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Chem-pac, Inc. v. Simborg





Appeal from the Circuit Court of Cook County; the Hon. James S. Quinlan, Judge, presiding.


Plaintiff, Chem-Pac, Inc., brought an action against defendants Sheldon Simborg, Philip Simborg, and Milton Levenberg, d/b/a Bishop Properties, to recover damages sustained in a fire. A jury returned a verdict for the plaintiff.

In November 1972, defendants acquired title to approximately one square block of industrial real estate on the southwest side of Chicago. Five large buildings and several smaller ones made up this complex. Obsolescence and the relocation of industry resulted in increased vacancy and reduced maintenance of the properties.

Two of the buildings are involved in this case. A 27,000-square-foot brick building located on the northwest corner of 76th and Bishop streets was leased to and occupied by the plaintiff. This will be referred to as the "smaller building." The other building, the "larger building," was located immediately to the west and shared a fire wall with the smaller building. The larger building occupied approximately 44,000 square feet. It was vacant and was not rented. Both buildings shared one common roof in addition to the party wall.

On March 10, 1976, a fire began in the larger building and spread to the smaller one, resulting in damage to the smaller building and its contents. The dispute between the parties is over who had control of the larger building and who had the responsibility to secure the premises.

When the parties first entered into the lease in March 1973, plaintiff leased the smaller building "as is." The property was basically a shell with a sound structure but without plumbing, heating, or electricity. Plaintiff improved the building and brought it into compliance with the city's building code. In an effort to secure the building from vagrants and vandals, plaintiff also leased the larger building for a year. When plaintiff discovered that it could not secure the larger building, it did not renew the lease, which expired October 31, 1975, some five months before the fire.

In December 1975, after the lease expired, the larger building was cited for code violations. Defendants were notified of the violations and were ordered to tuck-point the walls, make the walls safe, replace or repair broken windows, and make all the necessary repairs or tear down the building. Defendants did not appear in court to respond to the violations.

On March 20, 1976, a fire began in the larger building. The fire spread to and destroyed the smaller building occupied by plaintiff. An inspection conducted by the city of Chicago fire department showed that the fire broke through to the smaller building at the fire wall. Fire officials also concluded that the fire was started by either vagrants or vandals, who used an accelerant like gasoline or kerosene.

Plaintiff filed a two-count complaint on March 3, 1977. Count I was a general negligence action in which plaintiff alleged that defendants breached their duty to maintain, supervise, and secure the larger building. Count II realleged the essential allegations under a res ipsa loquitur theory — that defendants had the "sole and exclusive care, custody, and control of the premises."

Trial ensued, and a jury found the loss sustained by plaintiff to be $228,597. It also found plaintiff to have been 15% negligent, and judgment for $194,307.45 was entered. Defendants appeal, alleging that: (1) the trial court improperly instructed the jury on res ipsa loquitur; and (2) the court erred in ruling that Chem-Pac was the proper party plaintiff; that Joseph Ray Manz was qualified to testify concerning damages; and that defendants could not introduce evidence of their insurance status. Plaintiff filed a cross-appeal, claiming that the court erred in denying its motion to recover costs.


Defendants allege that the trial court erred in instructing the jury on res ipsa loquitur. They contend that the instruction was inapplicable because plaintiff had access to the larger building, thereby negating the element of "control" necessary for recovery under this theory. Defendants argued that plaintiff left material in the larger building after it terminated the lease, retained keys to the building, and had access to a boiler room. Defendants also claim that because plaintiff was found to be 15% negligent, defendants could not have had the requisite control over the building.

• 1 Defendants' argument must fail, however, because there was sufficient evidence to support the verdict on general negligence grounds. Section 2-1201(d) of the Code of Civil Procedure states that a verdict will not be set aside if any ground of recovery is sufficient to sustain the verdict. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1201(d).) Here, the evidence was sufficient for the jury to find that defendants' negligence was the proximate cause of the fire. Defendants had notice that vagrants or transients had access to the larger building because empty wine bottles and cigarette butts were often found; yet, defendants did nothing to secure the building. They did not post a watchman to guard the building as required by city ordinance. (Chicago Municipal Code sec. 39-13.) Defendants also did not appear in court after they were notified of building-code violations, nor did they remedy any of the violations. Battalion Chief Joseph Taylor of the city of Chicago fire department testified that the fire could have been prevented by proper maintenance and security, so the fire can be traced directly to defendants' negligence. As owners of record, defendants could not delegate their duty to maintain the property to plaintiff, a lessee who had no contractual or common law duty to maintain the building.

Because of our finding that the evidence supports the verdict on general negligence grounds, we need not decide whether the res ipsa loquitur instruction was proper. See Sandburg-Schiller v. Rosello (1983), 119 Ill. App.3d 318, ...

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