APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
515 N.E.2d 728, 161 Ill. App. 3d 891, 113 Ill. Dec. 743
Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding. 1987.IL.1453
PRESIDING JUSTICE SCARIANO delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
This action was brought in four counts by plaintiff Barbara Siebert, as administratrix of the estate of Robert W. Siebert (Siebert), against several defendants, including Conoco, Inc., formerly Continental Oil Company (Conoco), for Siebert's alleged wrongful death, which occurred on January 24, 1979. On August 26, 1986, the trial court awarded summary judgment on the third and fourth counts as to Conoco, which served to dismiss it from the action, and made a specific finding of finality pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)). On September 24, 1986, plaintiff moved to vacate the judgment and for leave to file a fourth amended complaint and certain affidavits of Barbara Siebert and Robert Siebert, Jr., but both motions were denied by the trial court. The plaintiff appeals the aforesaid order. The other defendants are not parties to this appeal.
From the early 1960s until his death, Siebert managed a gasoline service station in Evergreen Park, Illinois (hereinafter referred to as Fas Gas), for Conoco. In February 1976 Conoco converted the facility from a full-service station to a self-service operation. At that time, it designed and reconstructed the building itself, an important part of which conversion consisted of its installing six Tolkheim gasoline pumps. Approximately six months prior to Siebert's death, Alan Brevitz, an employee of Conoco and district supervisor of Fas Gas for the Chicago area, whose duties included the making of monthly safety inspections of his employer's service stations, replaced the number 6 dispenser at the Fas Gas station. The last inspection he conducted at the Evergreen Park facility before the incident was in December 1978, at which time he detected no safety violations.
On January 1, 1979, Conoco entered into a lease arrangement with Kayo Oil Company (Kayo), a subsidiary of Conoco, whereby Kayo took over the operation and control of the Fas Gas station, and also at which time Siebert and other Conoco employees became employees of Kayo.
On January 24, 1979, while in the course of his employment with Kayo, Siebert became soaked with gasoline as a result of a tear in the number 6 dispenser hose at its point of connection with the dispensing unit. Thereupon he apparently entered the bathroom to remove his gasoline-drenched clothes, during which time a fire started somehow and burned Siebert over most of his body. He died shortly thereafter.
Accordingly to the plaintiff's expert witness, Marvin Salzenstein, who examined the gasoline hose in question, the defect consisted of a split which was hidden by a coupling on the hose in such a way that an individual examining it would have been unable to visually discover the tear. Salzenstein and Conoco's expert theorized in their depositions as to how the fire was ignited and reached different Conclusions. Salzenstein stated that he believed that ignition was caused either by the exhaust fan in the bathroom or by static electricity created when Siebert was removing his gasoline-soaked clothes. John Hojek, chief of the Evergreen Park fire department, opined that Siebert ignited the fire by attempting to light a cigarette with his butane lighter.
The third count of the third amended complaint sounds in negligence and alleges that Conoco owned and operated Fas Gas and was
"careless or negligent in one or more of the following ways:
(a) Failed to maintain fire extinguishers when they knew or should have known that fire was likely to occur, in violation of Ill. Rev. Stat., Ch. 127 1/2, sec. 9; Ill. Administrative Code, Ch. I, secs. 170.145(b), 170.150(d)(8);
(b) Failed to install automatic fire extinguishing or sprinkler equipment when they knew or should have known ...