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04/15/94 H & H SAND & GRAVEL HAULERS COMPANY v.

April 15, 1994

H & H SAND & GRAVEL HAULERS COMPANY, ILLINOIS MINING CORPORATION F/K/A I-M SALES CORPORATION; CAPITAL BANK AND TRUST, AS TRUSTEE U/T/A NO. 627 DATED 11/28/83; AND 28W129 INDUSTRIAL AVENUE INVESTMENT, PLAINTIFFS-APPELLANTS,
v.
COYNE CYLINDER COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 91-L-571. Honorable William D. Block, Judge, Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

McLAREN, Inglis, Geiger

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The plaintiffs, H & H Sand & Gravel Haulers Company, Illinois Mining Company, f/k/a I-M Sales Corporation, Capital Bank & Trust, as Trustee under trust number 627, and 28W129 Industrial Avenue Investment, filed a complaint against various defendants on theories of negligence and strict product liability. The complaint sought recovery for damages to the plaintiffs' business premises resulting from an explosion and fire in unincorporated Barrington, Illinois. All of the defendants, with the exception of Coyne Cylinder Company, entered into settlement agreements with the plaintiffs and were dismissed from the case. Prior to trial, the court entered an order barring the plaintiffs from presenting expert testimony concerning whether gasoline-powered equipment caused the explosion and fire. Thereafter, the court entered another order barring the plaintiffs from presenting expert testimony by Robert Bambenek, or any other Rule 220 witness, concerning tests or inspections on the acetylene cylinder or valve, due to the "plaintiffs' loss, spoliation or destruction of numerous pieces of evidence." Summary judgment was entered in favor of Coyne Cylinder Company. The plaintiffs appealed. For the following reasons, we reverse and remand.

H & H Sand & Gravel Haulers Company is an Illinois corporation engaged in the business of transporting construction materials such as limestone, sand, and gravel. Illinois Mining Corporation, f/k/a I-M Sales Corporation, is an Illinois corporation in the business of brokering aggregate materials for use in construction. H & H and Illinois Mining conducted their business from a building located at 28W129 Industrial Road in unincorporated Barrington, Lake County, Illinois. Capital Bank & Trust as trustee under trust number 627, and 28W129 Industrial Avenue Investment, were legal title holders with beneficial interest in the property. Coyne Cylinder Company, the sole nonsettling defendant, is a California corporation which manufactures and distributes acetylene gas cylinders.

On April 13, 1989, the building located at 28W129 Industrial Road was substantially destroyed in an explosion and resulting fire. A State fire investigator, Angelo J. Zito, examined the scene the following day. It is undisputed that the following items were found in the box of a GMC truck which was housed in the building: a gasoline-powered welder with a two-gallon gasoline tank, a gasoline-powered generator with a two-gallon gasoline tank, an open gasoline can used for filling the gasoline tanks, an oxygen tank, a standard cylinder, or tank, used to contain acetylene gas, and two 100-foot hoses attached to the oxygen and acetylene tanks. Zito determined that the valve on the acetylene gas tank was open. He also discovered that the hose connected to the acetylene cylinder was torn. Zito and two other fire investigators concluded that the explosion and fire were caused by the ignition of acetylene gas which leaked into a frayed section of the hose when the valve to the acetylene cylinder was left open by the plaintiffs' employees.

The plaintiffs hired Robert Bambenek, a gas engineer, to conduct a cause and origin investigation. Bambenek examined the scene and observed that the walls of a GMC truck housed in the building had exploded, rather than imploded. On this basis, Bambenek concluded that the explosion originated inside the box of the truck. Bambenek examined each of the items in the truck, as well as the bed of the truck. If gasoline had leaked from the welder, generator, or gasoline can, there would have been a heavy char and burn pattern on the floor of the truck from a rolling fire typical in gasoline fires. He examined the truck bed for evidence of a gasoline fire in the form of a deep hole or char, or a classic spill and drip pattern and found no significant burning of the truck floor. Thus, Bambenek concluded that the fire was not caused by a gasoline spill or a leak from the welder or generator.

After examining the cylinder used to contain acetylene gas, Bambenek determined that there was a gas leak at the top of the cylinder. Bambenek took the acetylene cylinder and valve from the premises to conduct a more extensive examination. He completely dismantled the cylinder by disconnecting the valve from the cylinder and removing the fusible plug and POL fitting. The entire investigation was photographed. A leak test identified a leak in the packing material at the connection between the cylinder and valve. Bambenek estimated that the connection was leaking 6 to 10 cubic feet of acetylene gas per hour for at least two or three hours before the explosion. Further investigation indicated that there were defective threads at the valve's connection with the acetylene cylinder, that the threads and the threaded connection were not properly sealed, and that a screen was improperly installed in the cylinder which interfered with the tightening of the valve.

In Bambenek's opinion, the defective threads in the valve's connection with the acetylene cylinder caused a catastrophic leak a few hours before the explosion. He opined that the pilot light of a portable heater approximately 10 feet from the box of the truck was the most probable ignition source of the explosion. A spark from a cutting saw 15 feet away from the truck was the second most probable ignition source.

On April 11, 1991, two years after the explosion, the plaintiffs filed suit to recover damages in excess of $250,000 for losses to their property and business resulting from the explosion and fire. On March 11, 1992, the original complaint was amended to add Coyne Cylinder Company, the manufacturer of the acetylene cylinder involved in the explosion, as a defendant. The amended complaint sought damages against Coyne Cylinder on theories of negligence and strict product liability. The complaint alleged that Coyne manufactured and distributed the acetylene cylinder and the attached cylinder valve involved in the explosion. The negligence count alleged that Coyne had a duty to manufacture, inspect, test, and supply cylinders which were reasonably safe and would not leak acetylene gas and that Coyne breached this duty by (1) failing to properly connect the cylinder valve to the acetylene cylinder; (2) failing to adequately inspect the threaded connection between the cylinder and valve; (3) failing to adequately test the connection or implement testing procedures to detect a poorly threaded connection; (4) failing to reject or impound the cylinder which showed obvious signs of a poorly threaded connection; and (5) failing to detect that the threaded connection violated Federal regulations. The strict liability count alleged that the acetylene cylinder was unreasonably dangerous, unsafe, defective, prone to leak, and violated Federal regulations.

Coyne engaged in discovery of evidence regarding the cause and origin of the explosion and fire. In July 1992, the plaintiffs were served with requests to produce the acetylene cylinder, valve, hose, and related torch equipment pursuant to Supreme Court Rule 214 (134 Ill. 2d R. 214). It is undisputed that the welder, the generator, and the hose attached to the cylinder were not retained. At his discovery deposition, Bambenek testified that he did not preserve the hose because there was no evidence that the hose burst. He also stated that he made no effort to preserve the gasoline-powered equipment.

Following Bambenek's deposition, the plaintiffs were served with requests to admit pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216) regarding their handling of the physical evidence. The requests to admit alleged that the plaintiffs were in sole possession of the acetylene cylinder and valve, acetylene hose, gasoline-powered equipment, overhead heaters, and other items and that the plaintiffs destroyed the evidence or altered it from its condition immediately following the occurrence. The plaintiffs never responded to the requests.

In the fall of 1992, each defendant retained an expert to review the remaining evidence. Upon examining the remnants of the truck, each of the defense experts recognized a large charred area in the center of the truck bed. All three experts independently concluded that the most probable cause of the explosion and fire was ignition of gasoline vapors by a spark from a saw operated by the plaintiffs' employees 15 feet away from the truck. The experts were unable to examine the condition of the gasoline-powered welder and generator, the overhead heating unit, and the walls of the truck, since they were not retained by the plaintiffs or their agents.

The defense experts attempted to evaluate Bambenek's opinions regarding the acetylene gas leak and the allegedly defective threaded connection between the cylinder and valve. Since Bambenek removed and disassembled the valve during his inspection, the ...


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