L. D. Brinkman and Company-Midwest v. National Sponge Cushion Co.

• Decision Date: 31 August 1979
• Docket Number: No. 78-1018,COMPANY-MIDWEST,78-1018
• Citation: 76 Ill.App.3d 683,31 Ill.Dec. 844,394 N.E.2d 1221
• Parties: , 31 Ill.Dec. 844 L. D. BRINKMAN AND, f/k/a Walter E. Selck and Company, a corporation, and Klefstad Companies, Inc. Assignee of 7125 Gunnison Building Corp., Plaintiffs-Appellants, v. NATIONAL SPONGE CUSHION CO., a corporation, and General Felt Industries, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1221

394 N.E.2d 1221

76 Ill.App.3d 683, 31 Ill.Dec. 844

L. D. BRINKMAN AND COMPANY-MIDWEST, f/k/a Walter E. Selck and Company, a corporation, and Klefstad Companies, Inc. Assignee of 7125 Gunnison Building Corp. Plaintiffs-Appellants, v. NATIONAL SPONGE CUSHION CO., a corporation, and General Felt Industries, Inc., Defendants-Appellees.

No. 78-1018.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 31, 1979.

Clausen, Miller, Gorman Caffrey & Witous, P. C., Chicago, for plaintiffs-appellants; James T. Ferrini, John B. McCabe and Patricia N. Hale, Chicago, of counsel.

Gottlieb & Schwartz, Chicago, for appellee General Felt Industries; Jack B. Schmetterer, Chicago, of counsel.

Hubbard, Hubbard, O'Brien & Hall, Chicago, for appellee National Sponge Cushion Co.; Alvin G. Hubbard and Paul V. Kaulas, Chicago, of counsel.

SULLIVAN, Presiding Justice:

Plaintiffs L. D. Brinkman and Company-Midwest (Brinkman) and Klefstad Companies, Inc. (Klefstad) brought this product liability action against National Sponge Cushion Company (National Sponge) and its corporate successor, General Felt Industries, Inc. (General Felt). The trial court ordered separate trials, in the first of which judgment was entered on a jury verdict in favor of National Sponge and against plaintiffs. Subsequently, an order of summary judgment was entered in favor of General Felt on the basis that its liability, if any, was purely derivative.

On appeal, the issues presented are (1) whether the trial court improperly denied plaintiffs' motion for judgment N. o. v. against National Sponge; and (2) whether, in the event entry of judgment N. o. v. here for plaintiffs is not warranted, we should order a new trial against both defendants on one or more of the following grounds (a) that the verdict was against the manifest weight of the evidence, (b) that the trial court erroneously denied the motion of Brinkman for a directed verdict on the question of assumption of risk, and (c) that incomplete impeachment and certain conduct of defense counsel deprived him of a fair trial.

This case arose from a fire which occurred in the main warehouse operated by Walter E. Selck and Company, Inc. (Selck), now known as Brinkman, a distributor of flooring products. Selck leased the warehouse from 7125 Gunnison Building Corporation, to which Klefstad is assignee, and among the products stored in it was sponge rubber carpet cushion manufactured by National Sponge. In the section of the building where the fire began, there were six storage racks. At the base of each such rack was a bin, and five of the bins contained rolls of National Sponge carpet cushion with other rolls stored elsewhere in the warehouse. Each roll measured approximately 18 to 20 inches in diameter and 54 inches wide and was wrapped first in paper and then in burlap, exactly as it had been shipped from National Sponge. Approximately 600 square feet of the carpet cushion was stored in this section of the building. Each of the storage racks had shelves approximately eight feet above the ground, upon which were stored rolls of Nafi padding (made of hair and burlap) and which were manufactured by another company. In terms of fire fighting equipment, the warehouse had a sprinkler system, fire hose and alarm system, as well as at least 30 fire extinguishers located throughout the building.

It appears that a steel upright on one of the storage racks described above became bent, and Selck hired Peterson Welding Company to cut out the damaged part and replace it with a straight piece. On January 24, 1968, Allan Sims, a Peterson welder, arrived to perform the job. Before starting his work, he told Richard Cummings, a Selck employee, that some of the rolls would have to be removed from the area so the welding could begin. Bernard Johnson (Selck plant superintendent) who was also present, ordered Tom Kelly (another Selck employee) to remove the rolls from the bin at the bottom of the damaged rack as well as some other materials nearby. Then, when Sims said the area still was not suitable, a tarpaulin was spread around the area where the welding was to be done as well as over the rolls in the bin. Cummings then secured a fire extinguisher which he held in his hands with the pin removed as Sims proceeded with the repair. In doing so, he climbed into the empty bin and, facing outward into an empty center aisle, began cutting into the upright. While he was working in the bin, Cummings saw a spark fly over Sim's shoulder and land on a roll of National Sponge carpet cushion which was not covered by the tarpaulin. In describing the events which followed, Cummings testified that the burlap wrapping on the roll "started like a bunch of sparklers on the Fourth of July"; that sparks were "jumping all over" onto other uncovered rolls; that he started spraying with the fire extinguisher but the flames spread; and that eventually the sponge rubber began to burn also. While, on cross-examination, he stated that he never actually saw the sponge rubber burning, he also stated that the entire bottom rack of sponge rubber was burning. Johnson testified that the flames he first saw were three to four inches above the surface of the padding and that the rubber was burning and not the burlap wrapping. Sims in turn testified that he did not see what was burning other than the burlap.

At any rate, from the testimony of all three, it appears that the fire spread at a very quick pace, with Cummings testifying that he had never seen a fire burn that rapidly, and Sims stating that while he had seen burlap burn before, this was the fastest fire he had ever observed. At some point, Cummings yelled, "Fire," and jumped up on some of the rolls and sprayed an extinguisher at the base of the flames. Sims had also attempted to fight the fire with an extinguisher, and Johnson alerted by Cummings's verbal warning telephoned the company operator and instructed her to call the fire department. According to Cummings, the warehouse sprinkler system activated in a couple of seconds, but the flames continued to spread creating a great deal of black smoke and fumes. More Selck employees arrived to combat the fire by using every available extinguisher and a garden hose.

These efforts had no effect, however, and when the Norwood Fire Department arrived, the Selck men evacuated the building at Johnson's order. The firemen hooked up two engines and immediately called for assistance, and soon the Rosemont Fire Department arrived. After three hours, approximately one-half million gallons of water were applied to the blaze, and while the flames were temporarily extinguished on occasions, the rolls would soon reignite. Later, the firemen immersed the rolls in the loading dock which had been flooded with water but, upon removing them from the water, they again burst into flames. The fire was generally so persistent that it was necessary for the firemen to remain on the scene for three days. It caused extensive damage to the steel roof and supports, storage racks, as well as the goods stored in the warehouse, and it was necessary for Selck to interrupt its business operations while the building was being restored.

Brinkman and Klefstad brought suit against National Sponge and its corporate successor, General Felt. After several counts were dismissed, either on motion or by agreement, plaintiffs' sixth amended complaint alleged that the sponge rubber padding, excluding the burlap and paper wrapping, was in a defective condition and unreasonably dangerous in that it was easily ignited, burned at a rapid rate, was inextinguishable by conventional methods once it began to burn, and bore no warning concerning these characteristics. The complaint also alleged that, as a proximate result of the unreasonably dangerous condition of the padding, it ignited and burned in such a manner as to cause property damage interruption of business and lost profits to Brinkman in the amount of $880,431.20, as well as property damage to Klefstad in the amount of $86,580.65. Defendant National Sponge raised the affirmative defense of assumption of risk against both plaintiffs, alleging that plaintiffs had knowledge that the padding was flammable but nevertheless allowed welding in the vicinity of the padding without removing the padding or otherwise preventing its ignition. Such conduct, they asserted, was the proximate cause of the damages occasioned to plaintiffs.

At the close of the evidence, plaintiffs moved for a directed verdict on the question of assumption of risk, and the trial court granted the motion as to Klefstad only. The jury then returned a verdict in favor of National Sponge, and judgment was entered thereon. Plaintiffs' alternative motion for judgment N. o. v. or for a new trial was denied, and the trial court then entered summary judgment in favor of General Felt on the basis that its liability was solely derivative to that of National Sponge.

OPINION

We first examine plaintiffs' contention that the verdict was against the manifest weight of the evidence and that the trial court should have granted their motion for a new trial. A new trial is warranted if the verdict is contrary to the manifest weight of the evidence (Mizowek v. DeFranco (1976), 64 Ill.2d 303, 1 Ill.Dec. 32, 356 N.E.2d 32; Carman v. Dippold (1978), 63 Ill.App.3d 419, 20 Ill.Dec. 297, 379 N.E.2d 1365), and a verdict is properly viewed as such where an opposite conclusion is clearly evident or if the verdict appears palpably erroneous (Bouillon v. Harry Gill Co. (1973), 15 Ill.App.3d 45, 301 N.E.2d 627). Further, the fact that we or the trial judge may reach a conclusion different from that of the jury is of no significance. Rhodes v. Oliva (1973), 13 Ill.App.3d 849, 301 N.E.2d 126.

Plaintiffs alleged in their complaint that defendants' sponge rubber padding was defective and unreasonably dangerous in that it was easily ignited; that it burned at a rapid rate;...