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December 22, 1994


The Honorable Justice McMORROW delivered the opinion of the court: Justice Harrison, dissenting:

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

This interlocutory appeal arises from the denial of defendants motion, based on forum non conveniens, to transfer plaintiffs' personal injury lawsuit from St. Clair County to Pike County. The appellate court, sua sponte, certified an issue of importance: Should the doctrine of intrastate forum non conveniens, adopted by this court in Torres v. Walsh (1983), 98 Ill. 2d 338, 74 Ill. Dec. 880, 456 N.E.2d 601, be abrogated? The appellate court determined that the doctrine of intrastate forum non conveniens should be repudiated because it is contrary to the legislative intent of one of the venue provisions in the Code of Civil Procedure (735 ILCS 5/2-108 (West 1992)). The appellate court also held, with respect to the merits of the forum non conveniens motion under review, that the circuit court did not abuse its discretion in denying the motion to transfer the cause to Pike County.


In October 1987, Richard Peile was seriously injured in an explosion and fire at his home that occurred as he attempted to light the pilot light on a gas furnace in his basement. Hours before the explosion, an employee of Skelgas, Inc., had delivered to the Peiles 500 gallons of liquid petroleum, commonly called propane, from the Skelgas facility in Pike County. The Peiles' home also was located in Pike County. Richard Peile and his wife, Agnes, thereafter filed suit in Madison County, alleging, inter alia, the existence of design defects in the furnace that had exploded. Three defendants were joined in this suit: Skelgas, Inc., a retail distributor of propane gas; York International Corporation, the manufacturer of the furnace that exploded, and Honeywell, Inc., the manufacturer of a control valve on the furnace. Defendants moved for transfer of venue, based on forum non conveniens, from Madison County to Pike County, the site of the accident. Plaintiffs opposed the motion, arguing that Skelgas maintained a home office in Madison County. However, the Madison County court granted the motion. Plaintiffs did not appeal this ruling.

While the lawsuit was pending in Pike County, the parties took discovery. Plaintiffs amended their complaint to add additional defendants and theories of negligence. The amended complaint joined, as defendants, the following parties: Phillips Petroleum Company, Phillips 66 Company, Phillips Pipe Line Company, Shell Oil Company, and Skelgas Group, Inc. The additional allegations included defendants' allegedly improper or inadequate odorization of the propane gas sold to plaintiffs, and defendants' failure to warn of the dangers associated with the use of propane. An odorant is added to propane, an odorless gas, to alert people to potential danger in the event of a gas leak. The additional defendants joined in plaintiffs' amended complaint were all alleged to be suppliers or sellers of the propane gas in use at the time of the explosion and fire leading to plaintiffs' injuries.

Plaintiffs voluntarily dismissed their Pike County lawsuit in April 1990, although the case had been set for trial as number one on the docket for July 9, 1990. In December 1990, plaintiffs refiled their action in St. Clair County, approximately 100 miles from Pike County. The refiled action renamed as defendants Skelgas, Inc., from the original complaint, plus the same parties who had been added to the suit while it was pending in Pike County. The refiled action did not name York, the furnace manufacturer, or Honeywell, the furnace valve manufacturer. The allegations of the complaint refiled in St. Clair County were similar to those of the amended complaint that had been pending in Pike County.

The complaint refiled in St. Clair County alleges that the propane sold by the Phillips defendants, the Skelgas defendants, and Shell Oil was defective and unreasonably dangerous in that it was not adequately odorized. According to the complaint, two of the defendants, Shell Oil and Phillips Pipe Line, maintained wholesale, bulk distribution facilities from which Skelgas obtained the gas that was eventually delivered to plaintiffs at their home in Pike County. Shell's facility is located in Madison County and Phillips' facility is located in St. Clair County. Plaintiffs contend that gas which was stored at the St. Clair facility and delivered to plaintiffs was not properly or adequately odorized and tested by employees of Phillips and Skelgas. Plaintiffs charge that Skelgas employees failed to exercise adequate care with respect to the delivery of gas to plaintiffs' home, failed to properly inspect the gas appliances in plaintiffs' home following the delivery and installation of the propane gas, and failed to relight the pilot in the furnace, which proximately caused the explosion and fire that injured plaintiffs. Plaintiffs further allege that all defendants failed to provide proper warnings to plaintiffs regarding the dangerous properties of propane gas.

Defendants moved to transfer the refiled suit from St. Clair County back to Pike County, where the case had been pending for almost two years. The motion was denied. In its order of December 20, 1991, the court held:

"Since Defendants Phillips et al and Shell were not parties to the suit pending in Madison County at the time it was transferred by that court, but are parties in the cause pending before this court, and since there are allegations of negligence that occurred against all the Defendants, with the exception of Shell Oil, in St. Clair County, Illinois, this Court finds that St. Clair has a substantial interest in this cause.

Since the site of the negligence alleged to have occurred in St. Clair County may be a site necessary for view by the jury if requested by the parties, and the home where the negligence occurred in Pike County is no longer present and available for view, the Court finds that to be additional factors that it weighs in its Order.

The Court further takes judicial notice of its own docket, and in this county when cases are filed, they are assigned to individual Judges who then handle the case pending its disposition. Knowing the status of this Court's own docket, there is no backlog in this Court that would prevent this case going to trial in an expeditious manner, and in fact, this case could be set for trial within four (4) months of the time the parties announce this cause is ready."

The appellate court affirmed the circuit court's ruling, holding that the circuit court did not abuse its discretion in denying defendants' motion to transfer the action back to Pike County. In addition to that ruling, which addressed the arguments of the parties, the appellate court considered a question of first impression, not presented by the parties: Does section 2-108 of the Code of Civil Procedure, a venue statute, abrogate this court's authority to recognize and apply the common law doctrine of forum non conveniens? The appellate court answered this question in the affirmative, stating that section 2-108 requires that cases shall be tried where filed, except when a specific statute provides otherwise. The appellate court reasoned that because none of the venue statutes refer to forum non conveniens as a ground for transfer of venue, the court in Torres v. Walsh (1983), 98 Ill. 2d 338, 74 Ill. Dec. 880, 456 N.E.2d 601, lacked authority to recognize intrastate application of the doctrine and should reverse its acceptance or recognition of intrastate transfer based on forum non conveniens. Having reached this conclusion, the appellate court certified the appeal to this court, pursuant to Supreme Court Rule 316 (134 Ill. 2d R. 316).


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