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02/07/94 ROBERT MOWEN v. ILLINOIS VALLEY SUPPLY

February 7, 1994

ROBERT MOWEN, PLAINTIFF-APPELLEE,
v.
ILLINOIS VALLEY SUPPLY COMPANY AND HONEYWELL, INC., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Madison County. No. 91-L-662. Honorable Paul E. Riley, Judge Presiding.

Lewis, Chapman, Maag

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Leave to appeal was granted to the defendants, Illinois Valley Supply Company (Illinois Valley) and Honeywell, Inc. (Honeywell), pursuant to Supreme Court Rule 306(a)(1)(ii) (134 Ill. 2d R. 306(a)(1)(ii)) from an order of the trial court denying defendants' motions to transfer venue from Madison County to Jersey County on the grounds of forum non conveniens. We affirm the ruling of the trial court.

Plaintiff was allegedly injured from an explosion of his water heater in his home in Jersey County, Illinois, on July 28, 1990. He filed suit in Madison County, Illinois, alleging negligence on the part of Illinois Valley in selling propane gas to plaintiff in a defective and dangerous condition in that it had a defective odorant or it had no odorant. Plaintiff sued Honeywell for alleged negligence in manufacturing, designing, and failing to give adequate warnings and instructions on the use, maintenance, and life expectancy of the gas valve to the water heater that exploded, causing plaintiff to be burnt over 80% of his body.

Illinois Valley is a Missouri corporation with its main office in Carrollton, Greene County, Illinois. It does not do business in Madison County. Honeywell is a Delaware corporation with its principal place of business in Minneapolis, Minnesota. Honeywell does business in Madison County.

The plaintiff admitted in his interrogatories to having purchased a LP gas cylinder from Illinois Valley in Kane, Jersey County, Illinois, the day before the explosion. Following the accident, plaintiff drove himself to Jersey Community Hospital and received emergency medical treatment before being transferred to St. John's Mercy Medical Center in St. Louis, Missouri. Plaintiff stayed at St. John's for over four months and was then admitted to a nursing home, the location of which is undisclosed. Plaintiff fell, while in the nursing home, and injured his hip. He was then admitted to the Wood River Community Hospital in Wood River, Madison County, Illinois, for one month. Plaintiff directs our attention to the "Secondary" reason on the admission record of Wood River Community Hospital, which states, "Status post severe burn with resultant multiple organ failure, such as adrenal failure, liver failure, pulmonary failure, septicemia and metabolic encephalopathy, Parkinsonism symptoms and secondary to medication * * *." Defendants claim that the admission was for a hip injury unrelated to the accident, while plaintiff maintains that the fall and injury were caused by the medical condition of plaintiff due to the explosion and burns.

Defendants basically claim that there is no connection between the accident to plaintiff and Madison County. The site of the accident was in Jersey County, plaintiff lives in Jersey County, and the majority of the witnesses live in Jersey County. Further, the defendants claim that the court docket is more crowded in Madison County and that the cost of obtaining willing witnesses would be greater for a trial in Madison County than in Jersey County.

Plaintiff's right to select the forum is considered by our courts to be a substantial one that should rarely be disturbed unless there are public and private factors that weigh strongly in favor of transfer. ( Washington v. Illinois Power Co. (1991), 144 Ill. 2d 395, 581 N.E.2d 644.) The substantial right of the plaintiff to select the forum is given less deference when, as in the case at bar, the plaintiff does not reside in the county in which he files suit. Washington Illinois Power Co. (1991), 144 Ill. 2d 395, 581 N.E.2d 644.

The defendants, however, have the burden of showing plaintiff's forum will be unduly burdensome or inconvenient to them. ( Moffitt v. Illinois Power Co. (1993), 248 Ill. App. 3d 752, 618 N.E.2d 1305.) All too often, defendants, in seeking to change the forum, argue and attempt to prove that the forum may be inconvenient or burdensome to the plaintiff, but they never argue or prove why the forum is more inconvenient and costly to them. Further, it is the duty of this court to determine if the trial court acted arbitrarily, without employing conscientious judgment, or whether, in view of all of the circumstances, the court exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice results. ( Washington Illinois Power Co. (1991), 144 Ill. 2d 395, 581 N.E.2d 644.) In reviewing the trial court's decision, we must consider the public- and private-interest factors. Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 554 N.E.2d 209.

Before discussing the private and public factors, we need to review some of the evidence and the allegations in the complaint. It is true that the situs of the accident was in Jersey County. The situs of the negligence, if any, however, may not have occurred in Jersey County. Illinois Valley stated in the discovery that it does not mix an odorant with the propane, but that it buys the propane already mixed with the odorant from a supplier doing business as "CBI," whose principals are Bob Wheatley of Highland, Madison County, Illinois, and Charles Updike, Jerseyville, Jersey County, Illinois. The propane is delivered to Illinois Valley's storage facility, the whereabouts of which is not contained in the record before this court. However, we do know that the principal place of business of Illinois Valley is in Carrollton, Greene County, Illinois, and Illinois Valley never asserts that its storage facility is located in Jersey County. It is also unknown at this stage of the proceedings where "CBI" has its office and storage facilities. Suffice it to say, if an odorant was negligently omitted from the propane, that negligent omission most likely did not occur in Jersey County. The burden is on Illinois Valley to show that the odorant was or should have been injected into the propane in Jersey County, and since Illinois Valley failed to meet its burden, we are free to assume that the situs of the negligence, if any, was not in Jersey County. The parties are still in the discovery stage, so there may be additional defendants or third-party defendants if evidence develops that an odorant was omitted from the gas by some other party.

The plaintiff alleges that Honeywell was negligent in manufacturing and designing the gas valve and in not warning the plaintiff of the life expectancy of the gas valve. Honeywell admitted that it did not design or manufacture the gas valve in Jersey County. Further, any omission in attaching adequate warnings by Honeywell would not have occurred in Jersey County. Thus, if there was negligence on the part of Honeywell, the acts or omissions did not occur in Jersey County.

Turning to the private-interest factors, the supreme court has set forth that these factors include the "'relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.'" Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 224, 506 N.E.2d at 129, quoting Gulf Oil Corp v. Gilbert (1947), 330 U.S. 501, 508, 91 L.Ed. 1055, 1062, 67 S.Ct. 839.

We first note that there were no direct witnesses to the explosion other than the plaintiff. Plaintiff rightfully complains that Honeywell's list of witnesses consists of plaintiff's neighbors, deputy sheriffs, and acquaintances from Jersey County that may have little or nothing to contribute to the case. It is not shown in the record where the State fire marshal, who might have investigated the fire, is located. Not only do the most important and expensive witnesses, such as both plaintiff's and defendants' investigators, the tester of the propane tank for odorant, the analysts of ...


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