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Dyback v. Weber





Appeal from the Circuit Court of Lake County; the Hon. Lawrence Inglis, Judge, presiding.


Rehearing denied August 6, 1985.

The plaintiff, Claudette Dyback, sued the defendants, Arthur J. Weber and Francis E. Weber, doing business as Weber Brothers Construction Company, in the circuit court of Lake County, for damages caused by fire to a house owned by the plaintiff. The defendants had been hired by the plaintiff to repair the unoccupied house which had previously been damaged by a fire caused by lightning.

The cause came on for jury trial on plaintiff's first amended complaint in three counts. Count I charged the defendants were guilty of negligence in not maintaining sufficient security on the premises, and in improperly maintaining kerosene heaters on the premises; count II alleged the defendants were liable to plaintiff under the theory of res ipsa loquitur; and count III was predicated on a breach of warranty.

At the close of the plaintiff's evidence, the defendants moved for a directed verdict on all three counts. The trial court directed a verdict of not guilty as to defendants on all three counts. Plaintiff appeals the judgment directing verdicts as to counts I and II. No appeal is taken from the judgment as to count III.

The plaintiff presents four issues on appeal: (1) whether the court erred in directing a verdict as to count II based on res ipsa loquitur; (2) whether the court erred in directing a verdict as to count I alleging negligence; (3) whether the court erred in excluding certain testimony proffered by plaintiff's expert witness; and (4) whether the court improperly considered matters which were not in evidence.

A review of the evidence presented shows that plaintiff, Claudette Dyback, contracted with the defendants, Arthur J. Weber and Francis E. Weber, d/b/a/ Weber Brothers Construction Company, for reconstruction work to her home in Arlington Heights. The house had been damaged by a fire caused by lightning in the summer of 1977. A second fire, which occurred on December 28, 1978, prompted the instant suit.

After the trial court granted the defendants' motion for a directed verdict, the jury was then waived, and the cause proceeded on defendants' counterclaim against plaintiff for payment for work performed up until the time of the fire. The trial court entered judgment in defendants' favor on the counterclaim against plaintiff in the amount of $10,780.72 plus costs. The plaintiff does not appeal the judgment on the counterclaim.

Arthur J. Weber testified as an adverse party under section 2-1102 of the Civil Practice Law. (Ill. Rev. Stat. 1983, ch. 110, par. 2-1102.) Work on the plaintiff's house began in October 1978, and continued on and off two to three days a week until the second fire occurred. The house was unoccupied, and there was no heat. Plaintiff gave the defendants a key to gain entrance to the house, and they were in charge of locking up and securing the residence at the end of each work day. Defendants brought a heater called a "salamander" into the house the latter part of November or the first part of December. The heater was a used one, and had been purchased about a year earlier. It was a tube-shaped heater with a capacity for fuel oil or kerosene of about nine gallons. The heater was moved from room to room during the work, and at the conclusion of each work day was stored in the bedroom behind the living room on the first floor. Defendants also stored their tools overnight in the same bedroom because they would be out of sight there. The heater was filled with fuel oil which the defendants brought to the house.

The fire in question took place at 3 a.m., on Thursday, December 28, 1978. The witness testified that Monday was Christmas, and that he and his brother worked on the house at least one or two days that week. He could not recall for sure if they had been working on the house on Wednesday, but if so it would have been until about noon that day. There were no pilot lights on in the house while they were working there because the gas was not turned on. To his knowledge, no one had broken into the house during the period of time when they were working at the house. He felt there was probably some fuel oil left in the tank before the fire, but he could not recall whether they had used the heater during the last time they worked at the house before the fire. The heater was left on the premises, although it could have been loaded into one of the brother's trucks and unloaded the next time it was needed.

The fire substantially destroyed the house, more so than after the first fire. The heater was still in the back bedroom after the fire. It had a 6-foot cord, and the nearest outlet was 10 to 15 feet away. The witness did not recall either using or unplugging the heater the day before the fire. Only the witness and his brother had control of the heater. The fire burned the rubber tires off the heater. The witness testified at the time he was doing this work, he smoked about a pack and a half of cigarettes a day. While working at the house, he would dispose of cigarettes by trying to flip them out of the window before they were out.

The witness also testified he did not think the key they had for the house fit both the back and the front door, but he could not recall which one it did fit. The only live outlet was in the dining room area and with an extension cord, they could plug the heater in and move it toward the living room. He never saw any evidence of vandalism in the house. He and his brother had nothing to do with getting the furnace that was damaged from the first fire fixed, and the furnace was not operating the day before the fire. The witness testified that not all of the upstairs windows had glass in them.

The plaintiff, Claudette Dyback, testified she purchased the house in 1974 and was the sole owner. Because she was not at the house and the defendants had to get in and out periodically, she gave them a key as they requested. When the contract was signed, it was discussed that the defendants "would have full responsibility of the house until the said house was reconstructed and done and the key turned back over to [plaintiff]."

She visited the house on occasion during the progress of the work. When she saw the house late on the morning of December 28, it was about 90% demolished as a result of the fire. The house was eventually condemned, and she had the house razed.

On cross-examination, plaintiff testified the defendants' work was not to include decorating; i.e., washing the walls, painting. The house had a front and back door, and sliding glass doors in the front. The key she gave the defendants only opened either the front or back door, and it was the only key for that door. She had other keys to doors for the house, but not to the two outside storm doors which locked from inside. There were interior doors inside the storm doors, and she had a key to one of those doors.

A little window in the living room downstairs was not intact after the first fire, and she had requested the defendants to replace it. She was not aware that anybody had tried to break into the house between the first and second fires, nor had she cautioned the defendants to watch out for any such activity. She may have had some things stored in the downstairs office bedroom, but most of the big items had been taken out and put in storage. She told the defendants to lock the house, and take care of it.

On redirect examination, plaintiff testified she did not know the heater was on the premises. During construction while the defendants were there working, she only used the door the defendants had opened to go into the house.

On re-cross-examination, plaintiff testified all the floor coverings on the first floor, such as carpeting, were taken out after the first fire.

James Miller testified as an expert witness for the plaintiff. He reviewed a report prepared by Ken Schultz, an employee of Russell & Associates, as to the investigation of the fire. The report contained a narrative, photographs, and a diagram. He also reviewed the two defendants' and plaintiff's depositions, a forensic chemist's report as to the chemical analysis of samples taken by Schultz, and fire reports from the fire department.

The witness attributed the fire to the fuel oil from the salamander heater. His opinion was based on the fact there was no carpeting or padding on the floor, and bare wood is almost impossible to burn unless something on top of it is burning. The Russell report, photos and narrative indicated heavy charring to the entire area of the living room and a portion of the bedroom. The charring went down at least one-half inch to three-quarters of an inch. That indicated to Miller that something must have been on that surface, burning, to cause such a degree of damage. The fire burned downward, whereas fire normally burns upward.

Miller was asked to explain the difference between his opinion and that of Schultz in the Russell report, whose impression was that the fire was caused or may have been caused by a person or persons unknown. He stated Schultz did not have the benefit of the forensic chemist's report of the analysis of the five samples taken from the house. One taken from the fuel tank of the salamander was identified as a substance similar to fuel oil with a kerosene base. One taken from the attic area showed the presence of naptha, but no accelerants were found on the bedroom floor, living room floor and hallway even though Schultz' report indicated that he detected accelerants in those three areas.

Miller was asked whether the fire would have occurred if the user of the salamander would have used ordinary care in its maintenance and use. The defendants objected to this question, and plaintiff made an offer of proof that Miller would say that the fire would not have occurred had ordinary care been exercised. During argument, plaintiff stated the negligence claimed was that the heater was not taken out of the house each day, and that one of the possible sources of ignition was smoldering cigarettes. Plaintiff was allowed to proceed with questioning of Mr. Miller; counsel asked him what relationship he would draw from the salamander that was on the premises and the fire. Miller noted that the Russell report described the fire trail in the bedroom where the salamander was, and the heavy degree of charring in the living room, and that the photo of the salamander showed its undercarriage and wheels were heavily damaged and distorted and even melted from the high heat. The heavy damage to the living room and bedroom floor and the underside portion of the salamander, coupled with the fact of very little damage above the level of the floor and the heater, caused Miller to attribute the fire to the fuel oil from the salamander. He concluded the oil was from the salamander heater because one of the defendant's depositions indicated the tank was half full and the report from Russell & Associates indicated very little fuel left when he took a sample for the forensic chemist. Miller had no idea what caused the ignition of the fire. He testified a still-lit cigarette would not have been consistent with the type of ignition that could ignite the fuel oil.

He did not attribute the fire to arson, because the report from Russell & Associates and the fire department did not indicate any forcible entry had been made into the residence. Miller was asked what various types of ignition would be sufficient to ignite fuel oil. Miller testified:

"Fuel oil, of kerosene base, normally has to either be heated sufficiently to vaporize to then burn, or to provide a wick of some type through capillary action and then heat applied to that capillary action to kerosene so that the minute particles can vaporize. That's why with the new kerosene heaters they have out now, that's why the kerosene does not burn.

In theory you could put your cigarette out right in kerosene, unless you held it long enough to let it vaporize, you know, but I'm saying if you put it down into kerosene, it will go out. You need a wick basis for it to vaporize to then subsequently burn."

When asked again to state what types of ignitions he has seen that have been sufficient to ignite fuel oil, defendants' objection to the question as immaterial was sustained. Over objection, Miller was allowed to testify that in his opinion the fire would not have occurred had the salamander not been there.

On cross-examination, Miller testified he did not know whether the salamander heater tank leaked. He had no idea how the oil got on the floor but he believed that somehow that oil left the tank, was ignited by some means, and caused the fire.

He formulated his opinion that fuel oil left the tank because one of the defendant's depositions indicated the tank was at least half full, and Schultz' report indicated that when he looked in the salamander there was some fuel in it. Schultz' inspection was done in February of 1979; the fire occurred December 28, 1978.

Plaintiff renewed her request that she be allowed to ask Miller whether the fire would have occurred if the user of the salamander had used ordinary care in its use and maintenance. The request was denied.

Schultz took five samples to be examined by a forensic chemist. Only one of the samples, the one taken directly from the salamander tank, indicated any fuel oil. Another sample taken from the attic showed naptha. The other three samples taken from the hallway leading to the kitchen, the stairway leading upstairs, and from the middle of the living room floor, did not show any accelerant. Miller testified an accelerant is anything that either speeds up a fire or produces a much higher heat. An accelerant is anything flammable, anything of a hydrocarbon base or some other chemical base; naptha and fuel oil both have a hydrocarbon base.

According to Schultz' report, which the witness was relying on, the fire started at the front door in the living room. There was heavy charring upstairs in the attic adjacent to where the evidence of naptha was found, with the fire burning downward, indicating at some point in time there were two separate fires. It was Schultz' opinion that the burn pattern found upstairs in the attic where a hole was burned completely through the floor indicated that a flammable liquid was poured on the floor of the attic.

Miller agreed there was nothing in Schultz' report to indicate that he believed the salamander caused the fire. There was no indication in the report that the salamander leaked. The report indicated it appeared the fire burned on the floor level below the ...

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