Appeal from the Circuit Court of Lake County; the Hon. Harry
D. Strouse, Jr., Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
George Johnson brought a negligence action against Hoover Water Well Service, Inc. (Hoover), in the Lake County circuit court to recover damages for personal injuries suffered by him in an explosion which occurred in an underground water well utility vault located on the property of Johnson's employer, North Riverwood Center (NRC). Hoover in turn sought indemnity or contribution from NRC. By special verdict the jury found Johnson and Hoover both negligent, but found that Johnson's negligence was not a proximate cause of his injuries. Johnson was awarded $909,000 in damages. Hoover's complaint for contribution was dismissed, and the jury found Hoover was not entitled to indemnity from NRC. Hoover appeals.
On the date of the accident, June 8, 1977, Johnson was in charge of maintenance for NRC. Hoover is an independent contractor in the business of installing and servicing water well systems. From 1967 to the time of the accident it serviced NRC's water well system.
Hoover raises a number of issues on appeal. Resolution of these issues requires an understanding of some of the technical aspects of NRC's water well system, as well as the history of the two wells on the property.
Prior to the mid-1960's, NRC acquired its water from a shallow well. An underground well pit, or utility vault, at the site of the well housed the electrical controls for the well and the water storage tank. The utility vault was concrete with a dirt or concrete floor, and was approximately five feet by six feet by five feet deep. The entrance to the pit was an opening about two feet square which was covered by a solid steel plate. The shallow well itself was vented to above ground. The utility vault, however, was not vented.
In 1963 a deep well was dug about 150 feet from the old shallow well and the old well was disconnected. The vault of the old well, however, was still used to house the electrical controls for the deep well pump. Hoover had no part in the construction of either the shallow or the deep wells, but it was called out by NRC when the deep-well pump needed repair. In 1968 Hoover proposed that the shallow well be reactivated to provide NRC with an emergency water source when the deep well was being repaired. To this end, Hoover installed a nonexplosion-proof pump in the shallow well and a three-wire cable in the pit. The cable provided electricity for the pumps.
The shallow-well pump, when operating, provided water to a storage tank which was buried in the ground but protruded through a wall of the vault so that the face of the tank and pertinent controls could be serviced from the vault. Hoover had also installed air release valves on the tank and an air compressor, which together performed the function of automatically maintaining the correct water pressure. However, according to Michael Butero, former vice president of NRC, the compressor had not worked since 1973. Hoover was not notified of this.
Occasionally, the water pressure would drop when there was too much air in the water storage tank. Johnson testified that he was instructed by Lon Hoover, the president of defendant corporation, to manually bleed air out of the water storage tank when this happened, so the tank would fill up with water. Mr. Hoover denied ever instructing Johnson on this procedure. Johnson testified that up until the day of the accident he never bled air off the tank when the shallow well was operating, but he had done this when the deep well was connected. Michael Butero had also bled the tank on several occasions. Mr. Hoover testified Hoover was never told that either Johnson or Butero were bleeding air manually.
On June 6, 1977, two days before the accident, Hoover was called by NRC to repair the pump. At that time, Hoover removed the deep-well pump and activated the shallow well by temporarily hooking up wires in the utility vault. The wires were exposed.
On the day of the accident, June 8, 1977, plaintiff Johnson was informed by Elizabeth Butero, the owner of NRC, that the water pressure at NRC was low. Johnson went out to the utility pit, removed the steel cover, and lowered himself into the pit. He opened a valve on the water tank to bleed off the air. He began to leave; he testified he never stayed in the vault while waiting for the air to bleed off. As he began to climb out, and as his head was level with the opening, an explosion occurred. Johnson was knocked back down into the pit and was on fire. He was able to climb out.
Johnson was never trained about working safely in the pit by either Hoover or NRC. He was unaware of a potential gas hazard in the well. He was a pipe smoker and carried his smoking materials in his shirt pocket. However, he testified he was not smoking and did not attempt to light his pipe at the time of the explosion. A witness who saw Johnson as he started climbing out of the pit did not see him attempt to light or smoke a pipe.
Theodore Tarr, fire chief of the Vernon Fire Protection District, arrived at the scene shortly after the explosion. He testified that he looked in the pit and heard a noise of something escaping from a valve on the water tank. The air compressor was not connected to the tank. After closing the air valve, he checked the pit with an explosion meter which checks the explosive ranges of flammable gases, and got a reading which was not in the explosive or hazardous range. He placed the cover back on the well pit and, 30 minutes later, opened the cover a couple of inches, placed the explosion meter into the well pit, and took another air sample. This sample showed the full scale on the explosive range of the meter.
Chief Tarr could not see nor smell any gas. He assumed there was methane gas in the pit because methane is sightless and odorless, and he could determine that no other gas was getting into the pit. Chief Tarr believed that the gas came from beneath the pit, as opposed to coming from the water tank. He testified that the wires in the temporary hookup were exposed, and the cover to the electrical box was open. At the bottom of the pit, Chief Tarr noticed a few spent matches and a matchbook or two. He also observed a closed tobacco pouch and a pipe. He saw no evidence of electrical arcing in the pit.
In Chief Tarr's opinion, the lower area of the pit, where the gas pushes up the air, did not contain sufficient oxygen to support combustion. He was, therefore, of the opinion that the explosion occurred in the upper area of the pit. The electrical boxes, switches and outlets were all in the lower area and could not, according to Tarr, have caused the explosion. He concluded that an attempt to light a smoking pipe in the upper part of the vault caused the explosion. Tarr testified that as of June 8, 1977, he was unaware of any methane gas explosions in his district.
Edward McLain, an industrial engineer, testified as plaintiff's expert witness. McLain testified that methane gas is an odorless gas which becomes flammable when it reaches the range of 5.33% to 14% in air. He stated that the introduction of air into a well pit in which methane gas is present would change the ratio of air to gas in that space and bring the mixture within the combustible range. In response to a hypothetical in which the circumstances of the explosion and the subsequent investigation were assumed, McLain expressed his opinion that flammable gas had accumulated in the pit and that several possible sources of ignition existed. He testified that lighting a match, striking a boot against a pipe, or electrical arcing from the equipment or wires in the pit could have caused the explosion. He stated that an arcing from the wires would not have been discovered in a subsequent investigation. McLain also testified that the temporary electrical hookup in the shallow well pit violated the National Electrical Code in that the wires were not insulated and the cover of the electrical switch was not closed. According to generally accepted engineering principles, the well pit should have been vented, and it was McLain's opinion that lack of venting contributed to the explosion. He stated that the use of an open-grated manhole cover would have provided adequate ventilation. McLain also testified it is customary when working in such a pit to test the atmosphere for the presence of combustible or toxic gases. It is also customary to have an additional "safety man" present at the site.
According to McLain, the Illinois Water Well Pump Installation Code requires a contractor who installs a well pump to provide for the release of gases from the well system. McLain was unable to identify such a vent in the photographs of the well. Finally, McLain stated that he would expect a contractor who suspected the presence of gas in the well to provide for adequate ventilation and to inform maintenance men of the hazards they might experience while in the pit.
Dr. Paul Torda, a consulting engineer, was defendant's expert witness. Approximately two years after the explosion Dr. Torda inspected the well pit for explosive mixtures and possible sources of ignition. He determined that an explosive, heavier-than-air gas was present in the pit, although he did not know the precise type of gas. Methane is a lighter-than-air gas. Dr. Torda believed that the source of ignition was a lit match since photographs of the scene did not indicate any signs of electrical arcing. Torda testified that the explosion hazard in the vault could have been reduced by testing the atmosphere in the pit before entering, by blowing fresh air into the pit or sucking out hazardous materials before entry, and by having another person present for any underground work. He testified that in 1977 it was the custom for employers to train their employees as to these procedures.
On cross-examination, Dr. Torda expressed his opinion that the solid steel cover which was on the utility vault was not safe because it provided no ventilation. He testified that nonexplosion-proof electrical connections or a boot striking a pipe in a pit in which explosive gas was present could under certain conditions cause a spark that would ignite the gas. Torda stated that in his opinion an underground pit which accumulates methane gas is a dangerous condition.
Lon Hoover testified that he observed bubbles in the water at the bottom of the shallow well pit prior to June 8, 1977. He stated that he suggested to Johnson's predecessor on the job that the water from the shallow well might support fire. He felt there was a possibility of a gas hazard, but did not know what type of gas was in the water. He had heard stories that there was methane gas in the area, but had never personally witnessed it. His company was never involved with a fire or explosion from gas in its 30 years of operation. In his opinion, the condition of the electrical setup or controls in the pit as of June 1977 was generally poor.
Mr. Hoover stated that on one or two occasions he may have discussed the gas problem with Mr. Butero as part of a sales proposal for drilling another deep well and above-ground utility vault. However, a written proposal to NRC to construct a pumphouse did not discuss the gas problem in the well. He stated he did not recall warning Mrs. Butero or Johnson about a specific danger of methane gas in the well. Hoover testified that it did not manufacture the equipment it installs, but it does select equipment which it considered appropriate for a particular job. The electrical wiring and transformer were in the pit when Hoover began its association with NRC, with the exception of the three-wire cable which provided power for the entire well system.
Hoover testified that he had been in the vault several times, usually to check out the electrical function of the pump to determine whether it needed servicing. He never tested the atmosphere in the vault before he entered because he did not think it was hazardous.
Carl Nichols, a certified court reporter, testified to certain statements made by Lon Hoover approximately one year after the accident. At that time, Mr. Hoover apparently stated that on several occasions pumphouses similar to the one here would accumulate gas and explode when an electrical arc from the pump was generated. Hoover also stated that he believed his comments to Johnson's predecessor regarding igniting the water in the well made it "very clear there was a gas hazard in it."
George Neely, a retired water well driller, testified by way of evidence deposition. Mr. Neely drilled the deep well in the early 1960's because the old shallow well "wasn't fit to use." Neely connected the deep well to the water tank in the shallow well pit by running an electrical wire from the deep well pump to the pit. He also installed the pressure switch and pump controls. However, none of these installations were present in the photographs of the well pit taken right after the explosion.
Neely had no knowledge of methane gas in the area when the deep well was constructed, but later learned of its presence in various areas in northern Illinois. He stated that when asked to drill in these areas it was his custom to verbally communicate to the owner the presence of such hazardous gas. It was also his practice to adequately vent the area.
Elizabeth Butero testified that NRC had an ongoing business relationship with Hoover with regard to repair and maintenance of the deep well. She testified that she did not recall Hoover ever recommending modification of the vault to provide for ventilation. She received a proposal from Hoover stating that an above-ground pumphouse should be constructed to replace the vault, but the proposal did not suggest there was a methane gas problem in the pit. Hoover did not recommend that explosion-proof equipment be used in the vault, nor did Hoover ever warn against smoking or any type of spark in the vault. Mrs. Butero was never aware of a methane gas problem.
Michael Butero testified that he had never heard of methane gas in the area. The day after the explosion, Lon Hoover told him it was common knowledge in the area that there was gas in shallow pits like the one at NRC. He testified that he had never looked at the electrical controls in the pit before the accident. The day after the accident he saw that the motor controls for one of the well pumps were wired up on a ...