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WARNER/ELEKTRA/ATLANTIC CORP. v. COUNTY OF DUPAGE

July 18, 1991

WARNER/ELEKTRA/ATLANTIC CORPORATION; WARNER COMMUNICATIONS INC.; and FIREMAN'S FUND INSURANCE CO., As Subrogee for WARNER/ELEKTRA/ATLANTIC CORPORATION and WARNER COMMUNICATIONS INC., Plaintiffs,
v.
COUNTY OF DUPAGE, ILLINOIS, Defendant


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 Plaintiffs Warner/Elektra/Atlantic Corporation and Warner Communications, Inc. (collectively, "Warner"), together with their insurer, Fireman's Fund Insurance Co. ("Fireman's Fund"), brought this action to recoup the losses they sustained when the warehouse which Warner leased in Bensenville, Illinois was flooded on two occasions in the summer of 1982. The flooding damaged or destroyed a number of record albums, cassettes, and eight-track tapes stored in the warehouse. All defendants except the County of DuPage, Illinois ("DuPage"), settled with plaintiffs in advance of trial. *fn1" Plaintiffs asserted two claims against DuPage, one sounding in negligence and the other in inverse condemnation. In essence, the theory of plaintiffs' case against DuPage was that when DuPage had widened and resurfaced a segment of Thorndale Road adjacent to the Warner property in the 1970s and reconfigured a drainage culvert under the roadway, it had created conditions which, during two heavy rainstorms in 1982, caused water to overflow a drainage canal and flood the Warner property.

 On March 22, 1991, after 11 days of trial, the jury returned a special verdict in favor of plaintiffs on both claims. In full, the special verdict form was completed as follows:

 SPECIAL VERDICT FORM

 A. As to plaintiffs' negligence claim:

 
1. Was the County of DuPage negligent as stated to you in these instructions?
 
Yes X
 
No ___
 
2. If the answer to No. 1 is yes, was the negligence of DuPage County a proximate cause of damage to the plaintiffs?
 
Yes X
 
No ___
 
3. If you answered yes to numbers 1 and 2, were the plaintiffs contributorily negligent as stated to you in these instructions?
 
Yes X
 
No ___
 
4. If you answered yes to number 3, was such contributory negligence a cause of plaintiffs' own damage?
 
Yes X
 
No ___
 
5. If you answered yes to number 4, assuming that 100% represents the total combined negligence of all persons or entities whose negligence proximately contributed to the plaintiffs' damage, including the plaintiffs and DuPage County and all other persons and entities, what percentage of such negligence do you find is attributable solely to the plaintiffs?
 
70%

 B. As to plaintiffs' inverse ...


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