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Dyback v. Weber





Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. Lawrence D. Inglis, Judge, presiding.


Rehearing denied December 1, 1986.

Claudette Dyback, the plaintiff, filed suit in the circuit court of Lake County against Arthur J. Weber and Francis E. Weber, d/b/a Weber Construction Company, following a fire that damaged her home. She alleged that the fire was caused by the negligence of the defendants in leaving a fuel-oil heater on the premises where they were making repairs and, alternatively, in a second count that the defendants were liable under the doctrine of res ipsa loquitur. The third count of the complaint alleged that the defendants had failed to perform repairs in a good and workmanlike manner. The trial judge, at the close of the plaintiff's case, directed a verdict in favor of the defendants on all counts under Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494. The appellate court, with one justice dissenting, affirmed the trial judge's action on the negligence count and reversed on the res ipsa loquitur count. (134 Ill. App.3d 426.) No appeal was taken by the plaintiff on count III. We allowed the defendants' petition for leave to appeal (103 Ill.2d R. 315).

The plaintiff hired the defendants, who are in the home-construction business, to make repairs on her home in Prospect Heights, after it had been damaged extensively in a fire caused by lightning. The second fire, which is the basis of this lawsuit, occurred about 3 a.m. on December 28, 1978. This second fire caused even greater damage than the previous one, and eventually the house was razed.

The plaintiff's house was unoccupied while it was being restored by the defendants and had only limited electrical service and was without gas service. The defendants used a portable tubed-shaped "salamander" fuel-oil heater in the area where they were working. One of the defendants, Arthur J. Weber, who was called as an adverse witness under section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1102), testified that only one electrical outlet, located in the dining room on the first floor of the house, was working. He and Francis, his brother, would plug the heater into the live outlet and, using an extension cord, were able to move the heater from room to room. The Webers used fuel-oil cans to fill the nine-gallon heater but did not leave the cans on the premises. The Webers were at the house on December 27, 1978, the day before the fire, but had not used the heater that day because they worked only about one hour. Weber could not recall if he or his brother had unplugged the heater the last day they had used it but said it had been moved to the back bedroom on the first floor after working hours so that it could not be seen through windows in the front of the house. The evidence showed that the defendants used a set of keys provided by the plaintiff, who had instructed them to lock the house when leaving.

The record shows that after the second fire the plaintiff hired Russell & Associates to investigate the fire. Ken Schultz of the firm, after detecting the odor of accelerants in the house, took four samples of substance found on the floors and one sample from the heater. A chemical analysis of the samples indicated the presence of naphtha, an accelerant, in the attic and of a fuel oil in the sample taken from the heater in the bedroom. No other accelerants were present in the three other samples taken from areas of the first floor. Schultz observed in his report, however, that the burn pattern he found on the first floor of the residence led from the front door to the bedroom and kitchen. He concluded that the fire had been set by some unknown person.

James Miller, a licensed public adjustor, testified as an expert for the plaintiff. He was qualified as an expert on causes and origins of fires and the valuation of losses produced by fires. Miller had inspected the plaintiff's house only in January 1980, more than a year after the second fire. His inspection was conducted solely from the exterior of the house. Although he conceded that he did not know the cause of the fire, he stated his opinion that the fire would not have occurred if the heater had not been on the premises. He also said, based on Schultz' report, that there were two separate and simultaneous fires, one in the attic and the other on the first floor. Miller also gave the opinion that the fire did not originate in the room in which the heater was located. Miller theorized that the reason the chemical analysis of the three floor samples taken by Schultz did not indicate the presence of accelerants was because the fuel oil had burned about 99.9 percent pure, leaving no hydrocarbon residue behind that would be detected in a chemical analysis. Miller concluded that the fire was not caused by arson because there was no indication of a forcible entry into the house. In reaching his opinions, he relied extensively on the investigation of Schultz, who died during the pendency of the lawsuit. He referred, too, to an investigation by the local fire department conducted almost immediately following the fire. That report concluded that the heater was not the cause of the fire because it was not plugged into the electrical outlet, and that the fire did not originate in the bedroom where the heater was located.

The plaintiff's complaint of negligence was grounded solely on the defendants' bringing the heater to the house and leaving it there, rather than removing it at the end of each workday. The plaintiff showed that the heater could have been moved by one person with little difficulty.

At the conclusion of the plaintiff's case, the trial court granted the defendants' motion for a directed verdict on all counts. The court stated that the opinion of the plaintiff's expert was based on guess and conjecture and held that the simple leaving of the heater in the house did not constitute negligence.

The appellate court in its opinion, though the question had not been raised in the trial of this case, stated that one of the elements for invoking the res ipsa loquitur doctrine has been abrogated by this court's adoption of pure comparative negligence in Alvis v. Ribar (1981), 85 Ill.2d 1. Although addressing the question is not necessary under the disposition we make here, it seems appropriate and important to consider the question in the light of differing appellate court decisions on the issue. The res ipsa loquitur doctrine permits the trier of fact to infer negligence based on circumstantial evidence, and in our State the doctrine traditionally had required the plaintiff to demonstrate three elements: (1) that the occurrence is one that ordinarily would not happen in the absence of negligence; (2) that the defendant had exclusive control of the instrumentality that caused the event; and (3) that the occurrence was not caused by the plaintiff's own negligent acts or omissions. (Spidle v. Steward (1980), 79 Ill.2d 1.) Since this court's adoption of comparative negligence, the appellate court, in the fifth and first districts, has held that the element concerning plaintiff's freedom from negligence no longer need be proved because that proof is not required in other negligence actions by virtue of our holding in Alvis. (Daniels v. Standard Oil Realty Corp. (1st Dist. 1986), 145 Ill. App.3d 363, 368; Mileur v. Briggerman (5th Dist. 1982), 110 Ill. App.3d 721.) Two other recent appellate court cases included without discussion of the question the third element as a requirement under the doctrine. Imig v. Beck (4th Dist. 1985), 137 Ill. App.3d 631, and Curtis v. Goldenstein (3d Dist. 1984), 125 Ill. App.3d 562.

We consider that the appellate court here correctly concluded that a plaintiff's freedom from contributory negligence should no longer be a requirement in order to make out a prima facie case under the doctrine. At least five other comparative fault jurisdictions have considered the question and have decided that proof of a plaintiff's freedom from negligence is no longer required under res ipsa loquitur. (See Tipton v. Texaco, Inc. (1985), 103 N.M. 689, 712 P.2d 1351; Cyr v. Green Mountain Power Corp. (1984), 145 Vt. 231, 485 A.2d 1265; Montgomery Elevator Co. v. Gordon (Colo. 1980), 619 P.2d 66; Turk v. H.C. Prange Co. (1963), 18 Wis.2d 547, 119 N.W.2d 365.) One of these jurisdictions — New Mexico — has a pure form of the comparative negligence, as we adopted in Alvis, while the other four States operate under a modified form of the comparative fault doctrine. The jurisdictions that operate under a modified comparative fault doctrine, of course, bar recovery on negligence claims, and also now under res ipsa loquitur claims, where the plaintiff is found more than 50% negligent. In addressing the effect of pure comparative fault principles on res ipsa loquitur, the Supreme Court of New Mexico stated that "[t]he mere existence of concurrent negligence does not preclude a particular finding of negligence of one or more tortfeasors through reliance on the res ipsa loquitur doctrine. Otherwise, `we would effectively erect a complete bar to recovery in cases where a plaintiff must rely on res ipsa loquitur to establish a prima facie case of negligence. * * * Such a result would be in direct contravention of the concept of comparative negligence.'" Tipton v. Texaco, Inc. (1985), 103 N.M. 689, 697, 712 P.2d 1351, 1359, quoting Montgomery Elevator Co. v. Gordon (Colo. 1980), 619 P.2d 66, 70.

The defendants argue that, since the plaintiff in a res ipsa loquitur situation is given the benefit of an inference of general negligence, it is appropriate to continue requiring the plaintiff to show his freedom from negligence. They argue that the doctrine, founded on an inference of general negligence, differs so significantly from specific negligence cases that comparative fault should not apply to the former. We disagree because "[t]he analysis, from the viewpoint of comparative negligence, focuses on whether a `defendant's inferred negligence was, more probably than not, a cause of the injury * * * though [the] plaintiff's [or third party's] negligent acts or omissions may also have contributed to the injury'" Tipton v. Texaco, Inc. (1985), 103 N.M. 689, 697, 712 P.2d 1351, 1359, quoting Montgomery Elevator Co. v. Gordon (Colo. 1980), 619 P.2d 66, 70.

Since this court has extended the principle of comparative negligence to other areas (Coney v. J.L.G. Industries (1983), 97 Ill.2d 104 (products liability)), there has been scholarly comment that it is logical that those principles should apply to the res ipsa loquitur doctrine. (Polelle & Ottley, Illinois Tort Law 429 (1984); see also W. Prosser & W. Keeton, Torts sec. 39, at 254 (5th ed. 1984) ("[T]he advent of comparative fault should logically eliminate this element [plaintiff's freedom from negligence] from the doctrine, unless the plaintiff's negligence would appear to be the sole proximate cause of the event, since comparative fault by its nature converts the plaintiff's contributing fault from its traditional function of barring liability into one of merely reducing damages").) This extension of comparative fault principles to res ipsa loquitur cases is consistent with our recent decision in Casey v. Baseden (1986), 111 Ill.2d 341. We held there that a plaintiff in a comparative negligence case does not carry the burden of proving his freedom from negligence because "both logic and fairness dictate that the defendant, who stands to ...

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