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07/14/88 James P. Graves Et Al., v. Armand Daley

July 14, 1988

JAMES P. GRAVES ET AL., PLAINTIFFS-APPELLANTS

v.

ARMAND DALEY, INDIV. AND D/B/A DALEY'S APPLIANCE, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

526 N.E.2d 679, 172 Ill. App. 3d 35, 122 Ill. Dec. 420 1988.IL.1105

Appeal from the Circuit Court of Knox County; the Hon. Stephen G. Evans, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE STOUDER delivered the opinion of the court. WOMBACHER, J., concurs. JUSTICE HEIPLE, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

The plaintiffs, James and Joyce Graves, bring this action to recover damages resulting from a fire which destroyed the plaintiffs' home. The plaintiffs argue that the fire was caused by a defective condition in the furnace located in the basement of the home. The complaint is premised upon the theories of strict products liability and negligence and names as defendants Heil-Quaker Corporation, the manufacturer of the furnace, Armand Daley individually, and Daley's Appliance, the seller and installer of the furnace.

Western States Insurance Company (Western States) was named as the plaintiffs' insurance carrier and their subrogee. The trial court found that Western States was the real party in interest. Following the fire, Western State's expert inspected the premises and prepared a report stating that a defective condition in the furnace was the probable cause of the fire. The Graves were then paid by Western States and wanted to clear away the debris and rebuild their home. Western States then gave the plaintiffs permission to dispose of the furnace.

This suit was filed about five months later, and during discovery, Heil-Quaker requested that the plaintiffs produce the furnace for inspection. The plaintiffs responded that the furnace was unavailable. Heil-Quaker then moved for sanctions, requesting that the trial court dismiss the lawsuit or, in the alternative, bar the plaintiffs from introducing any evidence concerning the condition of the furnace. After a hearing on the defendant's motion, the trial court entered an order barring the plaintiffs from presenting any evidence regarding the condition of the furnace. Plaintiffs' motion to reconsider was denied, and the defendants then moved for summary judgment. The motion was granted, and this appeal followed.

On appeal the plaintiffs argue that the trial court abused its discretion in granting the defendant's motion for sanctions and barring the plaintiffs from presenting any evidence regarding the defective condition of the furnace.

Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)) provides that courts may, upon motion, enter sanctions against a party for unreasonably refusing to comply with discovery requests. The imposition of discovery sanctions pursuant to Supreme Court Rule 219 (107 Ill. 2d R. 219) rests largely in the discretion of the trial court and will not be disturbed upon review unless that discretion had been abused. Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 473 N.E.2d 444.

In the present case, the plaintiffs' home was destroyed by fire on December 28, 1983. Shortly after the fire a number of investigations were conducted to determine the cause of the fire. Included in these investigations were examinations by special agents of the Illinois Division of Arson Investigation and Donald Miller, of Effective Engineering. Effective Engineering and Donald Miller were engaged by Western States. The special agents concluded that the fire was incendiary and that a flammable liquid was used. Donald Miller's investigation included a thorough examination of the furnace and a number of photographs. Miller concluded that the furnace in general, and the heat recovery device in particular, experienced very high temperatures and that a tube in the heat recovery device was disconnected, which resulted in the fire.

Approximately three to four months after the fire, and after Miller had prepared his report implicating the furnace, Western States told Mr. and Mrs. Graves that they could dispose of the furnace. The Graves followed Western States' direction and destroyed the furnace.

This suit was filed approximately five months later, on November 14, 1985. The trial court found that Western States was the real party in interest. The trial court granted the defendant's motion for sanctions which sought to bar the plaintiffs from presenting any evidence concerning the furnace.

The trial court's decision was correct. Examining the record, the trial court could have and did determine that Western States permitted the furnace to be destroyed after a decision was made to claim that ...


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