Sandburg-Schiller v. Rosello

• Decision Date: 28 October 1983
• Docket Number: SANDBURG-SCHILLER,No. 82-1519,82-1519
• Citation: 74 Ill.Dec. 690,456 N.E.2d 192,119 Ill.App.3d 318
• Parties: , 74 Ill.Dec. 690 , an Illinois limited partnership, Nancy Miller, Genevieve Commarata, Sharon Eldred, Oleta Summers, Myrna Scher, Lorraine Warbis f/k/a Lorraine Lubin, William Hutchinson, Barbara Longmire, Jeffrey Cohn, Betty Johnson, Anita Sweeney, Karen Walsh, George W. Boulton, Jr., Phyllis Levinson, Jack R. Grenz, Howard Cohn, Christopher M. Cronin, Jeff McKenny, Kay Selby, Richard Odem, Martin Shapiro, and John Hamilton, Plaintiffs-Appellees, v. Luis F. ROSELLO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 192

456 N.E.2d 192

119 Ill.App.3d 318, 74 Ill.Dec. 690

SANDBURG-SCHILLER, an Illinois limited partnership, Nancy Miller, Genevieve Commarata, Sharon Eldred, Oleta Summers Myrna Scher, Lorraine Warbis f/k/a Lorraine Lubin, William Hutchinson, Barbara Longmire, Jeffrey Cohn, Betty Johnson Anita Sweeney, Karen Walsh, George W. Boulton, Jr., Phyllis Levinson, Jack R. Grenz, Howard Cohn, Christopher M. Cronin Jeff McKenny, Kay Selby, Richard Odem, Martin Shapiro, and John Hamilton, Plaintiffs-Appellees, v. Luis F. ROSELLO, Defendant-Appellant.

No. 82-1519.

Appellate Court of Illinois,

First District, Fifth Division.

Oct. 28, 1983.

Rehearing Denied Dec. 8, 1983.

[74 Ill.Dec. 692] Daniel J. Leahy, Leahy & Eisenberg, Ltd., Chicago, for defendant-appellant

Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago (James T. Ferrini, John B. McCabe, Philip H. Hilder, Chicago, of counsel), for plaintiffs-appellees.

WILSON, Presiding Justice:

Plaintiffs, owner/landlord and several tenants of an apartment building, filed a three-count complaint against defendant, a co-tenant, to recover damages suffered from a fire which originated in defendant's apartment and spread throughout the building. The three counts of the complaint sounded in negligence (count I), res ipsa loquitur (count II), and wilful and wanton misconduct (count III). The trial court directed a verdict for defendant and against plaintiffs on count III and, pursuant to separate jury verdicts, entered judgment for plaintiffs and against defendant on counts I and II. On appeal, defendant contends that: (1) under Illinois law, a landlord has no cause of action against a tenant for fires occurring during the term of the lease; (2) evidence of defendant's drinking was inadmissible without indicia of intoxication; (3) the trial court improperly limited the cross-examination of various witnesses as to possible causes of the fire; (4) the verdicts

                [74 Ill.Dec. 693] were against the manifest weight of the evidence and the trial court erred in denying defendant's motions for a directed verdict, judgment n.o.v. and new trial;  and (5) plaintiffs failed to establish a prima facie case of res ipsa loquitur.   In the alternative only, plaintiffs cross-appeal, contending that the trial court erred in directing a verdict on count III.  In addition, plaintiffs allege that because defendant's notice of appeal was directed only to the jury verdict and not to the denial of the subsequent post-trial motion, this court lacks jurisdiction to consider the substance of the appeal.  For the reasons that follow, we find that this court does have jurisdiction and affirm the judgment of the trial court
                

Plaintiffs' Case

At approximately midnight on December 10, 1974, or shortly thereafter on December 11, 1974, the Chicago fire department responded to a fire in defendant's seventh floor efficiency apartment at 88 W. Schiller, Chicago. Testifying as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill.Rev.Stat.1981, ch. 110, par. 2-1102), defendant stated that on the evening of December 10, 1974, from approximately 5:30 p.m. to 10 p.m., he attended a dinner party two blocks from his apartment. Approximately 10:15 p.m., he returned alone to his apartment. Generally, when it was early enough, he would have a cigarette and either read or watch television before going to bed. Although defendant recalled smoking at the party, he could not recall whether he had smoked upon returning home. If he had smoked, however, he would have done so while sitting on the sofa in the living room area. Defendant admitted to being a habitual smoker, having smoked for approximately 23 years. When he went to bed that evening, all electrical items, with the exception of the clock in the bedroom area, were turned off. Defendant had never received an electric shock from any of these items and all cords were in good condition.

Approximately midnight, defendant was awakened by a shortness of breath. Although his apartment was filled with smoke, he did not see any sparking or flames, nor did he feel any concentration of heat on one side of the apartment or the other. He opened the window on the north wall behind his sofa in the living room area, breathed the air for a few seconds and then ran out of the apartment and sat down on the common stairway to catch his breath. He then went down to the first floor. Defendant never called the fire department or attempted to warn any of the other tenants. Although defendant recalled talking to some firemen that night, he did not remember the substance of the conversation.

Defendant further testified that he lived alone in his apartment and had the only set of keys. On examination by defense counsel, defendant stated that he thought he went straight to bed after returning home from the party.

Next, Thomas Stuckey, security director for the apartment building, testified as to the construction and the hot water convection heating system of the apartment. On the morning of the fire, Stuckey arrived at the scene approximately one hour after the fire department had been called. After the firemen left, defendant's apartment was locked. It was reopened to remove the drums of debris approximately one week later. The electrical system was left untouched for approximately one week.

On cross-examination, Stuckey testified that the only recognizable furnishings in defendant's apartment after the fire were a floor safe, springs from a hide-a-bed, a metal filing cabinet, and sofa springs. The wood facing on the heating unit located on the north wall was charred and the center was missing and the kitchen cabinets were totally burned off the wall. The refrigerator and range were not removed until approximately two weeks later. On redirect, Stuckey explained that the metal portion of the heating unit always remained cool enough to touch.

Next, Lieutenant Andrew Blaine, Chicago firefighter, testified that in December 1974, he was assigned to investigate fires for the Bureau of Fire Investigation, a branch of the Chicago fire department On the morning of December 11, 1974, Blaine and his partner, Ronald Drash, arrived at the scene of the fire after the main body of the blaze had been extinguished, went immediately to defendant's apartment, perused the area, talked to the firefighters who were overhauling the debris, talked to defendant, and made an investigation of the scene to determine cause and origin. When Blaine asked defendant what had happened, defendant told him that he had been smoking on his sofa after returning from a party and had dropped a lit cigarette on the sofa.

[74 Ill.Dec. 694] which specialized in determining the cause and origin of fires. Blaine had been trained in investigation at the fire academy, had responded to over 10,000 fires and had investigated approximately 3000 fires.

Blaine further stated that after he and Drash searched the apartment, eliminating various causes of ignition, it was their "opinion at that time * * * that the fire had originated in the sofa by careless use of smoking materials." Although Blaine found some fire damage in the kitchen and bathroom, he was satisfied by the height and depth of the burning or charring that the fire did not originate there. Moreover, there was no indication of arson or of an incendiary fire. He has never seen hot water heaters or pipes cause a fire. Further, the burn patterns in defendant's apartment indicated that the fire had occurred on the north wall of the apartment in the living room area, outside of the radiator. Blaine noticed nothing unusual about the electrical circuitry. During the investigation, Blaine took notes which he referred to later that day when he and Drash wrote their reports.

On cross-examination, Blaine testified that although there was damage to the bedroom area walls and windows, it was clear that there had not been as much heat in the bedroom area as there had been over the sofa in the living room area. Blaine admitted that at one time he had stated that he thought the fire could have started in the hide-a-bed, but, at that time, he was under the impression that the sofa was used as a bed. Defense counsel then attempted to impeach Blaine by reading from a deposition taken in May 1975, in which Blaine stated that he thought the fire originated in the bedroom. In response, Blaine explained that he had been confused about the directions of the apartment at that time. Defense counsel then read from a deposition taken in October 1977, in which Blaine stated that: "We determined the fire had originated in the area against the wall where the sofa had been. * * * I believe it was an interior wall." At trial, Blaine testified that the fire originated on the north wall which was an exterior wall. In response to whether he meant the wall near the hi-fi, Blaine indicated that he was referring to the couch because when the window was opened above the smoldering couch, the oxygen would have raised the temperature of the fire and caused the more intense burning and charring in that area. Regarding the lighting in the apartment, Blaine indicated that although he is not an electrician, he inspected the lights "for signs of them burning, some such signs. I assume it wasn't electrical." There was no shorting damage at the outlet behind the couch.

Defense counsel then attempted to impeach Blaine on several points by reading from depositions in which Blaine had stated: (1) he did not know whether wires in the outlets were damaged; (2) he did not recall defendant's telling him that his dropped cigarette had caused the fire; (3) it could possibly have been an electrical fire caused by a malfunction of electrical circuitry behind the sofa. In response, Blaine testified that: (1) he never stated that he had examined the wires in the outlets; he merely looked at the outlets; (2) the questions asked at trial and during the deposition were dissimilar and required...