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Regas v. Linton





APPEAL from the Circuit Court of Cook County; the Hon. THOMAS ROSENBERG, Judge, presiding.


Plaintiff appeals from a jury verdict rendered for defendant in an action to recover damages caused by a fire which partially consumed plaintiff's building. The gravamen of plaintiff's case was defendant's alleged negligence in the operation of an oxyacetylene torch utilized by defendant's employees in removing certain fixtures from the building. The issues presented for review involve questions of whether the trial court erred in its rulings on objections to certain evidence, in improperly commenting on certain other evidence, and in refusing to give a certain jury instruction submitted by plaintiff.

We reverse and remand with directions for the reasons which follow.

Testimony adduced from certain witnesses reveals the essential facts which follow. Plaintiff, John P. Regas, owned one of several commercial buildings at 305-15 W. Grand Avenue in Chicago on October 19, 1973, the date of the fire. The referenced building, the largest standing on the property, and the only one involved in this case, contained six stories and was constructed with exterior brick and completely wooden interior columns, floor beams, joists and floors. Plaintiff intended to remodel the property from its original use as a commercial steam laundry into showrooms for professions and occupations such as architecture, design, art and art galleries.

At the time of purchase by plaintiff some six months before the fire, the building housed a number of laundry-related fixtures, including metal pipes which were previously connected with tanks, hooks, ceiling runners and other types of fixtures required to be removed prior to the remodeling. On August 13, 1973, plaintiff entered into a written contract with defendant Kenslow Linton, then doing business as Linton Brothers, engaged in trucking and demolition services. Defendant was to remove the fixtures and other types of rubbish and debris. Work began shortly after the contract date, commencing on the first floor of the building and moving upward. By October 19, 1973, defendant's crew had reached the fifth floor.

Elevators were located on the rear, south wall of the building to the east of which was situated an electrical room or closet. Defendant and his crew started work at 8:30 on the morning of the casualty. Upon entering the building, they saw no fire or any unauthorized persons therein. Defendant supervised the removal of pipes running across the top of the fifth floor ceiling. His crew consisted of two men, one of whom was operating an oxyacetylene torch used to cut the steel pipes from the ceiling; they would then fall to the floor. The floor was wetted down with water as a safety precaution. The pipe was then cut into shorter lengths for removal. When the torch was used in this way, it was hot enough to melt the pipes, turning the metal red at the point of application. When the torch was removed, the metal would cool off. No protective metal shields were placed around the cutting work as it was being performed.

There were holes in the floors where previously removed vertical pipes used to supply water to laundry tubs had run up and down through the building. The pipes had been located all around the perimeter of the building, clustered together in sections, in most instances next to large support columns, some of which were located on the fifth floor near the elevator. In front and to the north of the elevator were two openings measuring 3' by 3' each, which had previously accommodated laundry chutes, utilized for dropping laundry bundles to lower floors. Defendant allegedly was seen by plaintiff dropping whatever object he was cutting through the laundry chutes, which he denied. Whether the chute openings were covered or not was also in controversy. The pipe openings were not covered. On the first floor, against the south wall and east of the elevator was a rubbish pile. The composition of the pile was in conflict. There was some evidence that it consisted in part of paper, lint, cotton and wood. This pile was located in the vicinity of the elevator and near the openings created by the removal of vertical pipes and the laundry chutes; in other estimates, however, it was as far away as 25 to 30 feet.

After working for approximately one hour in which more than 10 pipes were cut, varying in diameter from one to two inches, defendant left the fifth floor in order to fill some buckets with water for use as a wetting agent in the work area. As he descended he smelled smoke, stopped the elevator, opened the doors to the first floor, and saw flames come right into the elevator. The entire floor was smoking. Defendant removed an old mover's pad which had been on the elevator and smoothed out a path which permitted him to run out without stepping into the fire. After he exited the building, he called to his employees and they, too, got out without injury. He then ran to a nearby store in order to telephone the fire department. He reportedly told the storekeeper that "* * * he had set the building on fire with a torch," a statement defendant could not recall having made and later denied making.

The fire department arrived at the scene; however, before the fire was struck, a considerable portion of the building had burned, mostly in the rear or south half, with the roof in that area having burned completely through. The south stairwell was destroyed and portions of the flooring on various levels were completely burned. Other areas were charred. The building was later demolished.

Additional specific evidence will be considered in conjunction with the resolution of the various issues raised.

Plaintiff's theory of the case is that as defendant's crew was cutting pipe on the fifth floor with the oxyacetylene torch, molten metal was ejected from the pipe, found its way to one of the various holes in the floor near the cutting area, and fell through the openings of the various floor levels to the first floor where the metal fell directly onto or bounced into the rubbish pile situated on the first floor in proximity to those holes. The alleged proximate cause of the blaze was defendant's negligence in failing to screen the cutting area or otherwise sufficiently confine the molten metal residue and reduce or eliminate its incendiary potential. Plaintiff identifies a variety of rulings by the court and claims that each detracted from or precluded his proofs and at the same time strengthened defendant's. Although each would be grievous error in any trial, plaintiff argues, where the issue of liability is as close as in the present case, each became reversible error, relying upon Gabosch v. Tullman (1974), 21 Ill. App.3d 908, 316 N.E.2d 226.

Plaintiff complains that the trial court prejudicially restricted the direct examination of plaintiff's expert witness, Charles Lemme, a professional engineer to whose qualifications the defense stipulated. Through Lemme plaintiff sought to prove that byproducts of the oxyacetylene torch pipe cutting included sparks and molten globules of metal, and in setting a preliminary foundation for a hypothetical question, Lemme was permitted to explain in detail the physical processes involved. When the torch is so used the process actually removes metal from the existing piece. This is done by directing a very hot flame against the cutting object until the temperature of the pipe is raised high enough so that it will burn somewhat in excess of 1000 degrees Fahrenheit. When the base metal reaches that heat, a lever on the cutting torch is then depressed by the operator which causes pure oxygen to be applied to the metal impinging upon the hot steel and causing it literally to burn. The metal that is heated is oxidized and is blown out in the process, exiting in the form of sparks and molten globules. The length of time that molten globules will stay hot after they have exited from the cut on the pipe depends upon their size; very small ones cool down in a few seconds; larger ones can stay above 1000 degrees Fahrenheit for up to several minutes depending upon their size. Wood, paper or cloth, all consisting of cellulose, have ignition temperatures in a range of between 900 to 1000 degrees Fahrenheit.

A hypothetical question was put to Lemme by plaintiff's counsel as follows:

"Q. Now, I am going to ask you a hypothetical question, and I am going to ask you to assume certain facts on that question. I want you to assume that workmen * * * are working with a cutting torch on the fifth floor of a building. On the fifth floor of that building, there are holes in the floor which have not been sealed or closed off * * * and I am going to ask you how long it would take to have a molten globule of metal, like ...

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