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Sandburg-schiller v. Rosello

OPINION FILED OCTOBER 28, 1983.

SANDBURG-SCHILLER ET AL., PLAINTIFFS-APPELLEES,

v.

LUIS F. ROSELLO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Mary Ann McMorrow, Judge, presiding.

PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 8, 1983.

Plaintiffs, owner/landlord and several tenants of an apartment building, filed a three-count complaint against defendant, a co-tenant, to recover damages suffered from a fire which originated in defendant's apartment and spread throughout the building. The three counts of the complaint sounded in negligence (count I), res ipsa loquitor (count II), and wilful and wanton misconduct (count III). The trial court directed a verdict for defendant and against plaintiffs on count III and, pursuant to separate jury verdicts, entered judgment for plaintiffs and against defendant on counts I and II. On appeal, defendant contends that: (1) under Illinois law, a landlord has no cause of action against a tenant for fires occurring during the term of the lease; (2) evidence of defendant's drinking was inadmissible without indicia of intoxication; (3) the trial court improperly limited the cross-examination of various witnesses as to possible causes of the fire; (4) the verdicts were against the manifest weight of the evidence and the trial court erred in denying defendant's motions for a directed verdict, judgment n.o.v. and new trial; and (5) plaintiffs failed to establish a prima facie case of res ipsa loquitor. In the alternative only, plaintiffs cross-appeal, contending that the trial court erred in directing a verdict on count III. In addition, plaintiffs allege that because defendant's notice of appeal was directed only to the jury verdict and not to the denial of the subsequent post-trial motion, this court lacks jurisdiction to consider the substance of the appeal. For the reasons that follow, we find that this court does have jurisdiction and affirm the judgment of the trial court.

PLAINTIFFS' CASE

At approximately midnight on December 10, 1974, or shortly thereafter on December 11, 1974, the Chicago fire department responded to a fire in defendant's seventh floor efficiency apartment at 88 West Schiller, Chicago. Testifying as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102), defendant stated that on the evening of December 10, 1974, from approximately 5:30 p.m. to 10 p.m., he attended a dinner party two blocks from his apartment. Approximately 10:15 p.m., he returned alone to his apartment. Generally, when it was early enough, he would have a cigarette and either read or watch television before going to bed. Although defendant recalled smoking at the party, he could not recall whether he had smoked upon returning home. If he had smoked, however, he would have done so while sitting on the sofa in the living room area. Defendant admitted to being a habitual smoker, having smoked for approximately 23 years. When he went to bed that evening, all electrical items, with the exception of the clock in the bedroom area, were turned off. Defendant had never received an electric shock from any of these items, and all cords were in good condition.

Approximately midnight, defendant was awakened by a shortness of breath. Although his apartment was filled with smoke, he did not see any sparking or flames, nor did he feel any concentration of heat on one side of the apartment or the other. He opened the window on the north wall behind his sofa in the living room area, breathed the air for a few seconds and then ran out of the apartment and sat down on the common stairway to catch his breath. He then went down to the first floor. Defendant never called the fire department or attempted to warn any of other tenants. Although defendant recalled talking to some firemen that night, he did not remember the substance of the conversation.

Defendant further testified that he lived alone in his apartment and had the only set of keys. On examination by defense counsel, defendant stated that he thought he went straight to bed after returning home from the party.

Next, Thomas Stuckey, security director for the apartment building, testified as to the construction and the hot water convection heating system of the apartment. On the morning of the fire, Stuckey arrived at the scene approximately one hour after the fire department had been called. After the firemen left, defendant's apartment was locked. It was reopened to remove the drums of debris approximately one week later. The electrical system was left untouched for approximately one week.

On cross-examination, Stuckey testified that the only recognizable furnishings in defendant's apartment after the fire were a floor safe, springs from a hide-a-bed, a metal filing cabinet, and sofa springs. The wood facing on the heating unit located on the north wall was charred and the center was missing and the kitchen cabinets were totally burned off the wall. The refrigerator and range were not removed until approximately two weeks later. On redirect, Stuckey explained that the metal portion of the heating unit always remained cool enough to touch.

Next Lieutenant Andrew Blaine, Chicago firefighter, testified that in December 1974, he was assigned to investigate fires for the bureau of fire investigation, a branch of the Chicago fire department which specialized in determining the cause and origin of fires. Blaine had been trained in investigation at the fire academy, had responded to over 10,000 fires and had investigated approximately 3,000 fires.

On the morning of December 11, 1974, Blaine and his partner, Ronald Drash, arrived at the scene of the fire after the main body of the blaze had been extinguished, went immediately to defendant's apartment, perused the area, talked to the firefighters who were overhauling the debris, talked to defendant, and made an investigation of the scene to determine cause and origin. When Blaine asked defendant what had happened, defendant told him that he had been smoking on his sofa after returning from a party and had dropped a lit cigarette on the sofa.

Blaine further stated that after he and Drash searched the apartment, eliminating various causes of ignition, it was their "opinion at that time * * * that the fire had originated in the sofa by careless use of smoking materials." Although Blaine found some fire damage in the kitchen and bathroom, he was satisfied by the height and depth of the burning or charring that the fire did not originate there. Moreover, there was no indication of arson or of an incendiary fire. He has never seen hot water heaters or pipes cause a fire. Further, the burn patterns in defendant's apartment indicated that the fire had occurred on the north wall of the apartment in the living room area, outside of the radiator. Blaine noticed nothing unusual about the electrical circuitry. During the investigation, Blaine took notes which he referred to later that day when he and Drash wrote their reports.

On cross-examination, Blaine testified that although there was damage to the bedroom area wall and windows, it was clear that there had not been as much heat in the bedroom area as there had been over the sofa in the living room area. Blaine admitted that at one time he had stated that he thought the fire could have started in the hide-a-bed, but, at that time, he was under the impression that the sofa was used as a bed. Defense counsel then attempted to impeach Blaine by reading from a deposition taken in May 1975, in which Blaine stated that he thought the fire originated in the bedroom. In response, Blaine explained that he had been confused about the directions of the apartment at that time. Defense counsel then read from a deposition taken in October 1977, in which Blaine stated that: "We determined the fire had originated in the area against the wall where the sofa had been. * * * I believe it was an interior wall." At trial, Blaine testified that the fire originated on the north wall which was an exterior wall. In response to whether he meant the wall near the hi-fi, Blaine indicated that he was referring to the couch because when the window was opened above the smoldering couch, the oxygen would have raised the temperature of the fire and caused the more intense burning and charring in that area. Regarding the lighting in the apartment, Blaine indicated that although he is not an electrician, he inspected the lights "for signs of them burning, some such signs. I assume it wasn't electrical." There was no shorting damage at the outlet behind the couch.

Defense counsel then attempted to impeach Blaine on several points by reading from depositions in which Blaine had stated: (1) he did not know whether wires in the outlets were damaged; (2) he did not recall defendant's telling him that his dropped cigarette had caused the fire; (3) it could possibly have been an electrical fire caused by a malfunction of electrical circuitry behind the sofa. In response, Blaine testified that: (1) he never stated that he had examined the wires in the outlets; he merely looked at the outlets; (2) the questions asked at trial and during the deposition were dissimilar and required different answers; and (3) anything is possible; but in this case, all possibilities other than the cigarette had been ruled out.

Regarding televisions, wiring and electrical cords, Blaine admitted that he had heard that they can start fires. However, he had eliminated them as possible causes for three reasons: (1) no moving marks; (2) items were not turned on; and (3) he saw no other source of ignition other than a cigarette. Further, Blaine admitted that it is possible that there could have been other sources of ignition which he did not see. Blaine did not recall examining any of the electrical appliances, the hi-fi or the television, and admitted that it is possible that the cords he did not see could have caused the fire. However, he had never heard of an appliance that is turned off starting a fire and had never seen, read or heard of a lamp malfunctioning and causing a fire. On redirect, Blaine explained that as a lit cigarette burns into the material of a couch and falls below the surface of the couch, the heat which is contained in the area builds and eventually bursts into flame when sufficiently oxygenated.

Next, Donald Miller, causal investigative engineer, testified as to his examination of defendant's apartment five days after the fire. Regarding the electrical service, Miller explained that each apartment has its own electrical distribution system which distributes power throughout the apartment via various circuits to receptacles, switches or light fixture outlet boxes. Miller examined the distribution feeders and pipes which encompassed the wiring as well as every fixture-type box and receptacle to inspect for electrical damage, looking for evidence of an electrical breakdown, i.e., short circuit or fault. Miller explained that when a short circuit has occurred, there is generally vaporization of the conductive material. There was no evidence of short circuit vaporization or any type of fault in the wiring. Miller also examined the electric range and refrigerator and all electrical feeders to them and concluded that there was no evidence of an electrical breakdown. Based on his experience and examination of defendant's apartment, Miller stated, with a reasonable degree of certainty, that the electrical system was not involved in causing the fire. Further, because there was less significant burn damage in the kitchen and bathroom areas than in the living-dining area, Miller eliminated the kitchen and bathroom as areas of fire origin.

Miller further testified that because all of the debris had been removed from defendant's apartment by the time he made his inspection, he was not able to determine a specific cause. However, he was able to get a better idea of burn patterns. The most severe melting of plastic was found in the receptacle on the north wall of the living-dining area, near the air conditioner, indicating that this area was either exposed to the longest term burn or to the highest localized area of heat. In response to plaintiffs' counsel's hypothetical which asked Miller to assume all facts previously put into evidence, Miller stated that his opinion as to the point of origin of the fire, based upon a reasonable degree of scientific certainty, was that the fire started in the northwest corner of the living-dining area where the couch, table, hi-fi and end tables were located. As to the cause of the fire, Miller further stated, "Given the facts as I now know them, based on all of the photographs that are available to me and the testimony that has been made available for me to read, in my engineering opinion the fire being a smoldering type fire by necessity, because of all the smoke involved, originated in that couch." The bases for this opinion were: (1) burn and char patterns, (2) heat and metal discoloration patterns, (3) photographs, (4) general personal observations, (5) location of a fuel source in that area, and (6) defendant's observations.

Regarding the heating system, Miller stated that after examining the heater, he concluded that because the water temperature was far below the ignition temperature of combustible materials required to cause a fire, the heating system could not have caused the fire.

On cross-examination, Miller testified that although the wall behind the hide-a-bed in the bedroom area was partially gone, the burn and char patterns that were visible did not support the suggestion that the mattress had been smoldering. Further, because other metal objects in the apartment similar to the metal window frames behind the couch did not melt, Miller assumed that there had been a concentrated fuel load in the melted frame area and, more probably, a longer term burn. Although the windows were boarded up and the aluminum frames concealed by the time Miller inspected defendant's apartment, he did see pictures of the outside of the building taken after the fire which showed no damage to the frames in the bedroom area.

Regarding the television set, Miller indicated that a television in the "off" position could catch fire only if it had an "instant on" feature. Regarding the lamp, Miller explained that when the switch is off, and the cord is plugged into an outlet, there is voltage running through the cord which might give a shock, but there is no electricity in the cord. Further, if a fault occurs between a receptacle and a switch, a resulting arc would generate substantial heat. Faults can develop over a period of time or occur spontaneously. However, when a fault causes an arc in a wire, there is some physical evidence of the occurrence at the receptacle, i.e., loss of ductility in the building wiring and discoloration on the copper conductive material. If an arc occurs near the lamp itself, the heat will usually burn the insulation off the cord all the way back to the receptacle. In defendant's apartment, there had been on indication of arcing at the receptacles.

On redirect, Miller explained that when a television ignites, there is an open flame. Similarly, when arcing occurs, it generates a temperature in excess of 1900° F. which would immediately ignite materials in the vicinity, including the insulation material on the wiring, and cause an open flame, very little smoke and an odor. In Miller's opinion, a smoldering fire caused the oxygen deficient atmosphere in the apartment. The source of the smoldering fire would have to have been a source of energy that would be long-term in order to ignite fire-retardant materials that do not readily burst into an open combustible flame. Miller indicated that he would not expect a black and white television such as defendant's to smolder and cause a room to become oxygen deficient.

Next, Michael Boden, airline pilot and former tenant in the same building in which defendant resided, testified that prior to December 10, 1974, he had met with defendant twice for approximately 15 minutes each time to discuss the sale of defendant's couch and carpeting. At both of these meetings, Boden observed defendant's speech, complexion, and manner of walking and moving. On the night of December 10, 1974, approximately 11 p.m., Boden rode the apartment elevator with defendant from the lobby to the seventh floor where defendant exited. At that time, Boden noticed that defendant had an extremely flushed complexion, drooping eyelids, a generally slow manner and was leaning against the corner of the elevator. Further, when greeted by Boden, defendant mumbled an incomprehensible reply and did not make any eye contact. When Boden queried defendant as to their ongoing negotiations regarding the purchase of carpeting and furniture, defendant indicated that he did not want to discuss it at that time. Based upon his experience and training in detecting unusual aberrational behavior such as intoxication, Boden was of the opinion that defendant was intoxicated on the evening of December 10, 1974.

On cross-examination, Boden stated that at his meetings with defendant, defendant spoke slowly and distinctly, with a Cuban accent. When Boden saw defendant in the elevator on December 10, he did not notice defendant staggering nor did he smell liquor on his breath. Boden admitted that there was nothing unusual about a person leaning against the wall of an elevator, but, in light of defendant's imminent move from the building, he did find it unusual that defendant did not want to discuss the sale of his couch and carpeting.

Pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102), defendant was then recalled as an adverse witness and testified that on the evening of December 10, 1974, he had had two glasses of wine with dinner. Further, defendant stated that he has been drinking wine with his dinner for 35 years and it does not make him intoxicated. He had had nothing to drink before or after dinner that evening.

DEFENDANT'S CASE

On direct examination, defendant testified that the black and white television which he had at the time of the fire was the type whose picture came on "right away." Defendant denied dropping a lit cigarette into his sofa on the night of December 10, 1974.

On cross-examination, defendant stated that he had purchased his television in approximately 1966 and that, at the time of the fire, it was in good condition, never having been repaired. On the night of December 10, 1974, the television was plugged into an outlet, although he was not sure which one. He did not see the ...


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