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11/30/89 Sarah Jane Mcguckin, Indiv v. Chicago Union Station

November 30, 1989

SARAH JANE MCGUCKIN, INDI

v.

AND AS EX'R OF THE ESTATE OF WILLIAM J. MCGUCKIN, DECEASED, PLAINTIFF-APPELLEE,

v.

CHICAGO UNION STATION, ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

(Consolidated Rail Corporation, Defendant-Appellee)

548 N.E.2d 461, 191 Ill. App. 3d 982, 139 Ill. Dec. 76 1989.IL.1842

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Janczy, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and McMORROW, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

After a jury trial, defendants, City of Chicago (hereinafter the City) and Chicago Union Station (hereinafter Union Station), were found liable for the death of William J. McGuckin. Defendants appeal from the judgment of the circuit court of Cook County that apportioned liability at 60% against the City and 40% against Union Station. The major issue raised on review by the City is whether the trial court erred in finding that the City owed a duty to decedent. The other issue raised by the City is whether the trial court erred by allowing the jury to determine if a "special duty" existed without instructing the jury as to the necessary elements of that duty. On appeal, Union Station questions whether (1) the jury verdicts in favor of Consolidated Rail Corporation and against it are inconsistent; (2) the verdict against it (Union Station) was against the manifest weight of the evidence; (3) the trial court erred by imposing the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 5-101 et seq.) as a bar to its third-party complaint for contribution from the City; (4) there was sufficient evidence based upon a theory of res ipsa loquitur to support a denial of its motion for a directed verdict; and (5) the trial court abused its discretion by allowing plaintiff's expert witnesses to testify.

We affirm in part and reverse in part.

Plaintiff's decedent, William J. McGuckin, was an employee of Consolidated Rail Corporation (hereinafter Conrail). Union Station leased space in its building to Conrail. On July 26, 1980, a fire occurred at Union Station and McGuckin died from smoke inhalation. On July 27, 1981, plaintiff filed a five-count complaint seeking $1,500,000 on behalf of herself individually and as executor of McGuckin's estate. Count IV alleged that the City engaged in 10 negligent acts or omissions. On October 16, 1981, the City filed a motion to strike and dismiss count IV based on the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 5-101 et seq.) (hereinafter the Tort Immunity Act or Act). After a hearing on the City's motion to dismiss, the court found that the law would not impose liability against the City for failure to sufficiently inspect or extinguish the fire. However, the court did not strike subparagraph 22(e) of count IV, which alleged that the City negligently instructed the occupants to remain in the building.

On August 11, 1982, the trial court granted plaintiff leave to amend count IV of her complaint. The amendment alleged that the City owed decedent a "special duty." The City filed a motion to dismiss the amendment on August 22, 1985. The court granted the motion with respect to all of the allegations except those contained in paragraphs 22(a) and 22(b), which alleged that the City instructed or advised the occupants to remain in the building. The City filed a petition for reconsideration of its motion to dismiss, a motion to vacate the order entered on June 17, 1982, and another motion to dismiss. After a hearing on June 6, 1986, the court denied the City's petition for reconsideration.

On September 9, 1986, the City filed a motion for summary judgment. Prior to a decision on the motion, plaintiff moved to file, instanter, an amended complaint and her motion was granted. Before trial began, Union Station filed a motion to strike and dismiss count I of plaintiff's amended complaint that added the claim of res ipsa loquitur, which was denied. The trial court also dismissed two of the parties, and the case proceeded to trial against defendants herein. The facts are taken from the trial testimony.

Jordan Riehecky, a janitor at Union Station at the time of the fire, testified that usually when he arrived at work, around 6 a.m., he found trash carts near the loading dock. It was his responsibility to take the carts to a trash compactor. On the day of the fire, he also noticed new bags of sawdust stacked against a wall in the loading dock area. He removed all but one or two of the trash carts from the loading dock by 7 a.m. He stated that he was unable to remove all of the carts because of the amount of trash on the floor. He did not smell any smoke during this time. He did hear a popping sound which alerted him to the possibility of a fire. He pulled the fire alarm and ran upstairs. Riehecky testified that he had never received any training concerning procedure in case of a fire.

At approximately 10:40 a.m. on July 26, 1980, Carl Thomas, a security officer at Union Station, was advised by a janitor that the basement smelled of smoke. Robert Krabec, the acting supervisor of the security officers, directed Thomas and Coleman Smith, also a security officer, to go down to the basement and investigate the matter. As Thomas approached the loading dock area, he saw smoke near the ceiling and felt the heat. When Thomas looked through the doors into the loading dock, he saw flames. Krabec ordered Thomas and Smith to contact the fire department. The fire department arrived in approximately 20 minutes. The fire was brought under control within 10 minutes. Thereafter, the fire fighters proceeded to check for any extension of the fire.

James Higgins, the chief of Battalion 2 and ranking officer of the fire department, ordered the fire fighters to check the ceiling around an electrical chase (a boxed area contained inside a large structure and through which various pipes run), whose shaft led to the upper floors. Next, Higgins obtained a ladder which enabled him to look up the chase for evidence of smoke or a red glow. Captain O'Hara, in charge of Engine Company 1, climbed the ladder with a flashlight. He shut the flashlight off to see if any sparks were falling. He told Higgins that the area was clear. Higgins then ordered the fire fighters to climb the ladder with a hose and wash down the chase. Fire fighters were also sent to the roof to check for any extension of the fire.

Higgins was notified by radio that there was a person on the seventh floor who might be in jeopardy. He ordered Thomas Loughney, a lieutenant with the fire department, to investigate the matter. Loughney was accompanied by a Union Station security guard. The two men left the loading dock and went upstairs to the main lobby, where they stopped at the Golden Lion Restaurant. The doors were locked. The guard informed Loughney that he did not have the keys, but that he could obtain them. Loughney made no request for the keys; instead, he looked into the restaurant through the glass doors, seeing at a distance of 20 to 25 feet with the use of his flashlight. He did not see smoke or fire or feel heat up against the doors. The guard did not inform Loughney that the restaurant was above the area of the basement where the fire had just occurred. Thereafter, Loughney and the guard went to the seventh floor.

On the seventh floor, light smoke was visible and the area was ventilated. The guard departed, and Loughney proceeded to the lower floors, opening hallway and stairwell doors for further ventilation. Lieutenant Loughney did not converse with any of the occupants. When he returned to the first floor, he reported to Higgins that upon his visual inspection of the restaurant, through its locked doors, he saw no evidence of a fire. Higgins testified that neither he nor any of the fire fighters informed the tenants that it would not be necessary to evacuate the building. He further testified that he did not remember a conversation with Krabec concerning the people on the upper floors complaining of smoke. However, Thomas testified that he heard Krabec and Higgins arguing about the people on the upper floors who complained of smoke. Thomas alleged that he heard them advise the people not to worry because the fire was only in the basement.

McGuckin shared a fifth-floor office suite with Mary Banhart and Arthur Bridenstine. Between 9 and 10 a.m., employees on the fifth floor saw smoke in the corridors. Charlotte Bader, an employee who worked in Conrail's dispatch office, went to the suite and informed McGuckin and the others that there was a fire downstairs. Allan Cravens, another Conrail employee, testified that he spoke with Joe Schulberger, Conrail's assistant superintendent of operations, who informed him that he had spoken with Union Station personnel and was assured that the small fire was under control. As McGuckin and Bridenstine left the suite to get a report on the fire, they met a group of Conrail employees exiting an elevator and were told that there had been a fire downstairs but the fire department had extinguished it.

Banhart further testified that around noontime she went to the ladies room, where she found the window open and the smell of smoke prevalent. She went to McGuckin's office and pointed to the smoke outside. She suggested that they leave. According to Banhart, McGuckin had difficulty getting to the main office due to the thick smoke in the corridor. She eventually reached out into the hallway and brought him into the main office. McGuckin contacted Cravens and told him they were trapped. All except McGuckin went out onto the office window ledge. Banhart tried, but failed, to get McGuckin onto the ledge. He subsequently collapsed.

At approximately 11:37 a.m., the fire fighters left Union Station. About 20 minutes later, Thomas went to the main waiting room of Union Station, where he learned from a Faber's Restaurant employee that the smell of smoke was strong in the nearby Falcon Lounge. Thomas went to the Falcon Lounge and saw the smoke. He attempted to enter the Golden Lion Restaurant next door, but the doors were locked. However, he could see smoke through the glass doors. Krabec sent Thomas to obtain the keys. Both men entered the restaurant. Thomas saw a blaze of fire and shouted out to Krabec to get the fire department back. Thomas immediately began to evacuate the main waiting room. Thomas testified that he was aware of only one system of notifying tenants in case of an emergency, and that system was out of order on the day of the fire.

When the fire fighters arrived again, Higgins ordered an evacuation of the building. The thick smoke prevented Thomas from going upstairs to warn the tenants on the upper floors. Once outside the building, Thomas informed a fire fighter that there might be some people upstairs. A fire fighter rescued the Conrail employees from the window ledge.

Dr. Yuksie Konakci, a medical examiner with the Cook County medical examiners office, testified that McGuckin died from smoke inhalation.

The cause of the fire was in dispute at trial. James Ryan, who was employed by the Chicago fire department as an assistant commissioner and director of inspectional services at the time of the fire, testified that the basement fire was caused by an electrical malfunction. He stated that the fire in the restaurant originated in the area of the electrical chase. He further concluded that placing sawdust and full trash carts near the electrical closet created a fire hazard. Ryan stated that a fire doubles itself in volume approximately every three minutes. According to the witness, the failure of the fire fighters to detect the fire between 11 and 11:30 a.m. increased the danger of death from smoke inhalation on the fifth floor. If the fire had been discovered around 11:10 a.m., Ryan stated that it would have taken the fire fighters only 10 to 15 minutes to bring it under control.

Henry Morton, a registered professional engineer, was retained by the General Adjustment Bureau of Chicago, Union Station's insurance carrier, to inspect and investigate the fire. Morton found two probable causes of the fire: (1) spontaneous ignition and (2) human activity, i.e., someone dropping smoking materials into the trash, in the area of the basement fire. He ruled out electrical malfunction as the cause of the fire. Even if there were a malfunction, he found no fuel in the chase at that time to start an ignition reaction. Morton believed that the fire originated in the sawdust or in the dumpster ...


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