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04/03/97 COLONIAL INN MOTOR LODGE v. GREG GAY

April 3, 1997

COLONIAL INN MOTOR LODGE, INC., FOR THE USE AND BENEFIT OF THE CINCINNATI INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
GREG GAY, DEFENDANT-APPELLEE (STASH O'NEIL'S/HARD TIMES, INC., DEFENDANT (JOANNE LUBRANO AND ANTONIO LUBRANO, PLAINTIFFS, V. COLONIAL INN MOTOR LODGE, DEFENDANT AND THIRD-PARTY PLAINTIFF AND THIRD-PARTY DEFENDANT; AND GREG GAY, DEFENDANT AND THIRD-PARTY DEFENDANT AND THIRD-PARTY PLAINTIFF)).



Appeal from the Circuit Court of Winnebago County. Nos. 93--L--73, 94--L--394. Honorable Ronald L. Pirrello, Judge, Presiding.

Rehearing Denied June 16, 1997. Released for Publication June 16, 1997.

Presiding Justice Geiger delivered the opinion of the court. Inglis and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Colonial Inn Motor Lodge, Inc., on behalf of its insurance carrier, the Cincinnati Insurance Company, sued Greg Gay (the defendant) and Stash O'Neil's/Hard Times, Inc. (Stash O'Neil's), in case No. 93--L--73 for damages from an explosion the defendant allegedly caused by driving into the plaintiff's building, the Colonial Inn. The plaintiff sued the defendant in negligence and sought recovery against Stash O'Neil's under the Dramshop Act (235 ILCS 5/6--21 (West 1994)). In case No. 94--L--394, Antonio and Joanne Lubrano sued the plaintiff and the defendant to recover for injuries from the explosion. The plaintiff and the defendant sued each other for contribution toward any damages awarded the Lubranos. The cases were consolidated for discovery purposes only.

The plaintiff appeals (see 155 Ill. 2d R. 304(a)) a grant of summary judgment (see 735 ILCS 5/2--1005(c) (West 1994)) for the defendant in case No. 93--L--73. The plaintiff argues that the defendant owed it a duty of care and that whether the defendant's negligence caused the plaintiff's damages is a jury issue. We agree. Therefore, we reverse and remand for further proceedings.

Count I of the plaintiff's second amended complaint alleges the following. The Colonial Inn was a "hotel/motel" at 4850 East State Street in Rockford. On October 30, 1992, the defendant caused a vehicle he was driving to come into contact with the building. The defendant was negligent in: (a) failing to keep a proper lookout; (b) failing to apply his brakes so as to avoid striking the building; and (c) driving his vehicle into the building. As a result, the building caught fire and exploded, causing the plaintiff property damage and lost income. The Cincinnati Insurance Company paid the plaintiff under an insurance policy, and the plaintiff was suing on the insurer's behalf.

The Lubranos' first amended complaint sought recovery in negligence against both the plaintiff and the defendant. Its allegations against the defendant essentially paralleled those in count I of the plaintiff's complaint, asserting that his negligent driving caused the contact that led to the explosion. Neither the plaintiff's complaint nor the Lubranos' complaint asserted that the defendant breached any duty to inspect the accident scene, inform anyone of the contact, or warn of any resultant danger.

The defendant moved for summary judgment on both the plaintiff's complaint and the Lubranos' complaint insofar as each applied to him. The defendant argued that, because the explosion was not a reasonably foreseeable consequence of the slight contact his car made with the building, he did not owe the plaintiff a duty. For the same reason, he maintained, his conduct could not be considered the proximate cause of the calamity. The defendant relied on excerpts from the deposition testimony of himself, Leann Johnson, and Michael Woodring.

The defendant's motion referred to yet another negligence suit that arose from his accident, viz., a 1992 action by Stash O'Neil's against the defendant and Frank Gay, d/b/a Frank Gay's Marquee. There, the complaint as amended alleged that the accident occurred after the defendant exited Stash O'Neil's and got into his car behind the restaurant. Stash O'Neil's asserted both that the defendant was negligent in causing the initial contact with the Colonial Inn air-conditioning or heating unit and that he breached a duty to stop immediately and locate the owner of the damaged property. The complaint alleged that had the defendant fulfilled this duty to warn, he would have discovered that he had severed certain gas lines. The complaint also alleged that the explosion and the fire that followed from the ignition caused the fire department to close Stash O'Neil's, resulting in lost business. The circuit court dismissed Stash O'Neil's suit for failure to state a cause of action (see 735 ILCS 5/2--615(a) (West 1992)).

The plaintiff's response to the defendant's summary judgment motion relied in part on the arguments the Lubranos made in their response to the defendant's motion. The plaintiff also made use of (and attached) an excerpt from Woodring's deposition testimony. We summarize the relevant deposition testimony.

The defendant testified that he was backing his car up in the parking lot immediately before the contact. Before he started to back up, he looked into the rearview mirror and saw only the brick building. The defendant drove no faster than two miles per hour. When he felt a bump, he activated his brakes and again looked into the rearview mirror, seeing only the brick building and not any air-conditioning or heating unit protruding therefrom. The defendant figured he had caused no damage, so he stayed in his car and exited the parking lot. The car suffered very little damage. Later that evening, the police told the defendant of the explosion.

Leann Johnson testified that, on October 30, 1992, she was an employee of Stash O'Neil's, which is located at 4846 East State Street in Rockford. Some time that afternoon, her friend Robert Reed drove her there so she could get her paycheck. Reed parked the car in Stash O'Neil's lot. As Johnson walked south toward Stash O'Neil's, she heard something that sounded like "someone hitting something." Johnson turned in the direction of the sound and saw the defendant's car near the west wall of a building. Johnson did not see the collision itself.

Johnson testified that she was not sure how far from the defendant's car she was when she heard the collision. (Diagrams that Johnson marked are not in the record on appeal.) Johnson also equivocated on how loudly the defendant's car collided with the air-conditioning or heating unit. Although she described the sound as a "bang," she conceded that earlier she accurately said that "'it wasn't very loud, but it was loud enough that we heard it good.'" The defendant's vehicle was stationary for a short time and drove off. At some point after she heard the collision, Johnson saw a dent in the "air-conditioning thing, the little thing that's hanging outside," this unit being about 12 to 15 inches high and perhaps 20 inches wide. Johnson did not recall how big or deep the dent was or exactly where it was on the face of the unit. Johnson never saw the unit move, ...


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