Foster v. Bi-State Development Agency

• Decision Date: 17 January 1984
• Docket Number: BI-STATE,No. 45895,45895
• Parties: C. Tom FOSTER, Fostaire Harbor, Inc., & Aviation General Insurance Co., Plaintiffs-Appellants, v.DEVELOPMENT AGENCY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 94

668 S.W.2d 94

C. Tom FOSTER, Fostaire Harbor, Inc., & Aviation General Insurance Co., Plaintiffs-Appellants, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Respondent.

No. 45895.

Missouri Court of Appeals,

Eastern District,

Division Five.

Jan. 17, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 29, 1984.

Application to Transfer Denied

May 15, 1984.

Lusser, Hughes & Lusser, Rene E. Lusser, St. Louis, for plaintiffs-appellants.

Joseph A. Murphy, St. Louis, for defendant-respondent.

RONALD M. BELT, Special Judge.

Plaintiffs appeal from a judgment in favor of Bi-State Development Agency. We affirm.

This case had its genesis in an August 13, 1978 fire which totally destroyed aircraft Hangar IV owned by Bi-State and located at the Bi-State Parks Airport in Cahokia, Illinois. Fostaire, Inc. leased a portion of that hangar.

Fostaire's last employee left the hangar at 9:45 p.m. on August 12. Fostaire kept a vicious attack dog inside a portion of the premises it leased and allowed the dog to roam freely during hours that employees were not present. The dog could only be approached safely by four employees. At the time the last employee left on August 12, the dog was unleashed and all doors shut. In addition to this protection, under the terms of Fostaire's lease, Bi-State was to provide night security service for the premises. Bi-State contracted with Whelan Security Co. and Sentinel Security Services Inc. to provide a guard for the airport. The guard's duties included protecting several other buildings besides Hangar IV. The guard's instructions were to make rounds once an hour, but otherwise he was to remain at Hangar I, located a quarter of a mile from Hangar IV. He was to be watchful for fires, unauthorized personnel, vandals and was to check any open doors for intruders. On the evening of August 12, the guard was to report for duty at 11:00 p.m. but failed to appear.

At 12:20 a.m., a Cahokia deputy marshal on patrol approached Hangar IV and observed the west hangar door open approximately two feet. He saw no one nor any vehicles parked in the vicinity. From his patrol car, the marshal looked inside the hangar and saw no one nor any sign of fire. He heard no barking dog. He left and continued his rounds.

At approximately 12:56 a.m., the fire was first discovered. It "had been in progress for probably ten to fifteen minutes," and "smoke was billowing a thousand feet into the air." There were 13 helicopters in the hangar which contained over 1000 gallons of jet aviation fuel in their gas tanks combined. "Once the first fuel tank erupted ... there was sufficient fuel to just go." The hangar was constructed in part of plywood and wooden beams. It had a freshly tarred roof. The Cahokia volunteer fire department had considerable difficulty in battling the fire and never brought the fire under control. The fire extinguished itself only when the hangar was consumed. An autopsy on the remains of the dog found after the fire established it died of smoke inhalation. There was no evidence of foul play in its death.

The fire caused the total destruction of plaintiffs' property located in the hangar. Plaintiff Tom C. Foster owned the helicopters valued at $943,500.00 destroyed in the fire. Plaintiff Aviation General Insurance Company provided insurance coverage of $381,500.00 on the helicopters which was paid to Foster in exchange for subrogation rights. Property of Fostaire, Inc. destroyed in the fire consisted of furniture, shop equipment, tools, and an extensive inventory, all of which was valued at $885,925.00.

Plaintiffs theorized the fire was caused either by defective wiring or arson set by an intruder. On the former point, plaintiffs presented evidence that a prior tenant had observed electrical arcing in the rafters of the northwest quadrant of the hangar caused by a defective circuit. The previous tenant turned the switch controlling this circuit to the off position and labeled it "do not use." While the switch was in this position, the electrical wires were not energized. This was the situation as it existed at the time of the fire in 1978. Plaintiff presented no expert witnesses.

Defendant theorized that the fire was caused either by arson or by the ignition of gasoline fumes from an uncapped 55 gallon drum by a spark from an air compressor.

Plaintiffs submitted the case to the jury by three separate verdict-directing instructions, each of which submitted the same alternative theories of negligence:

1. That Bi-State on the night of August 12-13 failed to provide a security guard to inspect the doors of Hangar IV and to find them to be unlocked and open and to then inspect the interior of the hangar and find any intruders therein; or

2. That Bi-State failed to provide a security guard who would have been watchful for fire on his patrol, or

3. That Bi-State knew or by using ordinary care could have known of a faulty electrical wiring around the fuse panel boxes located in the northwest area of Hangar IV which caused that area of the hangar to be unsafe.

The jury found in favor of the defendant on all issues. Plaintiffs raise nine points of error which they assert entitle them to a new trial. Eight points relate to instructions or admission of evidence of the defendant. The other alleges that the trial court erred in failing to grant a new trial because Bi-State judicially admitted negligence which proximately caused the fire. Defendant denies any judicial admission and contends the judgment should be affirmed because plaintiffs failed to make a submissible case.

The pleading alleged to be a judicial admission was defendant's second amended third party petition directed to Whelan Security Company and Sentinel Security Services, Inc., who are not parties to this appeal. Paragraph 9 of that petition reads:

The alleged damage suffered by Plaintiff was caused by the negligent acts or omissions of the defendants Whelan Security Company and Sentinel Security Services, Inc., and not by the sole negligence of Bi-State Development Agency or any other acts or omissions on its part.

To state a cause of action against the third party defendants for indemnification, defendant was necessarily required to plead their negligence. The allegations are not facts, but legal conclusions. Therefore, they do not amount to admissions. Wors v Glasgow Village Supermarket, Inc., 460 S.W.2d 583, 590 (Mo.1970); Macheca v. Fowler, 412 S.W.2d 462, 465 (Mo.1967). Plaintiffs direct the court's attention to Huber v. Western & Southern Life Insurance Co., 341 S.W.2d 297 (Mo.App.1960). Huber is not applicable. In that case, the admission was an affirmative fact, not a legal conclusion and was made in plaintiff's petition against defendant, not in a third party pleading. We find no merit to this point.

We now take up defendant's contention that plaintiffs failed to make a submissible case. The parties have stipulated that the substantive law of the State of Illinois applies. Under Illinois law, there must be proof of both negligence and proximate causation of an injury to impose liability on a tortfeasor for damages. Kincl v. Hycel, Inc., 56 Ill.App.3d 772, 14 Ill.Dec. 374, 385, 372 N.E.2d 385, 396 (1977). The proximate cause of an injury is a cause which produces the injury and without which the result would not have occurred. Kincl, 14 Ill.Dec. at 385, 372 N.E.2d at 396; Chapman v. Baltimore & Ohio Ry Co., 340 Ill.App. 475, 92 N.E.2d 466, 471 (1950). Liability cannot be based upon speculation, conjecture or surmise. Illinois Bell...