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31 July 2000

JUSTICE McLAREN delivered the opinion of the court:

Plaintiff, Adeline Cosgrove, appeals from the trial court'sorders granting summary judgment in favor of defendants, NorthernIllinois Gas Company (NiGas) and Commonwealth Edison (ComEd). ComEd also appeals from the dismissal of its counterclaim forcontribution against NiGas. We affirm in part, reverse in part,and remand.

On July 25, 1995, Cosgrove and her roommate, William Bozic,noticed the power lines sparking in the alley behind theirresidence. The lines were still sparking when Cosgrove and Bozicwent to bed. At approximately 3 a.m. on July 26, a fire erupted inthe alley behind Cosgrove's home. Bozic saw an electrical wirefall to the ground during a storm and a nearby tree catch on fire. Both Cosgrove and Bozic also observed a tall blue flame shootinginto the air.

On December 31, 1996, Cosgrove filed a four-count complaint,with counts sounding in negligence and res ipsa loquitur againstboth ComEd and NiGas. ComEd filed a counterclaim for contribution against NiGas. Cosgrove filed amended and second amendedcomplaints, eventually alleging negligence and res ipsa loquituragainst both defendants and spoliation of evidence against NiGas.

On April 15, 1999, the trial court granted NiGas's motion forsummary judgment on all counts against it contained in Cosgrove'ssecond amended complaint. Subsequently, the trial court alsogranted summary judgment in NiGas's favor on ComEd's counterclaim. ComEd was granted summary judgment on count III of Cosgrove'ssecond amended complaint alleging res ipsa loquitur. The trialcourt made each of these orders final and appealable pursuant toSupreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). This appealfollowed.

Cosgrove contends that the trial court erred in grantingsummary judgment to ComEd and NiGas. Summary judgment isappropriate when the pleadings, depositions, and admissions onfile, together with the affidavits, demonstrate that there existsno genuine issue as to any material fact and that the moving partyis entitled to judgment as a matter of law. McNamee v. State, 173Ill. 2d 433, 438 (1996). A trial court considering a summaryjudgment motion must construe the pleadings, depositions,admissions, and affidavits strictly against the moving party andliberally in favor of the nonmovant. Outboard Marine Corp. v.Liberty Mutual Insurance Co., 154 Ill. 2d 90, 131-32 (1992). Summary judgment should be granted only where the movant's right tojudgment is clear and free from doubt; it should be denied where areasonable person could draw divergent inferences from undisputedfacts. Outboard Marine, 154 Ill. 2d at 102. On appeal, summaryjudgment rulings are given a de novo review. Outboard Marine, 154Ill. 2d at 102.

Cosgrove first argues that summary judgment was improperlygranted in NiGas's favor on count II of the second amendedcomplaint, which alleged that NiGas was negligent in itsinstallation, maintenance, and inspection of its gas lines. ANiGas natural gas pipe line ran in the alley behind Cosgrove'sresidence. Cosgrove alleged that the pipe leaked on or about July25-26, 1995, and the escaping gas ignited, causing a large fire andreleasing toxic gases, thereby injuring Cosgrove.

To properly state a cause of action in negligence, a plaintiffmust establish the following elements: (1) the defendant owed aduty of care to the plaintiff; (2) the defendant breached thatduty; and (3) the breach was the proximate cause of the plaintiff'sinjuries. Nowak v. Coghill, 296 Ill. App. 3d 886, 892 (1998). NiGas argues that it did not owe a duty to Cosgrove unless it hadnotice of a leak or possible defect. This is not the law. As oursupreme court has stated:

"Gas is a dangerous commodity, and the corporation whichundertakes to furnish such service must exercise a degree ofcare commensurate to the danger which it is its duty to avoidand must use every reasonable precaution in guarding againstinjury to the person or property of others." Metz v. CentralIllinois Electric & Gas Co., 32 Ill. 2d 446, 450 (1965).

NiGas's argument, if adopted, would allow a gas company to foregoinspection and maintenance of its facilities and escape liabilityfor damages if no one reported the smell of gas before a gas lineexploded. Clearly, NiGas owes a duty to inspect and maintain itslines so that it can safely provide gas to its customers. SeeOliver v. Peoples Gas Light & Coke Co., 5 Ill. App 3d 1093, 1098(1972) ("Defendant supplies a potentially dangerous explosivecommodity. By virtue of its superior knowledge of that commodity'scharacteristics, defendant is obligated to safeguard those itsupplies"). In this case, ignorance is not bliss.

We must next address the element of a breach of duty. At thetime of the fire, the Westmont fire department and a ComEd crewresponded to the scene. NiGas was not notified of the fire. Intheir depositions, neither Cosgrove, Bozic, Fire Captain RichardBocek, nor any of the ComEd crew members could recall noticing thesmell of natural gas before or during the fire. It was onlyseveral hours after the fire had been extinguished that theWestmont fire department was recalled to the scene because of thesmell of gas, and a NiGas crew was called in by the fire departmentpersonnel after they detected a leak in the gas line in the alleybehind Cosgrove's residence. However, both Cosgrove and Bozicstated that they saw a large blue flame shooting up from the groundat the time the tree started on fire. This evidence raises thequestion of whether gas leaking from NiGas's pipe contributed tothe fire that allegedly caused Cosgrove's injuries. If it did, then the question of whether a breach of NiGas's duty to safelysupply gas remains. Thus, construing the pleadings, depositions,admissions, and affidavits strictly against NiGas, we conclude thata material question of fact remains regarding the role of naturalgas in the fire and NiGas's responsibility for the leak of the gas. Therefore, the trial court erred in granting summary judgment infavor of NiGas on count II of the second amended complaint.

Cosgrove next argues that the trial court erred in grantingsummary judgment in favor of the defendants on counts III and IV,which alleged res ipsa loquitur against ComEd and NiGas,respectively. The doctrine of res ipsa loquitur allows aninference or presumption of negligence to be raised bycircumstantial evidence. Dyback v. Weber, 114 Ill. 2d 232, 238(1986). When res ipsa loquitur is invoked, the plaintiff bears theburden of proving that (1) the occurrence is one that would notordinarily occur in the absence of negligence; and (2) thedefendant had exclusive control of the instrumentality that causedthe event. Nickel v. Hollywood Casino-Aurora, Inc., No. 2--99--0707, slip op. at 8 (June 6, 2000). Res ipsa loquitur does notapply if the injury can be as readily attributed to pure accidentas to the defendant's negligence. Nickel, No. 2--99--0707, slipop. at 8.

Looking forward to count III, we conclude that the trial courtproperly granted summary judgment in favor of ComEd. Count IIIconcludes that the fire at issue here was of the kind that "wouldnot occur absent negligence of some kind on the part of" ComEd. Wedisagree. Negligence is not ordinarily the sole reason for adowned power line. Other forces may cause a downed power line,such as wind, lightning, storm, or an animal chewing through thewire. Captain Bozek of the Westmont fire department stated in hisdeposition that any of those things could have brought the linedown. During the night in question, there had been strong storms,and rain was still falling when the fire crew arrived at the scene. There are injuries that may result from occurrences without faulton the part of anyone. Erckman v. Northern Illinois Gas Co., 61Ill. App. 2d 137, 145 (1965). A fire caused by a fallen power linemay not result solely from negligence; therefore, res ipsa loquiturdid not lie against ComEd in this case.

Addressing count IV, we conclude that the trial court erred ingranting summary judgment in favor of NiGas. A ruptured gas linefeeding a fire does not ordinarily occur in the absence ofnegligence. Gas mains are buried beyond the reach and interferenceof the general public, and the probability is great that breakstherein are occasioned by defects in the pipes or improperutilization thereof. Metz, 32 Ill. 2d at 451. In the ordinarycourse of events, gas explosions and fires do not occur; when onedoes occur, an inference of fault is justifiable. See Metz, 32Ill. 2d at 451. This inference may be explained or rebutted. Metz, 32 Ill. 2d at 449. However, even if the gas company isblameless, its superior knowledge of the facts at hand and itsresponsibility to the community create a duty to come forward andmake an explanation. Metz, 32 Ill. 2d at 451.

Citing, among others, Cox v. Yellow Cab Co., 61 Ill. 2d 416(1975), NiGas argues that res ipsa loquitur is inapplicable whenone of the instrumentalities that cause the injury is not under thecontrol or management of the defendant. See Cox, 61 Ill. 2d at421. NiGas does not argue that it was not in exclusive control ofits pipeline; however, it argues that it was not in control of thepower line, which was "a" cause of the fire. However, it has longbeen held that, if escaping gas is a proximate cause of theplaintiff's injury, the immediate cause of ignition is irrelevant. See McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89, 98-100(1922); Bubrick v. Northern Illinois Gas Co., 130 Ill. App. 2d 99,107 (1970). The sparking provided by the power line would havebeen merely a condition that acted upon the release of the gas, nomore the cause than if Cosgrove had been standing near the gas linesmoking a cigarette that then ignited the gas. Furthermore, thepresence of some control or possession in a person other thandefendant does not necessarily destroy the application of res ipsaloquitur. Erckman, 61 Ill. App. 2d at 148. One must look at thenature of the surrounding circumstances and the intervening controlof another. Erckman, 61 Ill. App. 2d at 148. In Erckman, res ipsaloquitur was held to apply against Northern Illinois Gas for a gasleak that eventually exploded, even though the plaintiff had alsoalleged negligence against a plumbing contractor that had done workon the street near the gas line, allegedly damaging the pipe. Here, ComEd's possession of the power line is irrelevant. Thespark provided by that line does not negate NiGas's duty to safelytransport gas through its pipeline. Res ipsa loquitur was properlypleaded against NiGas, and the trial court erred in grantingsummary judgment in NiGas's favor.

Cosgrove next contends that the trial court erred in grantingsummary judgment in NiGas's favor on count V, which allegedspoliation of evidence. When it repaired the gas leak on July 26,NiGas removed the piece of pipe from which the gas escaped. Thepiece of pipe has now been lost or destroyed by NiGas.

There exists in Illinois no independent cause of action forspoliation of evidence; however, an action for negligent spoliationcan be stated under general negligence law. Boyd v. TravelersInsurance Co., 166 Ill. 2d 188, 192-93 (1995). Thus, to state acause of action for negligent spoliation, a plaintiff must pleadthe existence of a duty owed by the defendant to the plaintiff, abreach of that duty, an injury proximately caused by the breach,and damages. Boyd, 166 Ill. 2d at 194-95.

In general, there is no duty to preserve evidence; however,such a duty may arise through an agreement, a contract, a statute,a "special circumstance," or by affirmative conduct. Boyd, 166Ill. 2d at 195. In any of those instances, a defendant owes a dutyof care to preserve evidence if a reasonable person in thedefendant's position should have foreseen that the evidence wasmaterial to a potential civil action. Boyd, 166 Ill. 2d at 195. Causation must be alleged by sufficient facts to support a claimthat the loss or destruction of evidence caused the plaintiff to beunable to prove an underlying lawsuit. Boyd, 166 Ill. 2d at 196.The plaintiff must demonstrate that, but for the defendant's lossor destruction of the evidence, the plaintiff had a reasonableprobability of succeeding in the underlying suit; the plaintiffneed not show that he or she would have prevailed.  Boyd, 166 Ill.2d at 196-97, n.2.

Because we have reinstated the claim of res ipsa loquituragainst NiGas, this issue has become moot. With a valid res ipsaloquitur claim in place, the burden is on NiGas to demonstrate thatthe gas leak and fire did not result from its negligence. Themissing section of pipe will not prevent Cosgrove from proving hercase; it may prevent NiGas from bearing its burden. Since the lossof the pipe will not prevent Cosgrove from proving her case, thereis no issue of material fact present, and summary judgment wasproper.

ComEd also appeals from the trial court's order grantingsummary judgment in favor of NiGas on ComEd's counterclaim seekingcontribution from NiGas. Since we have reinstated the negligenceand res ipsa loquitur counts against NiGas, NiGas is "subject toliability in tort" pursuant to section 2 of the Joint TortfeasorContribution Act (740 ILCS 100/2 (West 1998)), and summary judgmentin NiGas' favor was improper. Therefore, we reverse the trialcourt's grant of summary judgment on the counterclaim.

For these reasons, the judgment of the circuit court of DuPage County is reversed as to counts II and IV and affirmed as tocounts III and V of Cosgrove's second amended complaint, andreversed as to ComEd's counterclaim, and the causes are remandedfor further proceedings.

Affirmed in part and reversed in part; cause remanded.

GEIGER and COLWELL, JJ., concur.