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Frisch Contracting Serv. v. Northern Ill. Gas Co.





APPEAL from the Circuit Court of Kane County; the Hon. JOHN A. KRAUSE, Judge, presiding.


Rehearing denied March 26, 1981.

Plaintiff, Frisch Contracting Service Corp., instituted this negligence action for property damage, alleging that a gas main installed by defendant Smith Construction Company and gas service pipes installed by defendant Northern Illinois Gas Company punctured a sewer system being installed by plaintiff, and that, as a result, plaintiff incurred expenses in excess of $15,000, in reexcavating and replacing the system. On appeal, plaintiff contends that the trial court erred in directing a verdict for damages of only $4,000 against defendant Northern Illinois Gas Company.

Trial was by jury. The verdict for Smith Construction Company was directed at the close of plaintiff's case, on the trial court's finding that plaintiff established negligence, but failed to establish proximate cause. The court directed a verdict against Northern Illinois Gas Company after Northern Illinois Gas Company rested without presenting any evidence. Then the trial court directed a verdict as to damages finding that the "only competent" evidence of damages was in the amount of $4,000.

We reverse both the directed verdict in favor of Smith Construction Company and the directed verdict on damages as to Northern Illinois Gas Company.

In 1972, plaintiff contracted with a general contractor to install the following underground sewer improvements in a Village of Hampshire, Illinois subdivision: (a) a 1200-foot sewer main, which ran east-west, and was laid on a slope, 12 feet below road grade at its western-most point, and 3-6 feet below road grade at its eastern-most point; and (b) sewer service or lateral pipes about 30 feet in length, which joined the sewer main and sloped upward to the property lines on the north and south sides of the main. Manholes were located at each end of the main and at 400-foot intervals. Plaintiffs completed the installation in June 1972, and needed to be certified by the village for conformity with certain infiltration standards.

Defendants subsequently installed underground gas improvements. In October 1972, under contract with Northern Illinois Gas Company, defendant Smith Construction Company installed a gas main parallelling plaintiff's sewer on the north; the main was located five feet off the north property lines. In January 1973, Northern Illinois Gas Company itself installed gas service lines running from the gas main to lots on the north and south sides of the sewer and gas mains. It appears that both the gas main and services were laid at a uniform depth of 30-36 inches; that the actual depth could have been 8 inches deeper, since depth was determined by road grade at the time of installation, rather than finished road grade; and that neither Smith Construction Company nor Northern Illinois Gas Company attempted to locate the sewer system during installation because both expected that sewer pipes would be laid below the frost line, or at least four feet below the ground.

Thereafter, during testing required by the village, the sewer system exhibited problems. In July 1973, an infiltration test was conducted over the main in sealed, 400-foot segments. At that time, the water table was high, but did not immerse the entire system. The test indicated that a grossly excessive amount of water was seeping into the deep, western-most segment; that seepage was only minimally excessive in the middle segment; and that the shallow, eastern-most segment had no infiltration problems. Over the course of three weeks, and with the help of a television visualization, about 12-14 problems were located in the deep and middle segments, none attributed to either defendant's negligence. After repair, and in August or September, 1973, the system passed infiltration tests. Shortly thereafter, plaintiff's system was required to undergo an exfiltration test to determine the amount of water seeping out of the sewer when sealed. An initial nonsegmented test was conducted, and the system failed this test. A second test was then conducted, the results of which are disputed. Following the second exfiltration test, and continued failure to pass exfiltration standards, and on the advice of a long-time business colleague, Marvin Frisch, plaintiff's president, decided to reexcavate and replace the entire system, and hired the DuPons Construction Company to help with this job.

In the course of reexcavation, sometime after mid-October 1973, damage to the main and laterals, which is the subject of this lawsuit, was discovered. During excavation of the sewer main, workers found four instances in which Northern Illinois Gas Company's gas service pipes perforated the sewer main by driving the service pipes through the sewer main. The perforations were located in the shallow and middle section of the main. During excavation of the sewer laterals, which followed complete replacement of the sewer main, workers found that at least two sewer laterals, located in an area corresponding to the shallow 400-foot segment of the main, had been severed at points proximate to Smith Construction Company's gas main installation. Charles Shore, an employee of DuPons Construction Company, who observed the severed laterals, described it in this manner: "I saw the pipe that was severed, and below that pipe that was severed was our clay sanitary sewer lateral. Below the clay lateral in the area that was severed was the gas main; pieces of the clay lateral lay in the trench below the gas main."

The first issue presented for our review is whether plaintiff's evidence was sufficient to withstand a directed verdict for Smith Construction Company. Since the trial judge specifically found as a matter of law that the evidence did not establish that the severed laterals proximately caused the sewer system to fail exfiltration tests, we confine our analysis primarily to the proximate-cause issue. According to plaintiff's expert, Henry Uteg, licensed engineer and project supervisor for the subdivision, a puncture anywhere in the sewer system would cause it to fail a nonsegmented exfiltration test; however, in a test conducted over 400-foot sealed segments the cause of exfiltration failure could be attributed only to punctures located within a segment that failed the segmented test. The parties don't dispute that the first test was conducted in a nonsegmented manner and that the system failed the exfiltration test. The dispute is confined to the second test. Plaintiff claims that it also was a nonsegmented test which failed exfiltration requirements therefore establishing proximate cause. Defendant claims that it was conducted in 400-foot segments, and that the shallow segment, corresponding to the severed laterals, passed, thus requiring a conclusion that the severed laterals were not the proximate cause of the exfiltration failure.

Plaintiff relies on the testimony of Marvin Frisch to the following effect. After learning of the results of the first test, he ordered a second test and was present to observe the test. It, too, was conducted in a nonsegmented manner, and the system failed the test. He did not order a segmented test. It was unnecessary, since the earlier segmented infiltration test showed that the shallow and middle segments were "all right." It was also impossible to do, since the company did not own, nor had it rented or borrowed, sufficient equipment to perform the test in that manner. On cross-examination he acknowledged a prior deposition statement that he couldn't recall whether a segment or nonsegmented test was done, but said his recollection was exactly as he testified.

Defendant relies on the testimony of plaintiff's employee, Roger Haeger, who stated substantially the following: on Marvin Frisch's order, a second test was conducted in sealed 400-foot segments, but he could not recall the results of the test. He acknowledged a prior deposition statement that the shallow and middle 400-foot segment passed the test, but said he "would have assumed those sections passed exfiltration tests, since they passed infiltration tests." Following the second exfiltration test, he visually checked the area, including the points along laterals proximate to the gas main, and saw no water bubbles on the ground.

• 1 Plaintiff has the burden of proving that its injury was proximately caused by defendant's negligence, and determining proximate cause is "preeminently for the jury." (Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 117 N.E.2d 74; see also, Murphy v. Messerschmidt (1977), 68 Ill.2d 79, 87, 368 N.E.2d 1299.) A directed verdict is proper if causation is not shown. (Driscoll v. C. Rasmussen Corp. (1966), 35 Ill.2d 74, 79, 219 N.E.2d 483; Hagerman v. National Food Stores, Inc. (1972), 5 Ill. App.3d 439, 283 N.E.2d 321.) The standard of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, governs the propriety of a directed verdict as to the proximate cause issue. (Hagerman v. National Food Stores, Inc. See also Murphy v. Messerschmidt (1977), 68 Ill.2d 79, 86, 368 N.E.2d 1299; and Ohligschlager v. Proctor Community Hospital (1973), 55 Ill.2d 411, 416, 303 N.E.2d 392.) A verdict "ought to be directed * * * only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510.) The Pedrick standard does not permit the trial court to resolve issues of credibility or weigh the evidence on the motion for directed verdict. (Spidle v. Steward (1980), 79 Ill.2d 1, 10, 402 N.E.2d 216.) However, the presence of some evidence favorable to non-movant does not always bar a directed verdict, as where the evidence loses significance in the context of all other evidence. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 504-05; Belleville National Savings Bank v. General Motors Corp. (1974), 20 Ill. App.3d 707, 313 N.E.2d 631.

• 2 The pivotal issue in our review of the directed verdict for Smith Construction Company is the significance to be accorded Haeger's testimony concerning the second exfiltration test. Haeger's testimony aside, plaintiff submitted evidence of proximate cause by its witnesses' testimony concerning failure of the first test, and Frisch's testimony concerning failure of the second test. This coupled with the evidence that the sewer services were put in first and the gas main subsequently, and the testimony that the gas main was later located below the severed sewer services, were sufficient facts of proximate cause to reach a jury. We do not agree with defendant's argument that Haeger's testimony conclusively established that the damaged laterals were not the cause of the exfiltration failure. At best his testimony suggested that a segmented test was done and that some segment(s) passed: at trial he qualified the accuracy of his own deposition statement; beyond his own qualification, the deposition statement itself indicates that Haeger may have confused the exfiltration test with infiltration tests. We therefore cannot view Haeger's testimony as substantive evidence which renders impossible or weakens ...

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