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01/27/87 Continental Building v. Union Oil Company of

January 27, 1987





504 N.E.2d 787, 152 Ill. App. 3d 513, 105 Ill. Dec. 502 1987.IL.60

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.


JUSTICE STAMOS delivered the opinion of the court. SCARIANO, P.J., and BILANDIC, J., concur.


Plaintiffs, Continental Building Corporation, Continental Envelope Corporation, and Continental Envelope Corporation of Genoa (Continental), appeal from the circuit court's order dismissing count X of their amended complaint for failure to state a cause of action. Plaintiffs' amended complaint sought to recover damages for extensive damage to their real and personal property caused by a major fire which originated in a warehouse containing defendant's, Union Oil Company of California's (Union Oil), containers of solid and liquid chemicals which were "highly flammable, combustible and explosive."

Plaintiffs were owners of a complex of buildings located at 1301 West 35th Street, Chicago. Stored within that complex were various fixtures and personal property, including large quantities of paper goods owned by Continental. Prior to August 26, 1980, Union Oil arranged to have some of its chemical products stored at an independently owned warehouse located at 3615 South Iron Street, Chicago.

On or about August 26, 1980, a fire broke out at 3615 South Iron Street warehouse facility. The fire quickly spread to an adjacent building located at 3601 South Iron Street and then to Continental's property at 1301 West 35th Street.

Count X alleged that Union Oil was engaged in an ultrahazardous activity by storing highly flammable, combustible, and explosive solid and liquid chemical products in an unsuitable environment. Moreover, the complaint alleged that Union Oil had a duty to assure that such products were placed in safe and suitable storage containers and that Union Oil failed to fulfill this duty. Finally, Continental alleged that as a result of Union Oil's ultrahazardous activity, Continental's property became involved in a fire resulting in damages of $551,932.

Union Oil moved to dismiss count X with prejudice for failure to state a cause of action. After reviewing the briefs submitted by the parties and hearing oral argument, Judge O'Brien granted Union Oil's motion. Continental requested that the court's order be made final and appealable. Judge O'Brien granted Continental's request.

On September 12, 1986, Union Oil filed a motion with this court requesting that the prayer in Continental's reply brief, seeking leave to amend count X to remedy any deficiencies in its allegations, be stricken and denied.

Initially, we address Union Oil's motion to strike Continental's prayer for relief in its reply brief. Supreme Court Rule 303c(2) requires that the notice of appeal specify "the relief sought from the reviewing court." Moreover, a party desiring to file an amended pleading should make it part of the record on appeal. If this is not done, a court of review is not in a position to say that Justice would be done by granting leave to amend. (Hassiepen v. Marcin (1974), 22 Ill. App. 3d 433, 436, 318 N.E.2d 162.) In its notice of appeal, Continental failed to request that this court grant it leave to amend its complaint. Moreover, Continental failed to request such leave in the trial court. In fact, Continental specifically asked the trial Judge to make his order final and appealable. In their reply brief, Continental requested this court allow plaintiffs to amend count X in the event this court should decide to affirm the trial court's decision. We grant Union OIl's motion to strike Continental's prayer to amend count X of its complaint because Continental failed to request such relief at the trial level.

The sole question on appeal is whether the trial court erred in dismissing count X of Continental's complaint alleging that Union Oil's activity of storing flammable substances was an ultrahazardous activity creating liability without fault.

As this court has previously noted, most jurisdictions in this country have adopted the principle of Rylands v. Fletcher (1868), L.R. 3 H.L. 330, and impose strict liability on owners and users of land for harm resulting from abnormally dangerous activities and conditions. (Ruggeri v. Minnesota Mining & Manufacturing Co. (1978), 63 Ill. App. 3d 525, 528-29, 380 N.E.2d 445, citing W. Prosser, Torts sec. 78, at 505 (4th ed. 1971) and Restatement (Second) of Torts sec. 519 (1976).) The "rule" of Rylands is that "the defendant will be liable when he damages another by a thing or activity unduly dangerous and ...

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