granting defendant's motion for judgment at the close of plaintiffs' evidence and refusing to grant plaintiffs' motion for a new trial. Appellants argue that the leak in a newly installed water pipe does not normally occur in the absence of negligence. Further, appellants argue that the appellee was in control of the instrumentality at the time of the alleged negligence, and the evidence establishes that other reasonable explanations of the damage have been negated. As a result, appellants argue that a prima facie case against the appellee was established by the evidence.

Appellee claims that the doctrine of res ipsa loquitur is available only if the plaintiff apprises the defendant of his intent to rely on the doctrine by concise allegations in general terms. Appellee urges that appellants' pleading states a claim of specific, not general, negligence, and the doctrine is not available. Even if available, appellee argues that the appellants failed to establish that the instrumentality was in the exclusive control of the defendant as it was not a dangerous agency for which the defendant has a non-delegable responsibility to maintain.

It is true, as appellee notes, that specific allegations of negligence will not support the application of the doctrine of res ipsa loquitur. (Kerby v. Chicago Motor Coach Co., 28 Ill. App.2d 259, 171 N.E.2d 412; Erckman v. Northern Illinois Gas Co., 61 Ill. App.2d 137, 210 N.E.2d 42.) In Erckman, the appellate court reversed plaintiff's verdict and ordered a new trial in an action for damages resulting from an explosion and fire when natural gas escaped from defendant's pipeline. The plaintiff's complaint was specific in charging the gas company with negligent installation of the gas line as the company "negligently and carelessly permitted the said gas main to deteriorate and the walls to become weakened and filled with holes." Res ipsa loquitur is not available to a plaintiff who alleges only specific negligence as res ipsa places a "burden on the plaintiff to apprise the defendant of his intent to rely thereon by concise allegations in general terms." Erckman v. Northern Illinois Gas Co., 61 Ill. App.2d 137, 145.

In this case appellants' complaint alleged that the leak was "proximately caused by the unworkmanlike installation of said water line and solder joint while under the exclusive control of the defendant." Plaintiffs did not allege any specific act as, for example, improper use of materials or improper application of heat to the solder joint, which would constitute "unworkmanlike installation."

• 1 Plaintiffs' complaint alleged only that some act of "unworkmanlike installation" was committed while the pipe was in the control of the defendant which caused the leak and resulted in damages to the residence. The allegation of negligence was concise, and sufficiently general to apprise the defendant of the plaintiffs' intention to rely on res ipsa loquitur. No special form of words is necessary to rely on the doctrine of res ipsa loquitur. (Erckman v. Northern Illinois Gas Co.) Plaintiffs' complaint was not so specific in its allegations as to lose its reliance on res ipsa loquitur.

• 2 When properly pleaded, res ipsa loquitur requires the plaintiff to establish two conditions before an inference of negligence is raised. The accident must be of the kind which does not ordinarily occur in the absence of negligence and the instrumentality or agency causing the injury complained of must be within the exclusive control of the defendant. Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 207 N.E.2d 305; Moore v. Jewel Tea Co., 116 Ill. App.2d 109, 253 N.E.2d 636.

• 3 As to the first condition, the accident must be one which itself suggests negligence and not be of the type that is as readily accountable for on the hypothesis of pure accident without fault. In Hunter v. Alfina, 112 Ill. App.2d 432, 251 N.E.2d 303, where a kitchen chair used for a number of years collapsed under the weight of the plaintiff, the court refused to apply res ipsa loquitur because the collapse of the chair did not itself suggest negligence. Such is not the case here. Common experience suggests, and appellee himself testified, that a newly constructed solder joint, if properly installed, would not develop a ...


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