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Aetna Ins. Co. v. 3 Oaks Wrecking & Lumber

OPINION FILED SEPTEMBER 27, 1978.

AETNA INSURANCE COMPANY ET AL., PLAINTIFFS-APPELLEES,

v.

3 OAKS WRECKING AND LUMBER COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE OROS, Judge, presiding.

MR. PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 1, 1978.

On Sunday, June 15, 1969, a clear, hot, dry day, the building at 1406 South Indiana in Chicago caught fire. That building was being demolished by the defendant, 3 Oaks Wrecking and Lumber Company, a partnership (3 Oaks). The fire damaged two nearby buildings. The plaintiff insurers of those two buildings settled claims with their insureds and bring this action as subrogees. The jury returned verdicts for the plaintiffs totaling $94,200 and judgments were entered on those verdicts. The defendant appeals contending that the trial court was in error in refusing to direct a verdict in its favor and that there were numerous trial errors which require a new trial.

The complaint alleged that the defendant was negligent in its failure to secure the building against known dangers of fire presented by vagrants, and failure to provide a watchman to guard the building. In another count, one based on the theory of res ipsa loquitur, the plaintiffs charged that the building was in the exclusive control of the defendant and that fires do not ordinarily occur in buildings in which there is no source of energy or power in the absence of negligence by those in control of the building.

3 Oaks began their demolition in May 1969. The damaged buildings were located across an alley at 1407-11 South Michigan and at 1421-27 South Michigan. The first parcel was located directly to the west and the second parcel to the southwest of the defendant's building. The gas, electricity and water were shut off prior to the demolition. Acetylene and oxygen, the fuel for acetylene torches, were kept under lock and key at all times.

According to Augustin Riccio, a partner in 3 Oaks, it was a custom in the industry, which he characterized as an unwritten law, to lock up buildings which were in the course of being demolished. The usual procedure was to board up the windows and nail the doors to the building as soon as the wrecker took possession. The witness purchased four locks and gave them to his brother Lawrence Riccio who was in charge of the equipment and the men on the jobs. It was his responsibility to see that the building was locked at the end of the first day of wrecking. Thereafter, it became the duty of the last superintendent to leave the job to see that the doors and other openings to the building were locked up at night. The building had to be secured at all times. No one at 3 Oaks testified that the building was in fact locked before the fire.

Augustin Riccio testified that normally 3 Oaks removes salvage from the job before beginning actual demolition. The purpose of this is to acquire cash and to keep vandals away from the building under demolition. At the time of the fire 90% of the lumber salvage and 5% of the metal salvage was still in the building. Security was necessary because of the character of the neighborhood. The area was near "south skid row" and alcoholics were present. There were also hoboes who would ride trains out at the nearby Illinois Central Railroad yard. Those people tried to get into the buildings to sleep, and they would smoke and cook in the buildings if they could. Fire scavengers had gained entrance to the building and at least on one occasion had removed copper. Although all acetylene and oxygen was under lock and key at all times it would not take much for a professional thief to carry an acetylene torch and to cut the lock with a bolt cutter. Of the 20,000 buildings 3 Oaks had demolished there had been only two or three fires.

Augustin Riccio further testified that at the time of the fire the actual demolition had not progressed very far. The top two floors had been removed and a big hole had been torn out of the south side of the building which was likened to a scooped-out opening in the wall. Several thousand board feet of lumber were piled on top of the remaining floor of the building awaiting removal.

Across the alley to the north was a fire station located at 1401 South Michigan. Fireman Thomas Doyle worked at that station. He testified that it was the department's policy to check the buildings such as this for hazards so that firemen would not get hurt in the event there was a fire at night. Doyle made these checks at about 7 p.m. after the demolition had stopped for the day. He was able to enter the building by just opening the door of the barricade and walking in. There was neither a lock nor a hasp on the door. Doyle was last in the building approximately three or four days before the fire.

John Emmons resided in the building located at 1421 South Michigan. He testified that a door at the northwest corner of the building remained open at all times. His cat went into the building and he went in to look for it. He testified that the door was open a day or two before the fire and it was open the day of the fire. Emmons' attention was drawn to the fire by his wife who smelled smoke. He observed a swirl of smoke and then suddenly it was like an explosion and the whole building was on fire. He called the fire department and then began to wet down the roof of his building until fire equipment arrived.

Carl Baldascarra, a fire protection engineer, after viewing the photograph of the early stages of the fire, testified that the burning must have been very intense with the whole structure involved.

Thomas Nelson, a fire insurance adjuster, testified that after the fire Lawrence Riccio stated that night watchman was present as a rule but that on the night of the fire the watchman was off. Lawrence Riccio also said that they had trouble with transients coming in and building fires in the building next door.

The defendant argues that as a matter of law the defendant owed no duty to the plaintiffs. It cites Cunis v. Brennan (1974), 56 Ill.2d 372, 308 N.E.2d 617, Mieher v. Brown (1973), 54 Ill.2d 539, 301 N.E.2d 307, and Stribling v. Chicago Housing Authority (1975), 34 Ill. App.3d 551, 340 N.E.2d 47, generally for the proposition that the question of duty is one of law. It emphasizes that portion of those opinions referring to two elements considered in ascertaining if a duty exists, that is, the "unreasonable danger" or "unreasonable risk of harm" (Cunis, at 377) and "remote possibility" (Cunis, at 377-78) or "mere possibility" (Stribling, at 555) of the occurrence. There is no question that those cases stand for those propositions but their applicability to this case is not apparent. The factual situations in Mieher and Cunis are not argued. It is argued, however, that Stribling is similar and there the court found that the landlord owed no duty to guard against the original burglary. In Stribling the plaintiffs were residents in a housing project. For some time the two apartments on either side of the plaintiff's apartment were vacant. The plaintiff noticed persons entering and leaving and heard noises coming from inside both apartments. The plaintiff advised the defendant's agent about the circumstances, but no action was taken. Subsequently, the plaintiff's apartment was broken into on three separate occasions by breaking holes through the walls of the vacant apartment to gain access to the plaintiff's apartment. The appellate court affirmed the dismissal of the first count emanating from the first entry into the apartment and reversed the dismissal of the counts emanating from the second and third entries. The Stribling court concluded that under the "bizarre" facts in the complaint the Chicago Housing Authority had no duty to guard against the original burglary. However, after receiving notification of that burglary and the means by which it was accomplished the court stated that "the fact that another burglary could happen in the same fashion became eminently foreseeable." Stribling, at 556.

• 1 Circumstances in the case at bar can hardly be considered extraordinary or bizarre. Augustin Riccio testified that security was necessary because of the character of the neighborhood. The neighborhood was located in an area in which people tried to enter buildings to sleep and in doing so they would smoke and cook in the buildings if they could. Scavengers also sought entrance into the buildings to remove copper. Nelson testified that Augustin Riccio told him that they had trouble in the building right next door with transients seeking entry into the buildings and starting fires. The defendant's contention that no duty exists because it was not shown that ...


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