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08/29/89 Maria Bernardi, Indiv. and v. Chicago Steel Container

August 29, 1989

MARIA BERNARDI, INDI

v.

AND AS ADM'R FOR THE ESTATE OF MICHAEL P. BERNARDI, PLAINTIFF-APPELLANT,

v.

CHICAGO STEEL CONTAINER CORPORATION ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

543 N.E.2d 1004, 187 Ill. App. 3d 1010, 135 Ill. Dec. 436 1989.IL.1327

Appeal from the Circuit Court of Cook County; the Hon. E.C. Johnson, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO

This is an appeal from a judgment entered on a jury verdict against plaintiff in a wrongful death action. Plaintiff alleges that the trial court erred in (1) allowing two witnesses to testify in violation of the Dead Man's Act (Ill. Rev. Stat. 1985, ch. 110, par. 8-201); (2) submitting to the jury special interrogatories which confused the jury with regard to plaintiff's burden of proof; (3) failing to allow a count alleging negligence under the res ipsa loquitur doctrine or failing to direct a verdict based on that doctrine; and (4) failing to direct a verdict or grant a new trial against the corporate defendant.

Chicago Steel Container Corporation (Chicago Steel) manufactures industrial drums at 1846 South Kilbourne Street in Chicago. Michael Bernardi was an independent contractor retained by Chicago Steel to repair Chicago Steel vehicles. Bernardi repaired Chicago Steel's vehicles "after hours" in Chicago Steel's yard, used his own tools, and decided on his own methods in repairing the vehicles.

On November 26, 1981, Bernardi was working on a vehicle in Chicago Steel's yard. Bernardi was accompanied by Roger Mollenhour (Mollenhour) and Mollenhour's 10-year-old son. Mollenhour was sitting in the driver's seat of the vehicle, while Bernardi was "priming" the engine by pouring gasoline into the carburetor. The engine compartment of the vehicle caught fire and Bernardi was fatally burned.

Plaintiff filed suit against Mollenhour and Chicago Steel. Plaintiff charged that Mollenhour negligently caused the death of Michael Bernardi by prematurely starting the vehicle's engine while Bernardi was priming the carburetor. Plaintiff charged that defendant Chicago Steel was negligent in failing to provide working fire extinguishers in its yard where vehicles were repaired. Before trial, plaintiff filed a motion for leave to amend her complaint in order to add a count alleging that Mollenhour was negligent under the theory of res ipsa loquitur. That motion was denied on the ground that Mollenhour did not have exclusive control over the instrumentality that caused Bernardi's injury.

At the trial, Bernardi's daughter testified that after the occurrence on November 26, 1981, Mollenhour admitted that he had made "a mistake" by "start[ing] the engine too soon." According to Bernardi's daughter, Mollenhour also stated that he did not "think [he] waited for the signal" and did not "remember if [Bernardi] gave [him] the signal." Bernardi's son testified that after the occurrence, Mollenhour admitted that "it was [his] fault that it happened." According to Bernardi's son, Mollenhour stated that he felt "guilty" and that he was "not sure whether [he] heard the signal or notbut started [the engine] at the wrong time." Five other witnesses, all friends of the Bernardi family, gave similar testimony.

Tom Mollenhour, defendant's son, testified that he was present at the time of the occurrence on November 26, 1981. Tom was 10 years old at the time of the occurrence and 15 years old at the time of the trial. According to Tom, Bernardi told Mollenhour that he was going to prime the carburetor and that he would tell him when to start the vehicle. Bernardi had a two-pound coffee can half full with gasoline. He instructed Mollenhour in the manner of starting the vehicle, then went to the passenger's side, leaned over the engine, tilted the can for three or four seconds, straightened up with the can in his hand and, finally, told Mollenhour to try starting the vehicle. Flames then came out of the vehicle and engulfed Bernardi. Mollenhour pushed Bernardi down, rolled him over in an attempt to extinguish the fire, and then ran into Chicago Steel's building to get a fire extinguisher. Plaintiff objected to Tom's testimony on the ground that it violated the Dead Man's Act (Ill. Rev. Stat. 1985, ch. 110, par. 8-201).

Mollenhour conceded that he spoke with plaintiff's witnesses after the accident and told them that the accident was "his fault." However, Mollenhour testified that he never stated to any of plaintiff's witnesses that he started the engine before a signal was given or before Bernardi was through pouring the gasoline. For example, Mollenhour testified that he told Bernardi's son that he started the engine when he was told to do so.

The trial court did not permit Mollenhour to testify to events which occurred in the presence of Bernardi. Rather, Mollenhour was permitted only to explain or deny his conversations with plaintiff's witnesses. The trial court stated: "This is a very close question of whether or not he is going to be able to testify. What happened at the scene as compared to what his responses were relative to alleged admissions, that's all he's trying to deal with." Plaintiff's attorney then stated: "Again I think he has a right to explain them and deny them but not to get into what happened." The only objections made thereafter by plaintiff concerning Mollenhour's testimony were objections to leading questions and inadequate foundations.

In regard to plaintiff's case against Chicago Steel, Bernardi's daughter testified that Mollenhour told her after the occurrence that he found a fire extinguisher on Chicago Steel's premises, but that it "broke" when he "tried to pull the pin out." Otto Sorino, a vice-president at Chicago Steel, testified that he had placed a fire extinguisher in the yard outside the Chicago Steel plant some time after 1971, but that it had been stolen prior to November 1981 and never replaced.

Sorini also testified that fire extinguishers were placed throughout the Chicago Steel building in accordance with Chicago fire department regulations. Sorini testified that his earlier decision to put a fire extinguisher in the yard was "strictly a personal decision."

Louis Trilla of Chicago Steel testified that Chicago Steel had 22 fire extinguishers in its building placed in accordance with Chicago fire department regulations. According to Trilla, the fire department inspected Chicago Steel's premises annually and had never issued a citation. Trilla stated that the last inspection prior to November 26, 1981, was in August or September of 1981.

Consistent with Trilla's testimony, Lieutenant Harry Benson of the Chicago fire department searched Chicago Steel's records and found no citations against Chicago Steel. Benson testified that a Municipal Code violation could occur without a report of any violation being made and that there was a Municipal Code requirement that outdoor fire retardant materials be present at locations where wood is stored or where gasoline is distributed or stored. Apparently, wood pallets and full and empty paint cans were present in the Chicago Steel yard, but the paint was noncombustible.

Mollenhour testified that he ran into Chicago Steel's main building after Bernardi caught fire and found a fire extinguisher on a post located about five feet from the entrance. That extinguisher was about 80 feet from the point where Mollenhour first ran in search of a fire extinguisher. One to three minutes had elapsed before Mollenhour found the fire extinguisher. Mollenhour ...


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