Appeal from the Circuit Court of Cook County No. 96 L 00072 The Honorable Sophia Hall, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
On December 7, 1995, Janice Adams died as a result of an explosion and fire at her home in Calumet City, Illinois. Christy Adams (plaintiff), as special administrator of the estate of Janice Adams, deceased, filed a wrongful death suit against Lucia Georgevich and Northern Illinois Gas Company (NI-Gas). On September 13, 2000, the trial court granted summary judgment in favor of NI-Gas and deemed Georgevich's motion for summary judgment moot. On December 22, 2000, the trial court denied Adams' motion to reconsider. On January 18, 2001, the trial court also denied plaintiff's motion to take evidence depositions to preserve testimony. Adams presents the following issues for review on appeal: (1) whether the trial court erred in granting summary judgment in favor of NI-Gas; and (2) whether the trial court abused its discretion in denying plaintiff's motion to perpetuate testimony.
Janice Adams was a 48-year-old mother of two when she died on December 7, 1995, as a result of a natural gas explosion and fire at her home. Christy Adams, as special administrator of the estate of Janice Adams, deceased, originally filed a wrongful death action against the homeowner, Lucia Georgevich, and later added NI-Gas.
Assistant Chief of the Calumet City fire department Dan A. Smits stated in his pretrial deposition that he believed that the fire originated at the home as a result of an explosion involving natural gas. He further opined that the location of the gas flow was the Cobra gas connector.
Plaintiff's expert, accident investigator Charles Lamar, testified that the source of the natural gas leak at the Adams' home was the failure of the flexible connector that connected the back of the range to the house piping, called the Cobra. He further testified that there was no failure in the NI-Gas facilities or the gas meter that led to the explosion. Lamar noted that phosphorus brazing was banned in 1968, and NI-Gas knew for decades about the failure of the "brazed joints," but did not take sufficient action to stop the use of those joints and did not warn the public about them.
Norman Breyer, Ph.D. testified that there was a good deal of information circulated to the gas distributors starting in 1968 regarding the inherent weakness of the Cobra tubing connection and the danger of using brazing compounds that contained phosphorus because it caused the joints to become brittle.
The decedent's ex-husband, Leonard Adams, testified in deposition that he had observed NI-Gas employees read the gas meter in the utility room of the home on occasion, but they did not examine anything in the house other than the meter. In late 1978 or 1980, after having a new clothes drier installed by Sears, a gas leak was detected. Janice Adams called NI-Gas. A NI-Gas employee came to the home and checked a gas pipe that ran along the wall between the meter and the clothes drier. He discovered that it was leaking and tightened the pipe.
On June 21, 2000, NI-Gas filed a motion for summary judgment asserting that it did not owe a legal duty to Janice Adams. Georgevich also filed a motion for summary judgment.
On September 13, 2000, NI-Gas' motion for summary judgment was granted and Georgevich's motion for summary judgment was deemed moot. Plaintiff filed a motion to reconsider the September 13, 2000, order. On December 22, 2000, plaintiff's motion to reconsider was denied.
On January 12, 2001, plaintiff filed an emergency motion to take evidence depositions to preserve expert witness testimony. Plaintiff's emergency motion asserted that she had retained multiple expert witnesses who were "instrumental" to the plaintiff's cause of action, including Charles Lamar, Norman Breyer, and Edward Karnes. Based on the time to complete the appellate process and the age of the plaintiff's experts, plaintiff requested that the testimony of one or more of her experts be preserved in the event that the case was returned for trial. The trial court denied plaintiff's motion, reasoning that "[t]hey're not fact witnesses who are essential to proving the Plaintiff's or Defendant's cases." Plaintiff now appeals the grant of summary judgment in favor of NI-Gas and the denial of her emergency motion to preserve testimony.
Plaintiff asserts that NI-Gas owed Janice Adams a common-law duty to use every reasonable precaution to avoid injury to the person or property of its customers and the trial court erred in granting summary judgment in favor of NI-Gas. NI-Gas responds that it owed no duty to plaintiff or her decedent under Illinois common law.
Appellate courts apply a de novo standard when reviewing summary judgment rulings. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party's right to judgment is clear and free from doubt. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). Summary judgment is appropriate only when the pleadings, depositions, admissions, and affidavits on file, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Smith v. Allstate Insurance Co., 312 Ill. App. 3d 246, 251, 726 N.E.2d 1 (1999). Where a reasonable person could draw divergent inferences from undisputed facts, summary judgment should be denied. Pyne v. Witmer, 129 Ill. 2d 351, 358-59, 544 N.E.2d 1304 (1989).
To state a cause of action for negligence, the plaintiff must establish: (1) the defendant owed a duty of care; (2) the defendant breached that duty; and (3) the plaintiff incurred injuries proximately caused by the breach. Espinoza, 165 Ill. 2d at 114. If the plaintiff fails to establish an element of the cause of ...