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07/25/89 Robert Deyoung Et Al., v. Alpha Construction Company

July 25, 1989

MILDRED DEYOUNG, DECEASED, ET AL., PLAINTIFFS-APPELLEES

v.

ALPHA CONSTRUCTION COMPANY, DEFENDANT-APPELLANT AND CROSS-PLAINTIFF-APPELLANT (NORTHERN ILLINOIS GAS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

ROBERT DeYOUNG et al., Special Adm'rs of the Estate of

Company, Defendant and Cross-Defendant-Appellee)

542 N.E.2d 859, 186 Ill. App. 3d 758, 134 Ill. Dec. 513 1989.IL.1144

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Bosco, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. HARTMAN and DiVITO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

In this action Virginia Cockerham sued for her injuries and the estate of Mildred DeYoung sued for her death and for property damage as a result of an explosion occurring at the DeYoung home. In turn, Alpha Construction Company (Alpha) filed a contribution claim against Northern Illinois Gas Company (NIGas). The jury returned a verdict for plaintiffs, awarding them $4,224,694.89, and found Alpha 100% liable. Alpha appeals, raising the following issues: (1) whether the jury verdict is against the manifest weight of the evidence; (2) whether the trial court erred in making certain evidentiary rulings; (3) whether Martin DeYoung's sobs during trial denied Alpha a fair trial; (4) whether NIGas' counsel's statements during closing argument denied Alpha a fair trial; and (5) whether the jury was properly instructed.

On March 13, 1986, Alpha, pursuant to its contract with the State of Illinois, was installing new water main lines along U.S. Route 30, also known as 14th Street, in Chicago Heights, Illinois. Route 30 is an east-west thoroughfare, and the DeYoung home, located at 204 West 14th Street, is on the south side of the highway. Prior to March 13, 1986, a NIGas employee had come to the site of the proposed trenches and located underground gas service lines that would cross the trench, marking the surface of the road with a yellow strip of paint. Many of the houses along Route 30 had two gas service lines: a "live" or new gas line and an old line which no longer had any gas running through it.

The Alpha crew began digging a trench one block east of the driveway at 204 West 14th Street and worked in a westerly direction, using a backhoe. As they approached the yellow strip in front of the DeYoung house, but while still east of that line, they found a gas service line. In accordance with its contract with the State, Alpha was required to "hand dig" when digging in proximity to underground gas service lines; however, because frost and asphalt formed the surface of the road, they used a backhoe to "scratch" the surface, and then dug down to 2 1/2 to 3 feet to locate the service line. After exposing the first line, the backhoe then "scratched" the surface 1 1/2 to 3 1/2 feet west of the first line, and, in so doing, snagged and bent another gas line. This second gas service line, which lay directly beneath the painted strip, was the live line to the DeYoung house. Alpha's foreman, Gerald Finnan, testified that the gas line was 18 to 20 inches below the surface of the road; however, a NIGas employee testified that the line was 30 to 32 inches deep.

Finnan immediately contacted the Alpha office at 7:35 a.m., giving the location as "Route 30 and Garden," an intersection one half block or approximately 130 feet from the location of the bent service line. The Alpha office contacted NIGas at 7:37 a.m., while Alpha's crew continued digging the trench around the bent service line, breaking the water service line and the old gas service line.

The first NIGas crew to arrive at the scene had learned of the problem through the 7:37 a.m. phone call from Alpha, at which time they were told that it was a damaged main line instead of a damaged service line. They arrived at the scene at 7:48 a.m., but, because there was no one to direct them, they first walked to the north side of Route 30 and had to wait for heavy traffic to pass before crossing back to the south side of the street. Two NIGas crew members were walking toward the DeYoung house to turn off the gas and to warn its occupants when the house exploded. Mildred DeYoung was killed and her daughter, Virginia Cockerham, was injured in the explosion and subsequent fire.

The State Fire Marshal testified that it was his determination that the gas pipe had separated at a compression fitting approximately 30 inches from the DeYoungs' gas meter, that gas had consequently flowed out from the pipe underground and had seeped into the foundation of the house and ignited, and that the explosion occurred in the basement. The Fire Marshal also stated that a furnace or hot water heater may have been the source of ignition, although, in his opinion, it was most likely a sump pump; however, Martin DeYoung testified that there was no sump pump.

The jury returned a verdict for plaintiff, and, on Alpha's contribution claim against NIGas, assessed 100% of the damages against Alpha. The jury awarded $97,663 in property damage, $533,032 to Virginia Cockerham, and $3,600,000 to Mildred DeYoung's husband and children. The trial Judge denied Alpha's post-trial motion, and this appeal followed.

Alpha first argues that the jury's verdict as to liability was against the manifest weight of the evidence and that the damage award is "highly excessive and must shock the conscience of the court.", Plaintiffs claimed that Alpha was negligent in:

(a) failing to "hand dig" in the vicinity of a marked, live gas line;

(b) failing to properly ascertain the location of the live gas service line before excavating with a backhoe;

(c) failing to require "hand digging" when excavating work was being done in proximity to a ...


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