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06/01/87 Dealers Service & Supply v. St. Louis National

June 1, 1987

DEALERS SERVICE & SUPPLY COMPANY, PLAINTIFF-APPELLANT

v.

ST. LOUIS NATIONAL STOCKYARDS COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

508 N.E.2d 1241, 155 Ill. App. 3d 1075, 108 Ill. Dec. 664 1987.IL.728

Appeal from the Circuit Court of St. Clair County; the Hon. Stephen M. Kernan, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. KARNS, P.J.,1 and HARRISON, J., concur.

.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Plaintiff, Dealers Service & Supply Company, appeals from an order entered by the circuit court of St. Clair County granting summary judgment in favor of defendant, St. Louis National Stockyards Company, pursuant to section 2-1005 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005). We reverse and remand.

Plaintiff's second amended complaint, which is the pleading upon which defendant's motion for summary judgment was based, was not verified and was executed by plaintiff's attorney. It consisted of one count and alleged the following: that plaintiff was the owner of real estate in East St. Louis, Illinois, improved with a building; that defendant owned real estate adjacent to plaintiff's property; and that defendant negligently and carelessly maintained defendant's property so as to create a condition hazardous to plaintiff's property because of the threat of fire. Specifically, plaintiff alleged: that defendant failed to cut and remove weeds, in violation of a city ordinance; that defendant used, and permitted others to use, defendant's property as a dumping ground for combustible materials; that defendant failed to prevent the dumping of material and growth of weeds; and that defendant was aware of open fires on its property prior to November 21, 1976, yet failed to protect against recurring fires and failed to warn plaintiff of the hazardous condition. The complaint further alleged that as a direct and proximate result of defendant's negligence, a fire occurred on November 21, 1976, on defendant's property, spread to plaintiff's property, and caused damages to plaintiff's real and personal property.

Defendant filed an unverified answer, executed by its attorney, denying generally the allegations of plaintiff's complaint. The defendant also filed a motion for summary judgment, likewise executed by its attorney, asserting that (1) the fire occurred without any negligence on its part; (2) a city ordinance relied upon in part by plaintiff was not applicable; and (3) the ordinance did not impose a duty on defendant toward plaintiff because the ordinance was not intended to protect against the occurrences alleged in plaintiff's complaint. Defendant's motion was not supported by affidavit but did incorporate by reference various discovery depositions which have been taken in this cause.

Defendant's answers to interrogatories and the deposition testimony disclose the following facts: plaintiff's property consisted of a lot improved with a warehouse at the northeast corner of First Avenue and Pennsylvania Avenue in East St. Louis, Illinois. The property is near the Mississippi River and southwest of the city's border with National City. Defendant "operates" its own city, National City, and has its own post office, National City Stockyards, Illinois. Defendant's vice-president admitted that defendant also owns vacant land adjacent to and "principally" west of plaintiff's property. The precise location of defendant's property in relation to plaintiff's property is not clear from the record.

The deposition testimony indicates further that the general area west of plaintiff's property was vacant but full of high weeds and tall sunflowers. East St. Louis firemen testified that on the day of the fire the weeds in the area were high, conditions were dry and the wind was strong. Although the cause of the fire has not been established, firemen testified that the fire started somewhere in the weeds west of plaintiff's property and spread to plaintiff's building, aided by a wind from the west.

The evidence also indicates that defendant had given permission to a local business, Lee's Wash Rack, to dump manure, hay, and straw from livestock trucks onto defendant's property in an area to the west of plaintiff's lot. This use was continuous during the five-year period prior to the fire. Unknown parties also dumped trash and refuse in this general area. Firemen and local business owners and employees further testified that there were previous trash fires and weed fires on the vacant land in this general area, one such fire occurring on Friday, November 19, 1976, two days before the fire which damaged plaintiff's building. One witness suggested that the Friday fire might have rekindled, resulting in Sunday's fire. There are also references to railroad tracks and hoboes in this general area.

Defendant's vice-president testified that defendant had not assigned anyone to supervise the vacant land, that defendant had no system of maintenance for the property, and that defendant had never cut the weeds on its land. Defendant's president testified similarly that there was no upkeep or maintenance on the land. He stated that he did not know which lots defendant owned, nor did he know of any ordinances regulating the condition of the property. Defendant's answers to interrogatories stated that defendant was aware that unknown persons were dumping refuse on defendant's property.

It is well established that a motion for summary judgment should be granted only when the pleadings, depositions, admissions, and affidavits establish that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Ill. Rev. Stat. 1985, ch. 110, par. ...


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