Brooke Inns, Inc. v. S & R Hi-Fi and TV

• Decision Date: 21 June 1993
• Docket Number: HI-FI,No. 1-90-2374,1-90-2374
• Court: United States Appellate Court of Illinois
• Parties: , 188 Ill.Dec. 164 BROOKE INNS, INC., an Illinois corporation; John A. Brooke, Georgia E. Brooke and Pioneer Bank & Trust Company, Plaintiffs-Appellees, v. S & RAND TV, d/b/a Columbia Audio Video, Defendant-Appellant.

Page 734

618 N.E.2d 734

249 Ill.App.3d 1064, 188 Ill.Dec. 164

BROOKE INNS, INC., an Illinois corporation; John A. Brooke,

Georgia E. Brooke and Pioneer Bank & Trust

Company, Plaintiffs-Appellees, v. S & R HI-FI AND TV, d/b/a Columbia Audio Video, Defendant-Appellant.

No. 1-90-2374.

Appellate Court of Illinois,

First District, First Division.

June 21, 1993.

Office of Wildman, Harrold, Allen & Dixon, Chicago (Mark P. Miller, of counsel), for defendant-appellant.

Office of Clausen Miller Gorman Caffrey & Witous, P.C., Chicago (James T. Ferrini, Thomas A. McDonald and George C. Ellison, of counsel), for plaintiffs-appellees.

Presiding Justice MANNING delivered the opinion of the court:

This is an appeal by defendant from a judgment entered after a jury trial in favor of plaintiffs and against defendant for $1,000,000. Plaintiffs filed a negligence action to recover for property damage to their home which resulted from a fire allegedly caused by defendant's employee while he was installing a television antenna cable in plaintiffs' residence. Defendant argues on appeal that: (1) the judgment in favor of plaintiffs should be vacated and judgment entered in its favor notwithstanding the verdict; (2) the trial court erred in granting judgment in favor of plaintiffs on the res ipsa loquitur count; and (3) defendant is entitled to a new trial because of numerous instances of error committed by the trial court and plaintiffs' attorney. For the reasons which follow we affirm.

The record reveals that on October 1, 1981, Richard Coari was an employee of Columbia Audio Video whose assignment was to install coaxial cable at plaintiffs' home in Lake Forest, Illinois. Plaintiffs' home was comprised of four (4) sections which formed a square and surrounded a large atrium. There were three floors on the south section, two on the west, one on the north and two on the east. Each section also had an attic over it. The two rooms and windows and stairwells were designated by number.

About 8 p.m. on October 1, 1981, a fire occurred at the home. There is conflicting evidence as to where in the home the fire began and what caused the fire. John A. Brooke testified that he hired defendant to provide an antenna receptacle in the ceiling of the game room of his home. He testified that about 8 p.m. on October 1, 1981, he was sleeping in the library of his home when he heard his son John yell "fire." At that point he took a fire extinguisher up the stairs to the second floor. Mr. Brooke stated that he saw smoke emitting from a trap door on the third floor, placed a ladder underneath the door, then used the fire extinguisher to push the door open. At that point, smoke escaped out of the scuttle hole. He then discharged the fire extinguisher until it was emptied, and ran down the stairwell to the second floor where he met a police officer. Mr. Brooke testified that the lights on both the second and third floors were still on at that time. The lights were also working in stairwell areas 205, 206, 211 and the third floor storage room. Mr. Brooke testified that he saw the lights as he travelled up the stairwell and through the hallways in search of the fire. Mr. Brooke stated that lights were not flickering, and that there was no problem with the second floor light fixture. He denied telling anyone that the light fixtures had been working intermittently for the past several months.

Plaintiffs' son John E. Brooke (John), testified at trial that he arrived at the home about 8 p.m. He walked up stairwell 104 to the second floor hall area 205 where he smelled smoke. He checked the fire place on the second and first floors in the area of stairwell 211 where he heard the sound of fire crackling above him. He yelled "fire" and awakened his father who was in the library on the first floor. At that time, Mrs. Brooke called the fire department and reported an electrical fire. John and Mr. Brooke then went upstairs with fire extinguishers to the game room in the west section of the second floor and the two walked up stairwell 211 to the third floor storage room. John testified that he did not see flames on either the second or third floors.

Richard Coari, an employee of defendant, testified at trial as an adverse witness. He stated that he had installed television outlets at plaintiffs' home several days before the fire. He was alone in the attic on October 1, 1981, the day of the occurrence. He testified that he entered the third floor attic, extended cable from the antenna booster to the west end of that attic and then extended the cable north into the second floor attic. He used fish tape to feed the cable through the "plenum" space. He testified that he then exited the third floor south attic, entered the second floor west attic, and crawled through the second floor west attic to get the cable he had earlier dropped. There was no light in the attic except the trouble light which he used to illuminate the plenum space. He plugged it in at various electrical outlets as he moved around. He testified that his plastic drop light was yellow or orange plastic and had a hinged bulb guard.

Coari stated that about 4 p.m., he and Mr. Brooke carried a large television and screen into the second floor game room in the west wing. He stated that he did not finish the project that day and left about 5 p.m. He kept the cable in the attic over the game room that night. Coari claimed that he learned of the fire two days after it occurred.

John Geisler, a witness for plaintiffs, testified at trial that about three days after the fire he spoke with Coari when he came to his home to drop off speaker wire. He testified that Coari at that time told him that he had been working at plaintiffs' home running cable and had dropped the drop light down a hole to light the area in which he was working. He stated that the light broke and started a fire within the area which he thought he had put out. He later discovered that plaintiffs' home had burned. Defendant did not discover that Geisler was a witness until August 4, 1989.

Robert Bambenek testified for plaintiffs as an expert witness. Bambenek was not a firefighter or a State certified fire investigator, but had done extensive fire investigation work over a 12 year period. Bambenek examined plaintiffs' third floor attic on October 21, 1986. This was about five years after the fire. The third floor area damaged by the fire at that time had been repaired and the home had been remodeled. He also admitted that within the five year period after the fire pipefitters and electricians had been in the attic installing sprinklers, lights and heat and smoke detectors.

Bambenek testified that while inside the second floor west attic, he found cigarette butts, empty cigarette packages, a broken light bulb, and a white plastic bulb guard for a drop light.

Bambenek reviewed the depositions of Mr. Brooke and Coari, and also reviewed technical documents and floor plans as part of his investigation. However, he did not speak with the Lake Forest firemen nor read their statements. He also testified that he did not read the report prepared by plaintiffs' second expert, Keery Padfield. Bambenek opined that the probable cause of the fire was the drop light that was either placed upon or fell upon the cellulosic insulation.

Following the fire, about 10 photographs were taken of the inside of the home. Those photographs were offered into evidence by plaintiffs as exhibits 41 through 50. Mr. Brooke testified that exhibit 41 depicted area 205 with holes in the ceiling made by firemen, and was taken one or two days after the fire. Exhibit 44 depicted stairwell 205 and showed a tapestry hung on the wall of the landing that did not sustain any fire damage. Exhibit 44 was taken the day after the fire. Exhibits 48 and 49 were taken about three months after the fire. Exhibit 48 depicted area 205 after the plaster which had been water damaged had been removed, and exhibit 49 depicted window 205 and the curtains. Exhibit 50 depicted the main stairwell with the windows and curtains still intact, and the ceiling plaster had been removed. Plaintiffs testified that none of these exhibits depicted any fire damage.

Defendant claimed that the time and/or date the photographs were taken were never established. It further claimed that plaintiffs never established whether exhibit 44, showing the 205 stairwell wall that Beatty tore open to find the burned conduit, was taken before or after the fire damage had been cleaned from the home.

Georgia Brooke testified as an adverse witness for defendant. She stated that on the day of the fire Coari was alone in the attic and she assisted him in locating the amplifier in the third floor attic. She stated that Coari was responsible for stringing non-electrical coaxial cable in the game room. Mrs. Brooke testified that prior to the night of the fire there had not been any malfunctioning chandeliers or light fixtures in the home. She further testified that the electrical outlets in the home were functioning properly and that she was not aware of any potential fire hazards in the home.

On cross-examination Mrs. Brooke testified that earlier on the day of the fire she saw Coari carrying a ladder and drop light. She stated that he left the home about 5 p.m. and that she did not believe he had the drop light with him at that time. Mrs. Brooke identified, in court, items that were retrieved from the home by Bambenek, including the casing for a drop light, a light bulb and insulating material.

Lake Forest fire department Lieutenant Robert Wilkins and fireman Raymond Fontana testified in defendant's case in chief that they arrived at the scene about 8:22 p.m. Fontana testified that he did not see any fire outside the home and once inside he did not see fire, but felt heat and saw smoke coming through the scuttle hole leading to the third floor southwest attic. Wilkins testified that he saw fire on the second...