Fisher v. City of Aledo

• Decision Date: 24 October 1974
• Docket Number: No. 74--85,74--85
• Citation: 23 Ill.App.3d 190,318 N.E.2d 305
• Parties: Dwaine FISHER and Bonnie J. Fisher, Plaintiffs-Appellants, v. CITY OF ALEDO, a municipality, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 305

318 N.E.2d 305

23 Ill.App.3d 190

Dwaine FISHER and Bonnie J. Fisher, Plaintiffs-Appellants, v. CITY OF ALEDO, a municipality, Defendant-Appellee.

No. 74--85.

Appellate Court of Illinois, Third District.

Oct. 24, 1974.

David J. Mason, Aledo, for plaintiff-appellants.

Peter C. Fieweger, Katz, McAndrews, Durkee & Telleen, Rock Island, for defendant-appellee.

ALLOY, Justice.

This is an appeal from a judgment entered in the Circuit Court of Mercer County, in which the court found appellants Dwaine and Bonnie J. Fisher contributorily negligent and dismissed the action of appellants as against the City of Aledo.

The Fishers sought recovery for damages sustained to certain rental property located in Aledo, as a result of the breaking of water pipes which caused water to eacape and damage the premises on or about January 1, 1972. Appellants allege that the damage was occasioned by reason of water in the unheated pipes and that the negligent failure of the city to terminate the water service to the building, after the service in the building, was the cause of the damage and entitled appellants to a recovery.

At the close of the case presented by appellants in the bench trial, appellee moved city had previously terminated the gas for a finding under Section 64(3), Chapter 110, Ill.Rev.Stat., 1973, which provides:

'In all cases tried without a jury, defendant may, at the close of plaintiff's case, move for a finding, judgment or decree in his favor. In ruling on the motion the court shall weigh the evidence. If the ruling on the motion is favorable to the defendant, a judgment or decree dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant he may proceed to adduce evidence in support of his defense, in which event the motion is waived.'

The court found that the appellants were contributorily negligent but made no express finding as to fault or negligence as to appellee.

The record indicates that appellants had received gas and water service for the rental property from the City of Aledo. On November 22, 1971, appellants requested the City to terminate both services. The gas service was promptly terminated, and notice of such termination was forwarded to appellants by means of a final bill with a handwritten notation 'Shut-off and sealed 11--23--71'. Neither a final bill nor other notification of termination of the water service was sent to appellants since termination was never accomplished for the reasons hereinafter noted. Appellant Dwaine Fisher had occasion to visit the premises 4 or 6 times between the time of the request to terminate and the discovery of the damage. He made no attempt to ascertain whether or not the water service had been terminated. The city established that its failure to shut off the water resulted from the fact that the only water valve known to the city was in the basement apartment of the structure. The door to the downstairs apartment was locked and vacant so that no entry was possible. No such problem existed with respect to the gas, since the valves were located outside the building. The city representatives were unaware of an outdoor water valve which was not visible due to a growth of foliage or its underground location.

On appeal in this Court, appellants deny that they were guilty of negligence. The parties agree that under the law of this State, plaintiffs cannot...